Wednesday, August 31, 2011

Pak legal system incapable to prosecuting terrorists: US

Washington: Asserting that anti-terrorism courts of Pakistan had an acquittal rate of 75%, the US has said that Islamabad’s legal system is almost incapable of prosecuting suspected terrorists, including those involved in the 2008 Mumbai attacks.
“The review, in conjunction with information provided by Pakistani law enforcement partners, painted a picture of a legal system almost incapable of prosecuting suspected terrorists,” said the report.
As such, the US does not appear to be have high hopes in the court case related to the Mumbai terrorist attack, which it is closely monitoring as six Americans were killed in this terrorist attack by Pakistan-based LeT terrorists.
It determined that “the accused in numerous highprofile terrorism incidents involving US victims had all been acquitted by the Pakistani legal system”.
“The Federal Bureau of Investigation has assisted with the respective prosecutions,” the report said. Noting that Pakistan’s Anti-Terrorism Bill 2010 remained before parliament, the report said it proposes 25 amendments to Pakistan’s original Anti-Terrorism Act of 1997, The amendments included provisions that broaden the definition of terrorism, expand the authority of law enforcement agencies investigating terrorist incidents, authorize detention of subjects for 90 days before presenting them before a court, and allow increased electronic surveillance and wiretapping. PTI

Know more about The Gujarat Public Trusts Act (Gujarat Public Trust Bill, 2011 (Proposed Act)

Gujarat Public Trust Bill, 2011 (Proposed Act)

Sailent Features :

1. In any proceeding related to Trust in Court, Tribunal or Forum, C.C. is necessary party,
(Sec. 32). The cost of litigation incurred by C.C. shall be realized from the concerned
Trust. (Sec. 107, 109 & 110). It is an extra burden on Trusts.
2. Trusts have to submit budget, one month before of commencement of financial year
(See. 33). Income and expenditure of Trusts are fluctuating.
3. C.C. and Tribunal may direct Trusts regarding collection of fund and use thereof,
directions are binding. (Sex. 39). It is encroachment in the right of management of
4. Power of Inspection and search. (Sec. 41) Harshest provision amongst all other similar
Trust Acts of States in India.
5. Assessment of loss suffered by Trust and realization thereof from person reponsible
including Trustee. (Sec 42 to 45). No such provision in any similarly situated Trust Acts.
6. On application in writing by two or more persons scheme may be framed for management
of Trust or order of amalgamation. (Sec. 54).
7. The fee calculated on the basis of audited balance sheet has to be deposited along with
submission of balance sheet, subject to assessment, (Sec. 82(2)), It is amendment in
practice prevailing.
8. Penalty for violations enhanced @ 10% to 50% i.e. Rs. 2000/- to Rs. 10,000/-
(Sec. 86). Violation of provisions of Act is congnizable offence and sentence up to 3
years imprisonment. (Sec. 87) Highest and harshest penalty vis-a-vis similarly situated
other Trust Acts. See chart for penalty prescribed in other State Acts.
9. Amalgamation or merger of Trust may be ordered in specified conditions.
(Sec. 88 to 92)
10. State Government may appoint Administrator for Trust in specified circumstances
(Sec. 93).
11. Trusts have to file quarterly return of Income and expenditure. (Sec. 94). It is extra
burden on management.
12. Constitution of Trubunal having Appellate and Original Jurisdiction. expenses incurred
on Trubunal shall be realized from Public Trust Fund. (Sec. 96 to 105).


1. In any proceeding related to Trust in any Court, Tribunal of Forum, C.C. is necessary
party, in his absence order/judgment deemed to be void. (Sec. 32). The entire cost of
litigation incurred by C.C. or Tribunal shall be realized from the concerened Trust.
(Sec. 107, 109 & 110). It is an extra burden on Trusts and contrary to the fundamental
principle of bearing coast of litigation.
2. Trust have to submit budget, one month before commencement of financial year (Sec.
33). So far Trusts are concerned incomes and expenditures are fluctuating, depends
upon the prevailing circumstances.
3. C.C. and Tribunal may direct Trusts regarding collection of fund and use thereof, the
object of Trust and directions are binding. (Sec. 39). An encroachment upon the right
of management of the Trust.
4. Power of Inspection and search. (Sec. 41) Harshest provision amongst all other similar
Trust Acts in India.
5. Assessment of loss suffered by Trust and realization thereof from Trustees. (Sec. 42 to
45). No such provision in any similarly situated Trusts Acts.
6. On application in writing by two or more persons interested in the Trust, scheme may be
framed for management of Trust or order of amalgamation or merger. (Sec. 54).
7. Penalty for violations enhanced varying between Rs. 2000/- to Rs. 10,000/- (Sec. 86).
Violation of provisions of Act is congnizable offence and sentence up to 3 years
imprisonment (Sec. 87). Highest and harshest penalty vis-a-vis similarly situated other
Trust Acts. Please see enclosed chart for penalty prescribed in other State Acts.
8. Amalgamation or merger of Trust may be ordered in specified conditions. The property
of Trust may vest in State. (Sec. 88 to 92).
9. State government may appoint Administrator for Trust in specified circumstances. (Sec.
10. Trusts have to file quarterly return of Income and expenditure. (Sec. 94). It is extra
burden on management. No such provision in other Trust Acts.
11. Constitution of Tribunal having Appellate and Original Jurisdiction. Expenses incurred
on Tribunal shall be realized from Public Trust Fund. (Sec. 96 to 105).
Aforesaid are few exemplary provisions, which on face of it shows that in the event
provisions of Bill becomes operative, it would be difficult rather impossible for the Trusts
to carry on their operation in the State. It is worth to point out that majority of Trustees of
the Public Trusts are are working honorary with sole objective to serve humanity and
leaving beings.


1. Charitable and Religious Endowments Act, 1920 - NO penalty. Default or violation civil
2. Charitable and Religious Trusts Act, 1920 - No penalty. Default or violation civil wrong.
Note : In many states including State of Uttar Pradesh provisions of these Acts are
3. Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act,
1987 - Fine up to Rs. 200/- (Sec. 147).
4. Bihar Hindu Religious Trusts Act, 1950 - Fine up to Rs. 500/- on failure to pay fine
simple imprisonment which may extend up to 2 months (Sec. 67)
5. Bombay Public Trust Act, 1950 - Fine up to Rs. 2000/-. (Sec. 66 and 67).
6. Karnataka Hindu Religous Institutions and Religious Endowments Act, 1997 - No penal
7. Kerla - Travanchore - Cochin Hind Religious Institutions Act, 1950 - No penal provision.
8. Madhya Pradesh Public Trusts Act, 1951 - Penalty up to Rs. 1000/- (Sec. 33).
9. Orissa Hindu Religious Endowments Act, 1969 - Fine u to Rs. 500/- and in default to
pay fine up to Rs. 50/- each day. (Sec. 70).
10. Rajasthan Public Trusts Act, 1959 - Fine up to Rs. 500/- (Sec. 70).
11. Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - No penal provision.
Rather Trustee impose fine or suspend office holder or servant of Trust (Sec. 56).
Encroacher and unlawful possessor of Trust property be sentenced imprisonment up to
3 months (Sec. 79 B).

