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jammu and kashmir

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service matter = There were vacancies in the cadre of Computer Operator/Lab Assistant/System Administrator and therefore, advertisement Notice No.1 of 2005 was published on 15.1.2005 by the appellant. Applications were invited from suitable candidates and qualifications required for the posts had been incorporated in the aforestated advertisement notice.=As per the select list prepared by the appellant alongwith other candidates, respondent Nos. 7 and 8 were selected to be appointed. 5. A candidate named Renu Bala, respondent No. 1 herein, was not selected and therefore, she had filed Writ Petition No.93 of 2005 in the High Court of Jammu and Kashmir at Jammu challenging the selection procedure as well as the appointments to be made. – the learned single Judge of the High Court came to the conclusion that the allegations made in the petition filed by Renu Bala, who is respondent No.1 in this appeal were genuine. Certain provisions had been relaxed in favour of Shri Ashok Kumar Koul and the said relaxation made in favour of Shri Ashok Kumar Koul had violated rights of all other candidates, who had applied for the posts. The learned single Judge, therefore, allowed the petition with costs and directed the appellant to appoint present respondent No.1 to the said post. 7. Being aggrieved by the Judgment delivered in Writ Petition No.937 of 2005, the present appellant had filed an appeal before the Division Bench of the High Court being LPASW No.146/08. The said appeal was heard by the High Court at length and ultimately the Division Bench had come to the conclusion that the view expressed by the learned single Judge was correct. The Division Bench came to the conclusion that the Recruitment Rules framed for the posts in question and the selection procedure carried out by the appellant was not proper because more weight was given to the oral interview and even the scheme of allotting marks under different heads was not proper. The Division Bench, therefore, gave a direction whereby the appellant has been directed to read its Recruitment Rules in an altogether different manner and declare the result afresh. In pursuance of the said direction given by the Division Bench in the impugned order, the court has virtually amended the Recruitment Rules and has given direction in such a way that the entire selection procedure suggested by the court would virtually change the result. The Division Bench, however, set aside the direction with regard to the costs, which had been quantified at Rs.10,000/- by the learned single Judge.= In our opinion, the learned single Judge was right when he came to the conclusion that undue favour was done to respondent No.8 (Shri Ashok Kumar Koul) and therefore, he had quashed and set aside his selection by allowing the petition.= Upon setting aside the impugned judgment of the Division Bench, the Judgment delivered by the learned single Judge would operate and therefore, name of Shri Ashok Kumar Koul shall stand removed from the select list. Subject to other formalities being done by the appellant, the persons next to Shri Ashok Kumar Koul shall be selected for the posts in question in accordance with the existing Recruitment Rules. Mr. Sinha, learned senior counsel, appearing for the original petitioner has submitted that Ms. Renu Bala will get selected as per her position in the select list. Be that as it may, if Ms. Renu gets her name included in the select list, she or any other person who gets into the select list shall be appointed in accordance with law after doing necessary formalities by the appellant. 16. As a result, the appeal is allowed with no order as to costs.

 published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40631      NON-REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6141 OF 2013   J & K Institute of Management Public Administration and Rural Development ….Appellant   Versus Renu Bala & others. …..Respondents   J U D G M E N T   1 … Continue reading

whether appeal is maintainable pending main contempt petition=reserving the legal question about the maintainability of appeal to be considered in an appropriate case, we feel that the ends of justice would be met by asking the High Court to dispose of the main contempt petition. = Contempt Petition bearing No. 112 of 2009 in SWP No. 1528 of 2001 for non-compliance of order dated 14.11.2007. By order dated 05.02.2010, the High Court granted last and final opportunity to the State to reply compliance of the order dated 14.11.2007. On 29.04.2010, the State filed a Compliance Report rejecting the consideration of the respondents herein. By order dated 20.05.2010, the High Court, after observing that the Compliance Report filed by the State is not in consonance with the directions issued earlier, directed to file a better affidavit/Compliance Report by showing the names of the respondents herein in the Seniority List.

