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civil application

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The Persons with Disabilities (Equal Opportunities, etc.) Act, 1995 = a teacher with mental illness failed to attend her duties and as such she was removed from service due to lack of reply from her. after 3 she filed a complaint before commissioner for reinstatement as she was dismissed when she was under mental distress = For about three years, no action was taken by appellant. In the year 2007 she filed an application before the Commissioner under Section 62 of the Act. The said application was registered as Case No. 253/2007. In the said application, the appellant took plea that the order of dismissal passed by the authorities while she was suffering from mental illness was in violation of Section 47(1) of the Act. The appellant requested for her reinstatement with full back­wages.= whether the Commissioner under Section 62 of the Act can look into the legality of the order of dismissal from service of a disabled person, if it comes to his notice that the said person with disabilities has been deprived of his rights. whether the appellant was entitled for benefits under Section 47(1) of the Act. 13. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act was enacted in 1995 pursuant to meet the following object and reasons: (i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities; (ii) to create barrier free environment for persons with disabilities; (iii)to remove any discrimination against persons with disabilities in the sharing of development benefits, vis­à­vis non­ disabled persons; (iv)to counteract any situation of the abuse and the exploitation of persons with disabilities; (v)to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and (vi)to make special provision of the integration of persons with disabilities into the social mainstream. “47 ­ Non ­discrimination in Government employments ­ (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”= Learned Single Judge by interim order dated 11th January, 2008 directed the respondent to reinstate the appellant and to pay her regular salary w.e.f 1.2.2008 on the following terms: “8. RULE (a)By interim order, there shall be stay against the impugned order of the Commissioner to the extent that the petitioner shall not be required to pay any backwages to the respondent, but the petitioner shall reinstate the respondent in service by paying regular salary to her from 1.2.2008. (b)It is further observed that directed that the petitioner shall get respondent examined through a Government Doctor of their choice and if it is so opined by the doctor, such duty may be assigned to the respondent at a place or a nearby place, where she can comfortably and conveniently, in a safe atmosphere, discharge duty.”- Inspite of the same, the respondent authority have neither reinstated the appellant nor paid salary w.e.f. 1.2.2008. So, they cannot take advantage of their own wrong and, thereby, cannot deny the benefit of wages to which the appellant was entitled pursuant to the order passed by the High Court on 11th January, 2008. -There is nothing on the record to suggest that the respondent authority got the appellant examined by a Government Doctor to determine the duty to be assigned to her. In view of her reinstatement, now the respondent authority may get opinion of the doctor for assigning her duty. In case the appellant is not in a position to perform the normal duty because of her mental condition, the competent authority will apply Proviso to Section 47(1) of the said Act. Having regard to the fact that we have upheld the order passed by the Commissioner, we direct the authorities to reinstate the appellant in service immediately and to pay her regular salary every month. The appellant shall be entitled to arrears of salary w.e.f. 1.2.2008 which the respondent shall pay within three months, else the appellant shall become entitled to interest at the rate of 6% per annum with effect from 1.2.2008 till the actual payment. The appeal is allowed in the manner indicated above and the orders passed by the learned Single Judge and the Division Bench of the High Court are set aside. There shall be no order as to costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40492 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 9324 OF 2012 (Arising out of SLP(C)No.7647 of 2011) GEETABEN  RATILAL PATEL          … APPELLANT VERSUS DISTRICT PRIMARY EDUCATION OFFICER          … RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal is directed against the order dated 4th November, 2009 passed by the Division Bench of Gujarat High Court in L.P.A.No. 1988 of 2009 whereby the Division Bench dismissed the said Letters Patent Appeal   preferred   by  the  appellant  and  affirmed   the order   dated   10th  December,   2008   passed   by   learned Single   Judge   in   Writ   Petition­Special   … Continue reading

TEMPORARY APPOINTMENTS IN SCHOOLS =“Would it be open to the School Tribunal to hold that an employee would be deemed to be on probation within the meaning of Section 5(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 on the ground that the appointment was made in a clear and permanent vacancy, notwithstanding the fact that the letter of appointment specifically stipulated that the appointment has been made in a temporary capacity?” = We hold that it is not open to the School Tribunal to assume as of fact that the appointment made against a clear and permanent vacancy is deemed to be on probation, within the meaning of Section 5(2) of the Act. The School Tribunal cannot disregard the terms and conditions of the letter of appointment, if it expressly provides that the appointment is on temporary basis, for a limited term. reported/published in http://bombayhighcourt.nic.in/judgements/2013/&fname=OSWP274005.