Tuesday, August 30, 2011

HC quashes Kalmadi plea to attend House

 The Delhi High Court on Tuesday dismissed the plea of sacked CWG Organising Committee Chairman Suresh Kalmadi, a Lok Sabha MP, seeking permission to attend the ongoing Parliament session.
“In view of the gravity of the offence and the allegation of huge magnitude, it would be totally inappropriate to grant him permission solely on the ground of freedom of speech inside the Parliament House, on the foundation that he has to meet the Constitutional obligation. The writ petition is dismissed,” the bench, comprising Chief Justice Dipak Misra and Justice Sanjiv Khanna, said.
The Congress Lok Sabha member from Pune had moved the division bench of the High Court challenging the order of its single-judge bench of Justice Rajiv Sahai Endlaw, who had rejected his plea for the permission dubbing it as “an attempt to get fresh air outside the prison”.
Kalmadi had filed the appeal contending that the single judge had wrongly equated the rights of an MP with those of common people despite the Constitution conferring some privileges on parliamentarians.
The 67-year-old MP is facing criminal proceedings for his alleged role in awarding a lucrative Commonwealth Games contract to a Swiss firm at inflated rates.
Kalmadi had sought the court's permission claiming that attending Parliament session is his duty towards his electorate and is linked to his right to freedom of speech and expression. Appearing for Kalmadi, counsel Ashok Desai had yesterday told the bench that it is the constitutional duty of a parliamentarian to attend the House and this duty is also linked to some privileges conferred upon him under Article 105 of the Constitution.
He had also submitted that Kalmadi being a representative of people with a long standing of over 28 years, it is his duty to represent his constituency in Parliament. “I am not going to attend any ceremony but I have to do my constitutional duty,” Desai said. PTI

Wholesale markets can be shifted to outskirts: SC

Maintaining that public interest should prevail over private interests, the Supreme Court has ruled that wholesale market operators have no fundamental right to carry on their trade in cities as they cause serious traffic congestion and public inconvenience.
A bench of justices Markandeya Katju and C K Prasad said world over the practice was to shift wholesale markets to the outskirts and hence authorities in India too should be granted the liberty to shift wholesale markets if and when required.
“It is true that the right to do business is a fundamental right guaranteed under Article 19(1)(g) of the Constitution but this right is subject to reasonable restrictions under Article 19(6).
“The reasonableness of the restriction has to be determined in an objective manner and has to be seen from the point of view of the interest of the general public and not merely from the point of view of the persons upon whom the restrictions are imposed,” Justice Katju, writing the order, said.
The apex court passed the ruling while dismissing the appeal filed by several wholesale merchants from Assam challenging the state government's decision to shift their market from Guwahati city to the outskirts as they were causing congestion in the city.

Widow is first rightful candidate for family pension,The Principle Holds Good Even In Case Of Desertion

Even if a retired employee nominates other relatives for family pension, the benefits are to be given only to the widow, even if there is a case of desertion. The Gujarat high court has ruled this in a case involving a school teacher, who did not want his separated wife to obtain benefits of family pension.
Yasinmiya Malek was a teacher in Experimental High School in Vasna. After his retirement, he got retirement benefits. He passed away in November 2008, but before that he nominated his nephew Majiuddin and niece Khairunnisa to receive family pension after his death. He did not nominate his wife Abeda Khatun and eight children on the ground that they had deserted him.
A month after Malek’s death, his widow wrote to the school authorities claiming the benefits of family pension, and the school management accordingly forwarded the request to the director of pension and provident fund. The director refused to consider name of the widow on the ground that Malek had nominated only two persons, his nephew and niece.
On refusal from the pension & PF office, the widow moved the high court, but a single-judge bench rejected her claim over family pension because she was not nominated by her husband. Moreover, the court reminded her that her husband did not want to give any share or benefit to his wife.
She did not give up and filed an appeal, and a division bench of Justice V M Sahai and Justice G B Shah heard the case. It was contended on behalf of Abeda’s counsel that she had lived with her husband for 27 years before she left him with her eight children. Her marriage with Malek subsisted when he expired. Hence being his legally wedded wife, Abeda was the rightful candidate for availing family pension.
The bench cited Gujarat Civil Services (Pension) Rules, 2002, which describes family means wife in the case of a male government employee. Taking facts of the case into consideration, the judges observed that even though the husband and wife might be staying separately, the widow was entitled for family pension.
“The issue of desertion is never a criteria for granting and denying the family pension. For grant of family pension, the only consideration would be that the claimant ought to be legally wedded wife or husband of the pensioner and he/ she be alive on the date of death of the pensioner. Even if the pensioner has nominated third person excluding his wife, then also, the right of the legitimate wife/widow to claim family pension cannot be brushed aside,” the court observed and ordered the director of pension & provident fund to pay the amount to the widow instead of the nephew and niece.

RTO scam: Still waiting to hear from state, CAG tells HC

The Comptroller and Auditor General of India (CAG) has intimated the Gujarat high court that his office did not hear about any measure initiated by the Gujarat government in a case involving alleged monetary irregularities by RTO. The irregularities, to the tune of Rs 693 crore, were highlighted in 2006 to be in the Check Post Automation System (CPAS) by RTO.
In an affidavit filed by deputy accountant general, the CAG office told the court that it sticks to the report it submitted in 2006 and maintained that the discrepancies were noticed during audit. To court’s earlier question whether CAT heard about any remedial measure on the part of the government, the affidavit said that nothing was communicated from the state government’s end.
Following this, the bench headed by chief justice asked the state government as to which agency should probe this alleged scam. The government sought time to reply to this question. The PIL filed through advocate Tejas Barot has sought CBI probe in this financial irregularity.
The court also asked the Centre’s counsel whether CAG would conduct audit in this scam further and find out the possible irregularity till 2001. CAG has expressed readiness to conduct further audit in this issue.
Citing CAG report of 2006, the petitioner has claimed that when former minister Amit Shah was holding the portfolio of department of ports and transports, the contract for Automatic Vehicle Entry Tax Collection was awarded to Chasmita Engineers Pvt. Ltd. But during this period the system was not functional at 10 different check posts including Shamlaji, Bhilad, Songadh and Dahod. The system was introduced in 2000 as part of technical reforms in the department.
The company has been alleged of causing huge losses to state exchequer in collusion with high-level officials. Even after the CAG report highlighted the scam in 2006, the company’s contract was renewed at the behest of Shah, which resulted in revenue loss of nearly Rs 700693 crore by entering invalid transaction dates, invalid registration numbers and most importantly by making mischief in calculating weight, as most vehicles are overloaded.
Further hearing on this PIL is kept on September 6.

Monday, August 29, 2011

Madras HC stays execution of Rajiv Gandhi's killers

CHENNAI: The Madras high court on Tuesday stayed for eight weeks the execution of three Rajiv Gandhi assassination case convicts.

The three -- Murugan, Santhan and Perarivalan-- lodged in Vellore Jail, were scheduled to be hanged on September 9.

Meanwhile, Tamil Nadu assembly has adopted unanimous resolution urging President to consider review petition of 3 death row convicts in Rajiv Gandhi assassination case.

Granting the interim stay, a bench comprising justices C Nagappan and M Sathayanarayanan observed there had been a delay of over 11 years in the disposal of the mercy petitions filed by the convicts to the President seeking clemency.

The matter involved a question of law, the judges said and admitted the writ petitions and issued notices to the Centre, the state and Tamil Nadu police.

Their case was taken up by senior lawyer Ram Jethmalani and others.

A crowd that had gathered outside the court welcomed the court order. MDMK leader Vaiko, who strongly pleaded for the commutation of capital punishment, was also present in the court.

Service tax coming soon on healthcare, rail tickets?

New Delhi: If the government has its way, you could soon be paying service tax on your hospital bill, rail tickets, several government services, capitation fee and hiring a marriage hall from municipal agency.
A concept note floated by the finance ministry has proposed to exclude only a handful of services — education, funeral and farming activities from the tax net. The list also includes interest and dividend earned, religious services and betting and gambling. In case of health, the ministry has given two options. One is to exclude all services provided by clinical establishments with turnover under Rs 4 crore from the tax net. So apart from your medical bill you will have to pay service tax, which is 10% of the total amount. The second option is to keep hospitals, diagnostic and para-medical services out of the tax net.

Sunday, August 28, 2011

Haren Pandya murder: 12 acquitted, CBI slammed

Ahmedabad: The Gujarat High Court has acquitted 12 people accused of murdering former Home Minister, Haren Pandya. It has also accused the CBI of mishandling the investigation.

Mr Pandya was shot in Ahmedabad in 2003 while he was in his car at the Law Garden.

In 2007, the 12 people accused of his death were convicted by a local court under the Prevention of Terrorism Act (POTA); nine of them were sentenced to life in prison. All the convicts had appealed to the High Court.

NAND KISHORE v. STATE OF M.P. [2011] INSC 590 (7 July 2011)


Nand Kishore ... Appellant
State of Madhya Pradesh ... Respondent

Swatanter Kumar, J.