NON-REPORTABLE   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) Nos. 6614-6615 of 2011   State of Jammu and Kashmir …. Petitioner (s)   Versus   Vinod Kumar Verma and Another …. Respondent(s)     J U D G M E N T P. Sathasivam, J. 1) These SLPs are … Continue reading

service matter = the circular providing increments who passed engineering degree while in service =unconstitutional=At this juncture, it would be profitable to refer to the decision of this Court in H.P. Gupta and Anr. (supra), which is on all fours to the fact situation in the present appeal. In the said case, grant of two advance increments to Telecom Officers who acquired Engineering degree while in service and not to those who possessed such degree at the time of joining the service was held to be constitutionally valid. Dealing with a similar controversy, the Court observed as follows: “The object of giving two advance increments to those officials who did not possess degree in Engineering before joining the service, is only to encourage them to get such a degree so that they could improve themselves while in service. When that object is satisfied, the contentions that there should be equality in the matter of payment of salary or other emoluments or that there should be parity in the matter of giving increments, cannot be accepted. It is true that in such a situation, certain anomalies may arise in specific cases when the official who has acquired degree in Engineering subsequent to joining of service may get higher salary though junior to those who possessed the qualification of degree in Engineering even at the time of joining the service. There cannot be perfect equality in any matter on an absolute scientific basis and there may be certain inequities here and there. If the classification is correct and serves a particular purpose, the same is not to be judicially interfered with.” We deferentially concur with the observations in the afore-extracted passage.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7268 OF 2002 FOOD CORPORATION OF INDIA & ORS. — APPELLANTS VERSUS   BHARTIYA KHADYA NIGAM KARMCHARI — RESPONDENTS SANGH & ANR. WITH CIVIL APPEAL NO. 6878 OF 2003     JUDGMENT     D.K. JAIN, J.:   1. Challenge in these … Continue reading

Bank/Banking – Loan waiver scheme – Indebtedness and inability of Respondent-borrowers in the State of Jammu and Kashmir to repay loan amount due to continuous militant activities in the State – Amounts borrowed less than Rs. 10,000/- – Debt Relief Scheme floated by Government for borrowers in the State – Scheme provided for waiver of bank loans upto Rs.50,000/- – Liberal interpretation of the scheme by Courts below and consequent dismissal of suits filed by Appellant-banks against Respondent-borrowers – Justification of – Held: Justified, considering the peculiar facts and circumstances of the case and in light of the various clauses in the Scheme itself and also in view of the fact that sub-clause (a) of Section 3 of the scheme provided for reimbursement of waived loan to the concerned banks. Respondents belong to the State of Jammu & Kashmir. They obtained loans upto Rs.10,000/- from Appellant-Banks for rearing of sheep and buffaloes and for establishing dairy units. The loans remained unpaid on which, the Appellant-banks filed suits against the Respondents. During pendency of the said suits, the Government framed a Debt Relief Scheme for borrowers in the State of Jammu & Kashmir to give them relief considering the continued militancy and other difficulties in the State during the relevant time. The scheme provided for waiver of bank loans taken by borrowers in the State upto Rs.50,000/- for purpose of their business activities. Taking suo motu notice of the said Scheme, the Courts below held that the loans obtained by Respondents could be presumed to be for trade purpose and after applying the said scheme, dismissed the suits filed by Respondents. The questions which arose for consideration in the present appeals were as to i) whether the loan obtained by Respondents for purchasing sheep and buffalos and for establishing dairy units was covered by the said Scheme and ii) whether, in absence of a specific plea by the Respondents, the High Court was justified in granting relief in terms of the said Scheme. =Dismissing the appeal, the Court HELD:1.1. The Debt Relief Scheme in question applies to borrowers in the State of Jammu & Kashmir who borrowed loan amount for the purpose of their business activities. Business activities have not been specifically defined in the scheme. Sub-clause (i) of clause 2(d) of the Scheme refers certain examples viz., tourism, transport, small scale industry, trade sector, hotel, house-boat business, retail trade, etc.. Though purchase of buffalos and sheep relates to agriculture and allied activities, it cannot be denied that from the buffalos, the borrower can establish a dairy unit and earn from the said business. In view of clause 2(d)(i), the word “etc.” in the definition of “eligible loans” connotes that besides the activities cited as example for business activity there are other business activities which could be included under the Scheme. The said liberal interpretation cannot be ruled out particularly, when the Debt Relief Scheme was introduced mainly as a relief to the borrowers in the militant dominated State during the relevant time. Following the very reason for introduction of the said Scheme i.e. to offer financial help to the poor and indebted borrowers of militancy hit Jammu & Kashmir, the Courts below rightly concluded that the agricultural and allied business activities viz., the types of trade/business which are substantially or partially depending on agriculture and/or agricultural produce as a business activity under the said Scheme. Further, the Reserve Bank of India Guidelines cannot be strictly followed as it has not been mentioned to be followed in the Scheme and, therefore, the term `business activity’ cannot be interpreted under the strict rule of interpretation. [Paras 9, 10, 13] [1045,C-D; 1045,E-G; 1047,D-E] 1.2. Besides, sub-clause (a) of Section 3 of the Scheme makes it clear that the amount waived off will be reimbursed to the concerned Bank/Financial Institution by the Department of Jammu & Kashmir Affairs, Government of India on recommendation of the Committee to be set up at the State Level. Even after the orders passed by the sub-Court and thereafter by the District Court, the Banks could have availed the benefit of reimbursement as provided under clause 3(a) of the Scheme. However, the appellant-Banks instead of availing the same, agitated the matter up to the level of this Court by spending more money for recovery of petty amounts from the small borrowers. The appellant-Banks are free to approach the Department of Jammu & Kashmir Affairs, Government of India who brought the Debt Relief Scheme, under clause 3(a) for reimbursement, if the same is permissible, at this juncture for which no opinion is expressed by this Court. [Para 14] [1047,H; 1048,A-C] 2. As regards the contention that in absence of a specific plea in the form of written statement or counter affidavit, the Court should not have given relief applying the said scheme, it is true that all the respondents were served by publication in the daily newspapers and in most of the cases, the amount borrowed was less than Rs.10,000/-, which may be one of the reason, the respondents failed to contest the suit. In those circumstances when the Government of India itself with the assistance of the State of Jammu & Kashmir brought a Scheme called “Debt Relief Scheme” and the same was available on the date when all the suits were pending, considering the special circumstances, the course adopted by the Courts below cannot be faulted with. [Para 11] [1046,A-D] 3. Considering all the peculiar aspects of the present case, particularly, indebtedness and inability to repay the loan amount by the borrowers due to continuous militant activities in the State of Jammu & Kashmir particularly, at the relevant time, the amounts borrowed which were less than Rs. 10,000/- in most of the cases, liberal interpretation of the Courts below in the light of the various clauses in the Scheme itself and also of the fact that sub-clause (a) of Section 3 of the scheme provides reimbursement of waived loan amounts, this Court is not inclined to interfere with the orders of the Courts below. [Para 15] [1048,D-E] Raju Ramachandran, G.M. Kawoosa and N. Ganpathy for the Appellant. S. Mehdi Imam and Anis Suhrawardy for the Respondents.=, 2008(12 )SCR1035, , 2008(12 )SCALE117 , 2008(9 )JT473