Bomba     y High Court wp.315.2006+Full Bench.judgemnt.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. / CIVIL APPELLATE SIDE WRIT PETITION (OS) NO. 315 OF 2006 WITH NOTICE OF MOTION NO. 175 OF 2012 RAMKRISHNA CHAUHAN, Residing at Bihari Chawl, Behind Mukesh Medical Stores, Ganesh Nagar, Kandivli (West) Mumbai – 400067 :­ PETITIONER VERSUS 1.  SETH D. M. HIGH SCHOOL, through the Principal, 10th Road, Daulatnagar, Borivli (E), Mumbai 400066 2.  DEPUTY DIRECTOR OF EDUCATION, Jawahar Bhavan, Near Charni Road, Mumbai – 400004 3.  THE BHARAT JATIYA SANGH, through its Chairman, 10th Road, Daulatnagar, Borivli (E), Mumbai 400066 4.  STATE OF MAHARASHTRA, through the Department of Education and Employment, Mantralaya Annex, Mumbai 400032 :­ RESPONDENTS Page 1 of 43 J.V.Salunke,PA ::: Downloaded on – 03/06/2013 06:18:04 :::Bombay High Court wp.315.2006+Full Bench.judgemnt.doc WITH CIVIL WRIT PETITION NO. 7482 OF 2006 WITH … Continue reading

Section 41(h) of Specific Relief Act= Section 41(h) provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. The relief of specific performance is equally efficacious, rather more efficacious, remedy than the suit for injunction simplicitor.= when remedy of a suit for specific performance is available to the plaintiff, he :8: 616.10.ao.j cannot file a suit for injunction simplicitor nor he can claim temporary injunction in pending suit for injunction simplicitor. 10 In the present case the plaintiff could have filed suit for specific performance of the contract as soon as he found that defendant no.1 had repudiated contract and was trying to dispose of the property to somebody else. The plaintiff filed the suit on the basis of the agreement allegedly executed by defendant no.1 in his favour and that agreement shows that consent terms in the earlier suit were accepted and defendant no.1 was entitled to retain and dispose of the premises. The defendant no.1 denies execution of this agreement. When pleadings of the plaintiffs show that there was no impediment in filing suit for specific performance, now he cannot say that because of the earlier suit he could not file suit for specific performance. These aspects were not considered by the trial court while granting temporary injunction in favour of the plaintiff. 11 In view of the above circumstances, as the suit for injunction simplicitor itself is not tenable in view of Section 41(h) of the Specific Relief Act, the plaintiff is also not entitled to temporary injunction pending the suit.

:1: 616.10.ao.j     ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER  NO.616 OF 2010 IN NOTICE OF MOTION NO. Ex.2 OF 2008 FROM B. C. C. C. Suit No. 1602 OF 2008 WITH CIVIL APPLICATION NO.193 OF 2012 Mr. Abdul Wahid Residing at Room No.22,1st floor, Ramzan Building, Hans Road, Neara National Diary, Byculla(W), Mumbai .. Appellant Vs. 1.Shri. Manish Hansraj Chandaria Residing at Flat No.8,3rd Floor, Link Corner, Residential and Non­residential Premises Co­operative Society(Prop.)Ltd, Plot No.  231, T. P. S. III, Linking Road, Bandra(W), Mumbai 2. Smt. Nasreen wd/o Yusuf Ibrahim Shaikh Residing at Flat No.16 and 17, Building No. 185, Nishant Pada,Dongri, Mumbai .. Respondents :2: 616.10.ao.j Mr. Jagdish N. Jayale,for the Appellant/Applicant.. Dr. Amod S. Tilak, for the Respondent No.1. CORAM :­  J. H. BHATIA,J. DATE     :­  FEBRUARY 17, 2012 JUDGMENT 1 Rule.  Rule made returnable forthwith.  With the consent of  the learned  counsel for both the parties, the appeal is heard forthwith. 2 The appeal is preferred by the original defendants challenging the order dated 21.04.2010 passed by the learned Judge, City Civil Court in Notice   of   Motion   whereby   … Continue reading

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