1. The present appeal is directed against the judgment of the High Court of Judicature of Madhya Pradesh at Jabalpur dated 26th August, 2004 affirming the judgment of the Sessions Judge, Datia, Madhya Pradesh dated 30th December, 1998 convicting all the three accused (appellants/petitioners herein) for an offence under Section 302 read with Section 34 of the Indian Penal Code (IPC) awarding life sentence to each one of them with a fine of Rs.2,000/- each in default thereto to undergo rigorous imprisonment for three years.

2. We must notice that vide order dated 28th May, 2005, the Special Leave Petition in respect of Petitioner Nos.2 and 3, namely, Mahesh Dhimar and Dinesh Dhimar had already been dismissed. Thus, we have to consider the present appeal only in respect of Appellant No.1, namely, Nand Kishore.

3. The learned counsel appearing on behalf of appellant No.1, while impugning the judgment under appeal contended that :

3 A. the prosecution has not been able to prove its case beyond reasonable doubt. In fact, there is no direct evidence to sustain the conviction of the accused. It is further argued that on the contrary, there are serious contradictions between the statements of the alleged eye- witnesses as well as the medical evidence. The accused, thus, was entitled to benefit of doubt and consequent acquittal.

B. In any case, the appellant could not have been convicted at all for an offence under Section 302 read with Section 34 IPC as he had no common intention with other accused. It is further submitted that he shared neither participated in the commission of the crime nor was he carrying any weapon. On the cumulative reading of the evidence, the ingredients of Section 34 IPC are not satisfied and, therefore, conviction of the appellant is vitiated in law.


4. In order to examine the merit or otherwise of these contentions, it would be useful for us to refer to the necessary facts giving rise to the present appeal.

The incident took place on 18th June, 1997 in the night at about 9-9.30 p.m. at Christian Ka Pura, Bangar Ki Haveli. Some young boys of the vicinity informed the complainant, Brij Kishore Bidua, who was later examined as PW1 that a quarrel has taken place between Mahavir, the deceased, and Mahesh Dhimar near the house of Mahesh Dhimar. Upon receiving this information, Brij Kishore, along with Sunil Badhaulia, went running to the Christian Ka Pura where they saw that Mahesh Dhimar was holding both the arms of Mahavir and Dinesh Dhimar was stabbing him with knife in the chest on the left side and Nand Kishore was also pelting stones at him. After receiving these injuries, Mahavir collapsed to the ground. As per the witnesses even after Mahavir fell, Nand Kishore kept pelting stones on him and then they ran away from the site. Brij Kishore and Sunil carried Mahavir to the hospital on their scooter where the doctor examined him and declared him brought dead. It is the 5 case of the prosecution that Mahavir had some dues to recover from Mahesh Dhimar and to recover that money, Mahavir had gone to Mahesh Dhimar but the fight occurred and without any resistance from Mahavir, all the three accused killed him in the manner afore-referred.

At about 10 p.m. the same day Brij Kishore, the brother of the deceased Mahavir, lodged a report in the Police Station at Kotwali Datia where a criminal case No.175/97 under Section 302 read with Section 34 IPC was registered. This was investigated by the Investigating Officer who, during investigation, prepared or caused to be prepared post mortem report, site plan, recovered a knife on the disclosure of Dinesh, recovered bricks, took sample of soil soaked in blood and clothes of the deceased. These things were sent to the forensic science laboratory for examination. After completing the investigation, challan was filed against all the accused persons. They were tried by the Court of competent jurisdiction. The Sessions Judge, Datia, by a detailed and well reasoned judgment dated 30th December, 1998, convicted accused Dinesh for an offence under Section 302 IPC while the 6 other two accused, namely, Nand Kishore and Mahesh Dhimar were convicted for an offence under Section 302 read with Section 34 IPC and sentenced them as aforestated. This judgment was unsuccessfully assailed by the accused before the High Court which dismissed the appeal declining to interfere either with the judgment of conviction or the order of sentence.

5. Dissatisfied from the concurrent judgments of the courts, the accused has filed the present appeal.

6. The statements of PW1, Brij Kishore, Dr. P.K. Srivastava, PW5 and PW8, Narendra Singh, (Investigating Officer) have to be examined in some detail.

7. PW1 is the eye-witness to the occurrence and while fully supporting the case of the prosecution, he stated that Mahesh Dhimar's house was about 100 ft. away from the place of occurrence. He narrated the above facts and stated that Rajendra and Sunil had also reached the spot following him and they had witnessed the occurrence. They took the deceased to the hospital where he was declared brought dead. 7 This witness did not refer to any animosity between the deceased and the accused. PW8 has referred to the entire investigation, various recovery memos as well as registration of the FIR (Exhibit P1). Statement of PW1 is corroborated with the report of Exhibit P1.

8. Dr. P.K. Srivastava, PW5, stated that on 19th June, 1997 at around 7.00 O'clock in the morning, he had examined the dead body of the deceased and there were incised wounds on his body on the left side of the chest, right thigh, in the heart in left lung and 11-12 other lacerated scratches and internal wounds etc. According to him, injury on the heart caused death and the deceased had died round about 10-14 hours before the post mortem examination.

9. There are two main discrepancies which have been highlighted on behalf of the appellant to claim the benefit of doubt. Firstly, that according to the doctor, there were nearly 16 wounds on the body of the deceased, while the eye- witnesses have referred to just two blows by accused Dinesh Dhimar on the left side of the deceased; and secondly that the 8 injuries were stated to have only been caused by a sharp weapon. Brij Kishore (PW1) had clearly stated that Dinesh had inflicted the injuries upon the body of the deceased with a knife. According to Investigating officer (PW8) and Munna Lal (PW2), the said knife was recovered by Panchnama of recovery (Ex. P-6). However, PW1 did not specifically state in the Court that the knife was recovered by going to the house of the accused. There is some element of difference between these statements but it in no way amounts to a material contradiction or discrepancy which has caused any prejudice to the accused. These so-called discrepancies can easily be explained and have been dealt with in the judgment under appeal appropriately. In his examination in which PW1 has stated that after arrest of Dinesh, the police had questioned him and he had told them about the knife which was recovered. However, he stated that he does not remember the exact place from where the recovery was made due to lapse of time. He, however, with certainty states that a panchnama was prepared and it was signed. In his cross examination he categorically stated "the knife was recovered before me when I 9 was called in Kotwali by Vermaji and I had seen that knife in kotwali and the knife had been recovered before the statement of Dinesh was recorded'. This evidence of the witness has to be read in conjunction with the statement of PW8 and PW 2. Upon such reading recovery of the knife from the house of the accused is established. Further, the doctor has referred to various injuries on the body of the deceased including abrasions and small cuts which could have been a result of pelting of stones by Nand Kishore upon the deceased even after he had fallen on the ground. While rejecting the contention with respect to the second alleged discrepancy, it must be borne in mind that the Court has to examine the statement of a witness as a whole. The Court may not be in a correct position to arrive at any final conclusion while only reading or relying upon a sentence in the statement of a witness that too by reading it out of context. The evidentiary value of a statement should normally be appreciated in its correct perspective, attendant circumstances and the context in which the statement was made. As far as the alleged discrepancy with regard to recovery of knife is concerned, it is 10 not possible for the Court to attach undue importance to this aspect. The court has to form an opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements, as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr. [(2008) 17 SCC 587], Arumugam v. State [(2008) 15 SCC 590] and Mahendra Pratap Singh v. State of Uttar Pradesh [(2009) 11 SCC 334]. The knife was recovered in furtherance to the disclosure statement made 11 by Dinesh Dhimar. The recovery memo which was duly proved in accordance with law, according to the medical evidence given by PW5, and the statement of the investigating officer, PW8, clearly show that knife was recovered from the house of Dinesh Dhimar and the injuries on the body of the deceased were inflicted by the knife. Thus, these alleged discrepancies can hardly be of any advantage to the accused.