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4817-4851 OF 2002 Jammu Rural Bank …. Appellant(s) Versus Mohd. Din & Ors. …. Respondent(s) WITH CIVIL APPEAL NOS. 4852-4854 OF 2002 AND CIVIL APPEAL NO. OF 2008 (Arising out of S.L.P. (C) No. 4901 of 2006) JUDGMENT P. Sathasivam, J. 1) Civil … Continue reading

age relaxation for attending examination to the post =In the present case the advertisement of the Public Service Commission issued in the year 2002, required the persons concerned to be of less than thirty five years of age at the relevant time. That age limit applied to all the candidates. There was no age relaxation in favour of the candidates belonging to the Scheduled Castes or Scheduled Tribes, though there was a quantum of reservation provided for them. The earlier resolution of the Full Court of the High Court passed in February 1982, will therefore, have to be read as providing only 1 for the quantum and not for any age relaxation. If there is no age relaxation in the rules, the same cannot be brought in by any judicial interpretation. In the circumstances we do not find any error in the judgment of the Single Judge or that of the Division Bench. 16. Although, we are not inclined to interfere with the order passed by the High Court on the judicial side, we do feel that the High Court on its administrative side should examine the issue as to whether age relaxation should be provided to the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes appearing for the Judicial Service Examination at the Munsif level as is provided to the candidates appearing for the Higher Judicial Service Examination. We hope that this will be done without much delay

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8093 OF 2004 Jamaluddin …Appellant Versus State of Jammu & Kashmir and Ors. …Respondents J U D G E M E N T H.L. Gokhale J. This appeal seeks to challenge the order passed by a Division Bench of the High Court … Continue reading