10. Another very significant aspect of this case is that the prosecution had not examined Rajendra and Sunil as prosecution witnesses and this issue was raised on behalf of the defence that the Court should draw adverse inference from non-examination of these witnesses. Witness Rajendra was given up as the prosecution felt that he would be hostile to the case of the prosecution but Sunil himself was examined by the accused as its own witness. Once Sunil was examined as witness of the defence, the objection taken by the appellant loses its legal content. DW1, though appeared as witness for the defence, supported the case of the prosecution resulting in his being declared as a hostile witness by the counsel appearing for the accused. Therefore, the statement of DW1 12 could be and has rightly been relied upon by the learned Sessions Judge while convicting the accused of the offence. The statement of DW1 has fully corroborated the statement of PW1. He stated that there were nearly 20 to 30 houses in that Mohalla and denied the suggestion made to him by the defence counsel that he had not seen anything on the fateful day and was not witness to the occurrence. He also, specifically, denied the suggestion that he was related to the family of the deceased. In his cross-examination, he has clearly stated that Mahesh Dhimar had caught hold of both the hands of the deceased and Dinesh Dhimar had given blows on the chest of the deceased by a knife and Nand Kishore had pelted stones on the deceased. Lastly, he also stated that he had taken the deceased to the hospital along with PW1. Confronted with this evidence, the appellant can hardly even attempt to argue that there is no definite evidence on record to prove the commission of the offence by the appellant. There is definite documentary, ocular and medical evidence and more definitely statement of defence witness itself to repel the plea of the appellant that he has been falsely implicated in the case. 13

11. Now, we would examine whether the conviction of the appellant under Section 302 with the aid of Section 34 by the courts is sustainable in law or not. For the application of Section 34 IPC, it is difficult to state any hard and fast rule which can be applied universally to all cases. It will always depend upon the facts and circumstances of the given case whether the persons involved in the commission of the crime with a common intention can be held guilty of the main offence committed by them together. Provisions of Section 34 IPC come to the aid of law while dealing with cases of criminal offence committed by a group of persons with common intention. Section 34 reads as under :

"34. Acts done by several persons in furtherance of common intention.-- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

A bare reading of this section shows that the section could be dissected as follows :

(a) Criminal act is done by several persons;

14 (b) Such act is done in furtherance of the common intention of all; and (c) Each of such persons is liable for that Act in the same manner as if it were done by him alone.

In other words, these three ingredients would guide the court is determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once criminal act and common intentions are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word `done'. It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a 15 participant in the joint act which is the result of their combined activity. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally, i.e., he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between `common intention' on the one hand and `mens rea' as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be co-incidental with or collateral to the former but they are distinct and different.

12. Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it 16 was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. {Refer to Brathi alias Sukhdev Singh v. State of Punjab [(1991) 1 SCC 519]}.

13. Another aspect which the Court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any pre- determined plan to commit such an offence. This will always depend on the facts and circumstances of the case, like in the present case Mahavir, all alone and unarmed went to demand money from Mahesh but Mahesh, Dinesh and Nand Kishore got together outside their house and as is evident from the statement of the witnesses, they not only became aggressive but also committed a crime and went to the extent of stabbing him over and over again at most vital parts of the body puncturing both the heart and the lung as well as pelting stones at him even when he fell on the ground. But for their participation and a clear frame of mind to kill the deceased, 17 Dinesh probably would not have been able to kill Mahavir. The role attributable to each one of them, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the deceased Mahavir. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and giving such serious blows and injuries with active participation shows a common intention to murder the deceased. In these circumstances, the conclusions arrived at by the trial Court and the High Court would not call for any interference.

14. The learned counsel appearing for the appellant had relied upon the judgment of this Court in the case of Shivalingappa Kallayanappa & Ors. v. State of Karnataka [1994 Supp. (3) SCC 235] to contend that they could not be charged or convicted for an offence under Section 302 with the aid of Section 34 IPC. The said judgment has rightly been distinguished by the High Court in the judgment under appeal. In that case, the Supreme Court had considered the 18 role of each individual and recorded a finding that there was no common object on the part of the accused to commit murder. In that case, the court was primarily concerned with the common object falling within the ambit of Section 149, IPC. In fact, Section 34 IPC has not even been referred to in the afore-referred judgment of this Court.

15. Another case to which attention of this Court was invited is Jai Bhagwan & Ors. v. State of Haryana [(1999) 3 SCC 102]. In that case also, the Court had discussed the scope of Section 34 IPC and held that common intention and participation of the accused in commission of the offence are the ingredients which should be satisfied before a person could be convicted with the aid of Section 34 IPC. The Court held as under :

"10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred 19 from the facts and circumstances of each case."

16. The facts of the present case examined in light of the above principles do not leave any doubt in our minds that all the three accused had a common intention in commission of this brutal crime. Each one of them participated though the vital blows were given by Dinesh Dhimar. But for Mahesh catching hold of arms of the deceased probably the death could have been avoided. Nand Kishore showed no mercy and continued pelting stones on the deceased even when he collapsed to the ground. The prosecution has been able to establish the charge beyond reasonable doubt.

17. The judgments of the courts below do not suffer from any legal infirmity or appreciation of evidence. While finding no merit in the appeal, we dismiss the same.


[Dr. B.S. Chauhan]

[Swatanter Kumar]
New Delhi;


(Arising out of SLP(C ) No. 20693-20694 OF 2009)

Jagdish Prasad ... Appellant
State of Rajasthan & Ors. ... Respondents


Swatanter Kumar J.

Leave granted.

These appeals are directed against the common judgment of the High Court of Judicature of Rajasthan, Jaipur Bench, at Jaipur dated 17th April, 2009 whereby the High Court in substance upheld the order of the Rajasthan Civil Services Appellate Tribunal, Jaipur (in short the `Tribunal') dated 8th February,1999 and issued certain further directions to the respondents to undertake fresh 2 exercise for promotion to the post of District Transport Officer (in short the `DTO') from the post of Motor Vehicle Inspectors. At the very outset we may refer to the relevant part of the Division Bench judgment dealing with the subject in question and issuing the directions which reads as under:

"There cannot be any dispute and as has been decided by the Apex Court that clubbing of vacancies could be made only for the purpose of direct recruitment. However, promotions have to be made on the basis of year wise determination of vacancies to the candidates eligible for the particular year who come in the zone of consideration for the particular year as also been referred above. In the present case, it appears that State Government had given a complete go-bye to the provisions of the relevant Rules and while clubbing the vacancies from 1983- 84 fill 1993-94, the promotions have been made accordingly. The clubbing of vacancies for more than 10 years have not only created complications so far as reservation of the posts as per relevant roster are concerned, but entire 3 procedure of zone of consideration for each hear have been disturbed. Merely deletion of the condition of qualifying examination in the year 1992 will not justify the action of the State government in clubbing all the vacancies of more than 10 years and give promotions to persons making a new zone of consideration and reservation also accordingly. On the face of it the whole action of the State Government cannot be sustained in the eyes of law. More so when it is also not a case of one time promotion which also require a special notification and amendment in the Rules.

Having considered entire facts and circumstances, since after due consideration proper discretion has been used by the learned Tribunal as also learned Single Judge, we find no ground for any further interference. The appellant State may now make a complete fresh exercise as per directions of the Tribunal as early as possible preferably within four months. It is further made clear that persons already promoted shall not be demoted till the exercise is made and fresh orders of promotions on the basis of yearwise determination of vacancies are passed. In case any person is not found suitable for the particular year and have already been given benefit of promotion, in case of reversion or change of year of promotion, 4 the salary already paid, may not be recovered, however, pay fixation has to be made accordingly. If any person has retired during the intervening period, his retiral benefits already paid on the basis of last pay drawn may also not be recovered except for revision of pension if required.

With the above observations and direction, the appeals are disposed of accordingly."

In order to examine the challenge to the impugned judgment in its proper perspective, it will be useful for us to refer to the basic facts giving rise to the present appeal. The appellant belongs to a Scheduled Caste and was initially appointed as a Motor Vehicle Sub-Inspector vide order dated 23rd August, 1980. He was confirmed in this post on 3rd May, 1983 whereafter, he was promoted upon his satisfactory performance of his duties to the post of Motor Vehicle Sub Inspector through Departmental Promotion Committee (in short the `DPC') on the principle of seniority-cum-merit vide order dated 20th January, 1987. He was thereafter regularized in the said post on 15th October, 1988. On 13th April, 1992, a notification was issued by the respondents 5 amending the Rajasthan Transport Service Rules, 1979 (in short the `1979 Rules') (marked as annexure P-5 to the Petition). By this amendment, Schedule 1 and Schedule 2 of the 1979 Rules to the existing Rules were amended. The Notification read as under:

"In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Rajasthan hereby makes the following amendments with immediate effect in the Rajasthan Transport Service Rules, 1979m namely:

AMENDMENT In the said rules:- 1. Amendment of Schedule-1:

1. the existing entries at item 2. occurring in column 6 against to S.No. 4 shall be deleted.

1. The existing Schedule II shall be deleted."

As is evident from the above Schedule, earlier the candidates were required to pass the qualifying examination for the post of District Transport Officer. However, by this 6 amendment, the said requirement was deleted under Schedule 1 and syllabus for the same was deleted from Schedule 2. In other words, promotion would be possible without holding the said examination for the higher post.

On 27th May, 1994 a seniority list of Motor Vehicle Inspectors was issued. On the basis of this seniority list, a number of persons, including the appellant, were promoted to the post of District Transport Officer vide order dated 8th July, 1994. One Shri Pooran Singh, respondent No.2 belonging to the General Category, who was holding the post of Motor Vehicle Inspector in the Transport Department, preferred an appeal before the Tribunal against the order dated 8th July, 1994. According to him, he was senior to the persons who were promoted by that order and this was a supercession, contrary to the 1979 Rules. Therefore, it was to be declared as illegal and unjustifiable. He also prayed for consequential reliefs.

7 Another contention raised before the Tribunal was that the State of Rajasthan violated Rules 10 & 24 of the 1979 Rules and hence, the exercise of the State was arbitrary and discriminatory. The clubbing of the vacancies from the years 1983-84 to 1993-94 was for the total 21 vacancies, which was improper as the respondents were obliged to consider the vacancies in each given year in terms of Rule 10. According to the challenge raised before the Tribunal, out of the 17 promotees from the Motor Vehicle Inspector cadre, 10 from general category were actually senior to Pooran Singh but the candidates at serial nos.12 to 17 belonging to the Scheduled Castes, were junior to him. He was at serial No.23 of the seniority list and as such was entitled to promotion in preference to those candidates. The State filed a reply before the Tribunal and stated that though the vacancies had been determined year wise no one had passed the qualifying examination and nobody had been found eligible for promotion 8 upto 1st April, 1994 as per Schedule II of the 1979 Rules. Thereafter, for administrative reasons including the representation made by Rajasthan Transport Inspector's Union, the qualifying examination was done away with, as already referred, and appointment/promotion to the post of DTO was made simply by promotion. 21 vacancies became available and out of that 4 persons have already been promoted, leaving a balance of 17 vacancies. Out of these 17 vacancies, 5 vacancies were reserved for Scheduled Castes, 3 for Scheduled Tribes candidates and the remaining vacancies were clubbed and promotions were made on the basis of seniority cum merit. The detail of the yearwise vacancies are as follows:

Year Vacancies 1983-84 2 1984-85 2 1985-86 1 1986-87 2 1987-88 2 9 1988-89 1 1989-90 1 1990-91 1 1991-92 2 1992-93 1 1993-94 2 It was further the case of the State that the vacancies have to be carried forward from year to year and in want of eligible candidates, vacancies could not be filled in accordance with rules. It was further urged by the State that the vacancies in the post of DTOs could not be filled for want of eligible candidates and, therefore, the vacancies were carried forward for consideration to the subsequent years. It is also averred in the petition that the High Court had passed a judgment on 7th April, 1997 in SBCW No. 3423 of 1995 titled Hiral Lal Joshi v. State directing that Review DPC be held with regard to vacancies for the year 1993-94 to 1996-97 and then the appointments were made, however, averments with regard to supercession of Pooran Singh was 10 denied. Vide order dated 8th February, 1999, the appeal filed by Pooran Singh was set aside by the Tribunal, and the operative part of the judgment reads as under:

"In the light of the above discussion, Annexure-6 dated 8.7.1994 is quashed and the State Government is directed to hold review DPC within two months to determine yearwise vacancies afresh. The State Government has already indicated yearwise vacancies in page 2 of its reply. The review DPC should be convened year wise and the promotion be done on the basis of year wise vacancies only. Since the departmental examinations were not organized by State Government from time (sic) and then that provision was deleted therefore, no candidate for any particular year should be treated to be unqualified on account of not clearing the departmental examination. Ideally the notification dated 13.4.1992 should be amended retrospectively but even if it is not done so, the State Government cannot circumscribe or dilute the provision regarding "year-wise" filling up of vacancies.

In the net result this appeal succeeds and is 11 accepted. The State Government would pay the cost to the Appellant which is determined at Rs.1000/-."

This order of the Tribunal dated 8th February, 1999 was challenged by the State Government before the High Court. The High Court vide its order dated 18th July, 2005 passed in Civil Writ Petition No. 2111 of 1999, dismissed the Writ Petition and maintained the direction to the State Government to hold review DPC. Another writ petition was also filed by private persons being Writ Petition No. 1025 of 1999 which was also dismissed vide order dated 23rd July, 2008. It may be noticed here that reversion of Pooran Singh-petitioner was stayed by an interim order. Later he sought voluntary retirement and retired. However, appellant Jagdish Prasad was promoted as Assistant Transport Commissioner vide order dated 24th January, 2003.

Against the order passed by the learned Single Judge, as afore-noticed, the appellant preferred an appeal before the 12 Division Bench of that High Court. All these appeals came to be dismissed by the Division Bench vide its order dated 17th April, 2009, the relevant portion of which has already been reproduced above.

The judgment of the Division Bench is impugned in the present appeal. Before we proceed to discuss the contentions in relation to the factual matrix of the case, it will be useful to examine the scheme of the 1979 Rules. The 1979 Rules had been notified vide notification of December, 1979. In terms of Rule 2(e) of the 1979 Rules, `Direct Recruitment' means recruitment made in accordance with Part IV of the 1979 Rules. Rule 2(k) of the 1979 Rules contemplates that `Service' or `Experience', wherever prescribed in these Rules, as a condition for promotion from one service to another, or within the service from one category to another, or to senior posts in the case of a person holding a lower post eligible for promotion to higher 13 post, shall include the period for which the person has continuously worked on such lower post after regular selection in accordance with Rules promulgated under proviso to Article 309 of the Constitution of India.

Rule 7 of the 1979 Rules deals with Reservation of vacancies for the Scheduled Castes and the Scheduled Tribes. Such reservation has to be made in accordance with the orders of the Government for such reservation in force at the time of recruitment i.e. by direct recruitment and by promotion. Furthermore Rule 7(4) of the 1979 Rules requires that appointments shall be made strictly in accordance with the rosters prescribed separately for direct recruitment and promotion. In the event of non-availability of the eligible and suitable candidates amongst the Scheduled Castes and the Scheduled Tribes, as the case may be, in a particular year, the vacancies so reserved for them shall be filled in accordance 14 with the normal procedure and an equivalent number of additional vacancies shall be reserved in the subsequent year. Such of the vacancies which remain so unfilled shall be carried forward to the subsequent three recruitment years in total and thereafter such reservation would lapse, provided that there shall be no carry forward of the vacancies in the post or class/category/group of posts in any cadre of service to which promotions are made on the basis of both by merit and by seniority-cum-merit under these Rules.

The proviso to Rule 7(4) of the 1979 Rules obviously restricts the application of carry forward. How the vacancies are to be determined has been specified in Rule 10 of the 1979 Rules and the same reads as under:

"10. "Determination of vacancies:- (1)(a) Subject to the provisions of these Rules, the Appointing Authority shall determine on 1st April every year, the actual number of 15 vacancies occurring during the financial year.

(b) Where a post is to be filled in by a single method as prescribed in the rule or Schedule, the vacancies so determined shall be filled in by that method.

(c ) Where a post is to be filled in by more than one method as prescribed in the rules or Schedule, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the overall number of posts already filled in. If any fraction of vacancies is left over, after apportionment of the vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed as a continuous cyclic order giving precedence to the promotion quota.

(2) The Appointing Authority shall also determine the vacancies of earlier years, yearwise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in."

Procedure for Direct recruitment is dealt with in Part -IV of the 1979 Rules, which requires inviting of applications, 16 scrutiny of applications, recommendations of the Commission, disqualifications for appointment and selection by the Appointing Authority.

Part-V of the 1979 Rules deals with `Procedure for Recruitment by Promotion' with which we are primarily concerned in the present case.

Rule 24 of the 1979 Rules provides Criteria, Eligibility and Procedure for Promotion to Junior, Senior and other posts encadred in the Service. It is not necessary for us to re-produce the entire Rule 24 of the 1979 Rules. It would suffice to refer to the relevant part of the said Rule 24 of the 1979 Rules which is as follows:

"24. Criteria, Eligibility and Procedure for Promotion to Junior, Senior and other posts encadred in the service:- (1) As soon as the Appointing Authority determines the number of 17 vacancies under rule 10 and decides that a certain number of posts are required to be filled in by promotion, the Appointing Authority shall, subject to provisions of sub-rule (9), prepare a correct and complete list of the senior-most persons who are eligible and qualified under these Rules for promotion on the basis of seniority cum-merit or on the basis of merit to the class of posts concerned.

(2) The persons enumerated in Column 5 of Schedule-1 shall be eligible for promotion to posts specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6.

XXX XXX XXX (6)Selection for promotion to all other higher posts or higher categories of posts in the Service shall be made on the basis of merit and on the basis on seniority-cum-merit in the proportion of 50:50.

Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the 18 same manner as specified in these Rules.

XXX XXX XXX (11) If in any subsequent year, after promulgation of these Rules, vacancies relating to any earlier year are determined under sub-rule (2) of rule relating to determination of vacancies which were required to be filled by promotion, the Departmental Promotion Committee shall consider the cases of all such persons who would have been eligible in the year to which the vacancies relate irrespective of the year in which the meeting of the Departmental Promotion Committee is held and such promotions shall be governed by the criteria and procedure for promotion as was applicable in the particular year to which the vacancies relate and the service/experience of an incumbent who has been so promoted, for promotion to higher post for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. The pay of a person who has been so promoted shall be re-fixed at the pay which he would have derived at the time of his promotion but no arrears of pay shall be allowed to him.

(11A) The Government or the Appointing Authority may order for the review of the proceedings of the D.P.C. held earlier on account of some mistake or error apparent on the face of record, or on account 19 of a factual error substantially affecting the decision of the D.P.C. or for any other sufficient reasons e.g. change in seniority, wrong determination of vacancies, judgment/direction of any Court or Tribunal, or where adverse entries in the Confidential Reports of an individual are expunged or toned down or a punishment inflicted on him is set aside or reduced. The concurrence of the Department of Personnel and the Commission (where Commission is associated) shall always be obtained before holding the meeting of the review D.P.C."

Schedule I of the 1979 Rules provided for Post, Sources of recruitment, Qualification for Direct recruitment and Post from which promotion is to be made. Clause 4 of Schedule I of the 1979 Rules deals with the Post of DTO which reads as under, after amendment:

S N S Minimu P Q Remarks a o o ual . m m u s ifi N e r qualif t cat O c f ion o icatio f e r s s n for o and 20 t direct m exp h o w eri recrui e f h enc p tment i e o r c for s e h pro t c p mot r r ion u o i m t o m t e i n o t n w i t h p e r c e n t a g e i s t o b e m a d e 4 D 5 Degree M (i)Service i 0 in o rendered . s % Scienc t against the t e o post of Sales r b Commer r Tax Inspector 21 i y ce, v (i) or Inspector c Arts e 5 Excise and t d or h yea Taxation i Engine i rs' prior to T r ering c exp posting in r e from a l eri the Transport a c recogn e enc Department or n t ized I e Motor Vehicle s Univer n in Inspector p r sity s the shall count o e establ p pos in computing r c ished e t the period of t r by law c men 5 years' u in t tio service as O i India o ned Motor Vehicle f t f m i e c n e t r a n d 5 0 % b y p r o m o or r in Inspector.

t declar Col (ii)Till i ed umn directly o equiva 5. recruited n lent + candidates theret (ii are not o by ) available the Del posts may be Govern ete filled up ment. d from amongst the Rajasthan Administrativ e officers or Officers of any other 22 State Service or Rajasthan Tehsildar Service.

As it is evident prior to the amendment, the expression used in the Schedule was "in addition to the above must have passed qualifying examination as prescribed in Schedule -II" This was notified to be deleted from the Rules vide Notification dated 13 April, 1992. Consequentially, Schedule II of the 1979 Rules was also amended and the syllabus provided for this qualifying examination was deleted in its entirety. If we analyse the above Rules in their correct perspective, it becomes evident that the Rules clearly postulate merit to be the criterion for promotion to higher posts. The vacancies have to be determined as per Rule 10 of the 1979 Rules, on the 1st April of every year. If any fraction of vacancies is left over, after the apportionment of vacancies in the manner prescribed, the same shall be appointed through the quota of various methods 23 prescribed in continuous cyclic order, giving precedence to the promotion quota. Appointing authority has to determine yearwise vacancies of earlier years, which were required to be filled in by promotion if such vacancies were not determined and filled earlier in the year they were required to be filled in, in the subsequent years. In other words, the emphasis of the language of these rules is on yearly vacancies and they are required to be filled in with reference to each particular year. The vacancies are required to be determined and filled in as on 1st April of every year, for the vacancies occurring during the financial year, in terms of Rule 10(1)(a). Under Rule 7(1), the requisite vacancies are to be reserved for Scheduled Castes and Scheduled Tribes in accordance with the order of the Government in force at the time of recruitment that is by direct recruitment or by promotion. These vacancies are to be filled by seniority-cum-merit and merit. If the vacancies, for the reasons stated, remained 24 unfilled they can be carried forward only for a limited period of three recruitment years in total, and thereafter such reservation would lapse, in terms of Rule 7(4) of the 1979 Rules.

Another very important aspect of the Rules is that merit and seniority-cum-merit are the only relevant criteria for promotion to various posts. The language of Rule 24(1) of the 1979 Rules does not allow for any ambiguity and clearly says that a list of senior most persons, who are eligible and qualified under the 1979 Rules, will be prepared and from that list, promotion on the basis of seniority-cum-merit or on the basis of merit to the concerned class of posts will be made. Rule 24(6) of the 1979 Rules further postulates that all other higher posts or higher categories of posts in the Service shall be made on the basis of merit and on the basis on seniority-cum- merit in the proportion of 50:50. If upon merit alone 25 candidates are not available then selection by promotion on the basis of seniority cum merit may be made in the same manner as is specified in the 1979 Rules. On reading of Rule 24 (6), 24(11) and 24 (11A) of the 1979 Rules conjointly, it is clear that promotions have to be made by the DPC by the criteria and procedure for promotion as applicable in that particular year, to which the vacancies relate. The service experience of an incumbent who has been so promoted, for promotion to higher posts for any period during which he has not actually performed the duties of the post to which he would have been promoted, shall be counted. It also requires that pay of a person who has been so promoted shall be re-fixed at the pay scale which he would have derived at the time of his promotion, but no arrears of pay shall be allowed to him. The Government or the appointing authority has the power to order for the review of the proceedings of DPC held earlier on account of some mistake apparent on the face of the record or 26 on account of substantial error affecting the decision of the DPC or even for any other sufficient reason like change in seniority, wrong determination of vacancies etc. The first and the foremost question that arises for consideration by this Court is whether merely by the amendment to Schedule I and the deletion of Schedule II of the 1979 Rules the effect of the statutory provisions like Rules 6,10, 24 of the 1979 Rules read in their plain language would stand diluted. Can it be argued that amendment to these schedules renders the statutory provisions ineffective and inoperative? It is a settled principle of law that the Schedule of the 1979 Rules has to be in conformity with, and is required to advance the object of the primary statutory provision. Thus, a schedule cannot in any way wipe out the statutory provisions of the Act in effect and spirit. It is nobody's case, and in fact, nothing has been brought to our notice, that Rules 6, 10, 11 and 24 of the 1979 Rules have been subjected to any amendment by the 27 competent authority. Once these provisions stand in the statute book, then respondents cannot escape from complying with them in the appropriate manner and without defeating the object of these Rules. We have already discussed the scheme of the Act, which shows that the services of the Transport Department in all relevant posts is covered under the provisions of the 1979 Rules and their purpose is to make promotions on merit or merit-cum- seniority. Their prescribed proportion of 50:50 has to be maintained. When Schedule 1 of the 1979 Rules is read along with the above indicated provisions, it is obvious that under Clause 4 of Schedule 1 of the 1979 Rules, 50% posts of DTO are to be filled up by direct recruitment and 50% posts by promotion. Now, the question is how the 50% promotions are to be filled up by the respondents. Rule 24(6) of the 1979 Rules mandates that selection for promotion to all other higher posts or higher categories of posts in the Service shall be made on 28 the basis of merit and on the basis of seniority-cum-merit in the proportion of 50:50. In other words, 50% vacancies are to be filled up on the basis of merit while the remaining 50% vacancies in the promotion quota are to be filled up by seniority-cum-merit. The persons have to be within the appropriate position in the seniority list before they can be considered for promotion under the latter category. Eligibility requirements have been specified under the 1979 Rules, which candidates must satisfy to be considered under the seniority- cum-merit category. The other persons who are to be promoted to the post of DTO are on the basis of merit alone. Even if Schedule II of the 1979 Rules does not exist, it is obligatory on the part of the respondent to evolve a methodology to make promotions purely on merit. Once the framers of the Rules have intended to provide merit as the sole criteria of promotion, the appointing authority is not vested with the jurisdiction to 29 waive the same or completely wipe out the same, on a flimsy excuse such as the one proposed in the present case.

In light of this, we now come to the conduct of the Government which we cannot but help to comment upon. Right from 1983-84 till 1993-94 no examination has been conducted by the appropriate authority despite the fact that they also issued notifications for holding exams on a few of these occasions. If there was a representation from the Rajasthan Transport Inspector's Union, it cannot be considered as a sufficient cause or reason for not holding the examinations for more than ten years and causing serious prejudice to the candidates who might have been sufficiently meritorious to qualify in the exams and be considered for promotion to 50% of the posts under the promotion quota. It is a matter of regret that a Government can take such a stand before a Court of law and expects the Court to accept such a submission. It is ex facie untenable. Once the 30 rules stand clear, the Authority concerned is expected to act in accordance with law and not to defeat the law. One who defeats the law by his unjustifiable and unsustainable acts is liable for the consequences of such default. We fail to understand why the Government and its entire hierarchy had shut its eyes to this gross violation of statutory rules over such a long period. It is a matter of concern that any rule of good governance that an obligation is imposed upon the State to select the best candidates to higher posts and not to frustrate rules which prescribe merit as this is essential to the process of selection. It is painful to note that the Government has put forward such a flimsy excuse for its inaction and unfortunately the same has weighed with the High Court to some extent, though it has dismissed the appeal of the State. We have no hesitation in observing that the Government has no justification whatsoever in not holding the qualifying test for a long period of ten 31 years and this is a matter which the hierarchy of the State Government needs to examine and fix responsibility.

Even after 1993-94, the process of selection adopted by the State Government cannot be accepted. The preparation of seniority list, method of selection and clubbing of vacancies are apparently in violation of the statutory Rules as afore- noticed. The Tribunal, in its judgment, has noticed Rule 24(ii) of the 1979 Rules and observed that even if the DPC held together vacancies of several years, yet the vacancy of each year should be determined and also filled up separately. In this regard the reference was also made to the judgment of this Court in the case of Vinod Kumar Sangal v. Union of India [(1995) 4 SCC 246]. We do approve of the observations made by the Tribunal that on the one hand the department has treated the rules as sacrosanct and on the other hand, right from introduction of the 1979 Rules not even a single examination was held. The fallaciousness in the stand of the Government, to our mind, is clear from the fact 32 that the representations against the procedure started after 8 to 9 years, but right from the first year i.e. from 1983, there can be no justification for not holding the examination in accordance with the Rules. It appears that the attempt was intended to suppress the rule of selection by merit. The Tribunal failed to notice other provisions of the relevant rules. While referring to the judgment of this Court in the case of B.L. Gupta v. M.C.D. [(1998) 9 SCC 223], it finally quashed the order dated 8th July, 1994 and issued direction to hold review DPC within the specified time by filling yearwise vacancies. One direction of the Tribunal, as is appearing from its order, certainly cannot be sustained. The Tribunal could not have directed that `ideally the notification dated 13.4.1992 should be amended retrospectively'. It is not clear whether the Tribunal meant that this notification should be given effect to retrospectively, in relation to the vacancies from of 1983-84, 33 or that the said notification itself should be amended. This ambiguity was entirely uncalled for.

The Division Bench, while dealing with the judgment of the learned Single Judge and the Tribunal, referred to the Rules to some extent and to the fact that for one vacancy, 5 eligible persons are required to be considered and for 2 vacancies, 8 eligible persons should be considered; and that such proportion in accordance with the zone of consideration as specified under Rule 24(6) of the 1979 Rules should be maintained. The High Court also referred to the judgment of this Court in coming to the conclusion that clubbing of vacancies was not proper, and that such a course could be adopted only in the case of direct recruitment. The High Court directed the making a completely fresh exercise and directed that the persons already promoted were not be demoted but promotion be made yearwise. Though for somewhat different reasons, partially accepting the findings recorded by the 34 Tribunal, which we have discussed above, we would accept some of the findings of the Tribunal and the High Court; but the conclusions arrived at cannot be accepted in their entirety. We are not only concerned with promotion or otherwise of any relief to the appellants or any persons in service but we must also ensure that Rules are implemented and selection is made strictly in accordance with such Rules. We also cannot ignore the fact that a Government servant gets a right, (though not indefeasible right), to be considered for promotion to the appropriate post to which he is eligible and entitled, in accordance with law. In the case of Union of India and Another v. Hemraj Singh Chauhan and others [(2010) 4 SCC 290] this Court while dealing with somewhat similar situation held as under:

"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as 35 model employers, which is consistent with their role in a welfare State.

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."

It is equally true that the rule of fairness in Government action is an essential feature. However, such fairness has to be founded on reasons. Usually, the providing of Reasons demonstrates the concept of reasonableness but where the statutory rules provide the circumstances and criteria, ambit and methods by which the selection should be governed, they would become the yardstick of fairness. In the case of Manager Government Branch Press and Anr. v. D.B. Belliappa [(1979) 1 SCC 477], this Court held that the essence of the guarantee under Articles 14 and 16 of the Constitution is `fairness founded on reasons'.

36 Having discussed in detail the infirmities and illegalities from which the selection process suffers, we, though for different reasons, have come to the same conclusion as the High Court while also issuing directions. Therefore, while setting aside the selection/promotion order dated 8th July, 1994, we further issue the following directions for strict compliance by all the authorities concerned and without any further delay:

1. Fresh process of selection shall be held by the competent authority in accordance with Rules, as expeditiously as possible and in any case not later than three months from today;

2. The selection by promotion for the yearwise vacancies shall be filled in by compliance to Rule 24(6) of the 1979 Rules. The authorities 37 shall fill 50% of the promotion vacancies purely by merit, for which it will evolve a methodology, either by holding a qualifying examination as was being conducted prior to 1992, or by any other examination which would satisfy the basic criteria of selection by merit.

3. Remaining 50% of the promotion posts shall be filled by seniority-cum-merit for which the departmental DPC shall meet within the stipulated time as afore-directed.

4. The Secretary (Transport), Government of Rajasthan is hereby directed to conduct an enquiry personally and fix responsibility on all the officers/officials responsible for not conducting qualifying examination in accordance with Rules from 1983 to 1994 and subsequent thereto in 38 accordance with law. In other words, the officers must be held responsible for their lapses and be punished in accordance with law.

5. The vacancies would be clubbed only for the purposes of calculating an arithmetical figure but, will be filled in accordance with yearwise vacancies and considering the officers eligible for promotion to the post of DTO in accordance with seniority cum merit rule for 50% of the promotion post.

6. All remaining 50% posts shall be filled up purely on merit and by holding an examination.

7. The persons who have already been promoted would not be reverted and none of them would be entitled to claim any financial benefits, if they have already retired from the post of DTO.


8. The candidates now selected in furtherance to the directions contained in the judgment shall not be entitled to any arrears of pay because though their promotion may be relatable to a previous year, such promotion shall be notional without any consequential benefits.

The appeals are partially accepted and are disposed of, with no order as to costs, with the directions afore-indicated. All the authorities concerned shall comply with these directions without default and submit their compliance report to the Registry of the High Court within 16 weeks from today.


[Dr. B.S. Chauhan]

[Swatanter Kumar] 
New Delhi;

Saturday, August 27, 2011

J-K HC orders hotel sealing for felling trees

The J-K High Court has directed the Anantnag Deputy Commissioner to seal one of the Valley’s biggest privately owned hotel Grand Mumtaz in Pahalgam for violating court directions and felling of green kail and pine trees.

A Division Bench, which is hearing a PIL about violation of the Pahalgam Master Plan, also issued contempt notices against hotel owner Mushtaq Ahmad Gania alias Chai and its vice-president Abdul Rashid for damaging 140 standing green forest trees and carrying out construction at picturesque tourist resort in defiance of the HC directions.

The orders of the Bench, comprising acting Chief Justice F M Ibrahim Kalifullah and Justice Muzaffar Hussain Attar, followed perusal of a report by the Principal District Judge, Anantnag, and the court-appointed Expert Committee, wherein the violation of court orders has been reported by the Grand Mumtaz.

HC ex-judge gets relief; CBI court grants bail

A CBI special court on Saturday granted bail to Punjab and Haryana high court former judge Nirmal Yadav in cash-in-bag scam that rocked the nation in August 2008.
A bag containing Rs 15 lakh had been delivered at the official residence of Punjab and Haryana high court judge Justice Nirmaljit Kaur on August 13, 2008. Justice Kaur reported the matter to local police about an attempt to bribe her. The matter was investigated by CBI and an in-house panel of three judges appointed by the Supreme Court and both had held Justice Yadav responsible for irregular purchase of land at Solan for which the cash was sent to her, but wrongly delivered at Justice Kaur’s residence.
On March 4 this year, CBI had filed chargesheet against advocate Sanjeev Bansal, Delhi-based hotelier Ravinder Bhasin, Justice Yadav, Chandigarh-based businessman Rajiv Gupta and businessman Nirmal Singh. Besides the chargesheet.

Friday, August 26, 2011

Mining in 2 more K’taka districts hit SC roadblock

New Delhi: The Supreme Court on Friday ordered suspension of iron ore mining in Karnataka’s Chitradurga and Tumkur districts based on the Central Empowered Committee’s finding that rampant illegal mining has caused serious damage to environment there.
A three-judge bench headed by Chief Justice S H Kapadia clarified that the suspension was an interim measure taken to protect environment, which was intrinsically linked to the citizen’s right to life.
It said right to mining was also a fundamental right under Article 19, but right to life under Article 21 was a higher right.
The court said the need of the steel industries in the interim period would be met from the 25 million tonnes of iron ore stocks lying with the mining lease holders. It asked the attorney general and amicus curiae Shyam Divan to finalize the regulated release of the iron ore after consulting the industry.
In future, mining would be permitted only after the court examines the rehabilitation plan with a promise from all lease holders to carry out digging scientifically.

Explain delay in filing appeals, HC tells govt

Ahmedabad: The Gujarat high court on Friday issued notice to the state government seeking explanation on why its appeal in the Godhra carnage case should not be rejected on the ground of delay in filing. A division bench has sought reply from the state as well as the SC-appointed special investigation team (SIT) in this regard by September 14.
The government has sought enhancement in sentence awarded to 20 persons, and challenged acquittal of 63 persons in an order passed by special court earlier this year. The authorities are expected to file such appeals within a fixed period, but the SIT took a little longer to challenge the lower court’s decision.
Meanwhile, the bench has admitted appeals filed by some of the convicts against their conviction of life imprisonment, as well as, death sentence. In case of some of the appeals filed by the convicts, the court granted them time till September 12 to remove the office objections in their appeals. Some of the appeals filed by the kin of victims demanding more severe punishment for convicts and questioning the acquittal of the 63 persons have also been admitted, said special public prosecutor J M Panchal.

HC refuses to grant stay

The unprecedented move by the Gujarat governor may lead to a prolonged legal battle. The state government immediately challenged Justice R A Mehta’s appointment in the Gujarat High Court which refused to grant a stay. Justice Abhilasha Kumari fixed August 30 for the next hearing. No sooner the news about the appointment reached the Sachivalaya, the government went into huddle and began taking legal advice, especially from Arun Jaitley and Ram Jethmalani.
Sources said the government was considering various options - including taking the matter to the Supreme Court. As the appointment has been made by the governor, the state government cannot take legal action against her as she happens to be the head of the state. Also, since Justice Mehta's name was suggested by the chief justice of Gujarat HC, S J Mukhopadhyay, it is only appropriate that a higher court hears the case.
Leader of opposition Shaktisinh Gohil hailed the governor’s decision, saying that the Lokayukta can inquire only into cases less than five years old. “As we have had no Lokayukta for seven-and-a-half years, we have given a clean chit to two-and-a-half years of corruption.” Government spokesperson Jay Narayan Vyas described R A Mehta’s appointment as “not in the spirit of the Constitution of India and bad in law”, adding, that the government was “weighing options” to counter the move.


Gandhinagar: Gujarat governor Dr Kamla took the Narendra Modi government by surprise on Friday by appointing a close Anna Hazare aide and former justice of the Gujarat High Court, R A Mehta, as the new Lokayukta. Justice Mehta had hosted Hazare at his residence during his last visit to Ahmedabad in the month of May and he has been closely associated with civil society in Gujarat.
The governor’s order, based on the recommendation of the chief justice of Gujarat HC, came just after midnight and within a couple of hours of her talks with three senior state ministers who came to Raj Bhavan with a selection criteria that she outrightly ridiculed and rejected. While the Modi government knew she would act soon in the matter, few believed she would bypass the government and appoint a Lokayukta herself.
The governor took the action under Section 3 of the Gujarat Lokayukta Act, 1986, which gives her the right to appoint Lokayukta without consulting the government. She based her decision on legal opinion given by the Attorney General of India, while avoiding talking to the Advocate General of Gujarat. She was advised that not appointing a Lokayukta for more than seven years was irrational and that it was a matter of grave concern that there was no authority to probe affairs of the government.

Thursday, August 25, 2011

Labour court judge sacked for malpractices

Ahmedabad: A labour court judge, Amrish Trivedi, has lost his job for pronouncing judgment in an open court on the day he was officially on leave. Another reason for his sacking by the Gujarat high court was that he had least six judgments typed in offices of advocates involved in litigation.
Trivedi was forced to retire in November 2009 by the administrative wing of the high court. The state also issued the notification for
his removal for his conduct, deemed unbecoming of a judicial officer. Last week, a division bench of the high court upheld Trivedi’s removal.
Trivedi was appointed as labour court judge in 1994, and served in Jamnagar from 1997 to 2001. During that stint, the high court began receiving strange complaints. On getting one such complaint, a departmental inquiry was instituted in December 2001 and he was charged with having the judgment typed outside the court, as the stenographer was on leave. Moreover, he also pronounced the judgment in the open court on June 4, 2001 — official records showed that he was on leave for three days between June 3 and 5.
As for Trivedi’s use of computers in private advocates’ offices, the malpractice was inferred as no judicial officer was allotted computers during the period in question. Trivedi said that he was practising on a computer and typing orders on a machine gifted to him by his younger brother. But he was accused of using unauthorized facilities to favour some advocates.
Finally, Trivedi was found guilty by the inquiry officer of indulging in corrupt practices and of dereliction in discharging his judicial functions. The report against Trivedi was submitted to the high court in 2004, and the authorities came to a tentative conclusion about punishment. But his explanation was sought first.
Trivedi explained his position, but the high court did not find his version believable and accepted the inquiry report. In August 2009, he was made to resign by the registrar general.