The case of the prosecution is that respondent Nos. 3 to 8 in criminal appeal No. 1660 of 2011 formed an lawful assembly on 29-06-2007, common object of which was to murder Surinder Singh and in prosecution of the common object of the said assembly, respondents Nos. 3 to 8 mounted a murderous assault on Surinder Singh, husband of the appellant, at village Sanoora, District Samba (J & K). The injured was immediately shifted to hospital for treatment. On the basis of the information given by the appellant, FIR No.113/2007 under Section 307 read with 109 of Ranbir Penal 3 Code was registered at police station Hiranagar, in connection with the aforesaid incident on June 29, 2007. On July 2, 2007 injured Surinder Singh succumbed to his injuries in Military Hospital, Satwari, Jammu and, therefore, offence punishable under Section 302 of Ranbir Penal Code was added. On the basis of FIR lodged by the appellant, investigation was undertaken. During the course of investigation statement of the appellant and other witnesses were recorded under Section 164 of the Code of Criminal Procedure 1989. The dead body of the deceased was sent for postmortem examination. After completion of the investigation, the investigating agency had filed charge sheet in the Court of learned Magistrate for offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal Code. As the offence punishable under Section 302 is triable exclusively by a Court of Sessions, the case was committed to Sessions Court for trial. The learned Additional Sessions Judge, after hearing the prosecution and the accused on the question of framing charge, framed necessary charge on March 24, 2008 against each accused for the offences punishable 4 under Sections 302, 109, 147, 148, 149 of Ranbir Penal Code. 3. Feeling aggrieved by the framing of above mentioned charges by the trial court on March 24, 2008, the respondent Nos. 3 to 7 in Criminal Appeal No.1660 of 2011 preferred Criminal Revision No. 29 of 2008 before the High Court. The High Court by order dated June 6, 2008 issued notice and summoned the record of the case from the trial court. On March 20, 2009, the respondent No. 8, who is original accused No.6, preferred a petition No. 54 of 2009 under Section 561-A of the Code of Criminal Procedure to quash order dated March 24, 2008 passed by the trial court framing charges against him for commission of offences punishable under Sections 302, 109, 147, 148 read with 149 of the Ranbir Penal Code. During the pendency of above numbered petitions, the High Court by order dated August 13, 2009 sent back the record to the trial court and granted liberty to the respondent Nos. 3 to 8 to seek bail from the trial court. When the above numbered Revision and the petition filed under Section 561-A were pending disposal before the High Court, the prosecution 5 examined three eye witnesses to the occurrence viz. (1) Santosh Kumari, i.e., the appellant herein, (2) Surishta Devi and (3) Shakti Devi. It may be stated that the appellant and the Shakti Devi have fully supported the case of the prosecution.

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.1660-1662 OF 2011 (Arising out of S.L.P. (Criminal) Nos. 751-753 of 2011) Santosh Kumari … Appellant Versus State of J & K & Others … Respondents J U D G M E N T J.M. PANCHAL, J. 1. The appellant is the widow … Continue reading

the provisions of Section 225 of the Code of Criminal Procedure, 1989 as applicable to the State of Jammu and Kashmir which reads as under :- “225. Effect of errors :- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned failure of justice.”

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.1660-1662 OF 2011 (Arising out of S.L.P. (Criminal) Nos. 751-753 of 2011) Santosh Kumari … Appellant Versus State of J & K & Others … Respondents J U D G M E N T J.M. PANCHAL, J. 1. The appellant is the widow … Continue reading

On the strength of a Will dated 25th May 1959, executed in her favour by one Purohit Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery of the schedule property in the plaint. It was alleged in the plaint that the appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully disposed her after getting the name of appellant No. 1 mutated in the records and that the three items of the schedule property were the separate properties of the testa- tor and that he was entitled to dispose them under the Will. The appellants averred in their written statement that the properties belonged to the joint family of which the first appellant and his father Purohit Mani Ram were members and as the properties were joint family properties, they cannot he disposed of by Will. It was further alleged that the Will was a forged one and is fictitious. The trial court, accepting the evidence of PW1, an advocate, who advised in the preparation of the Will and also an attest- ing witness, PW2 the scribe and PW3 who deposed the fact that the properties were self-acquired ones of late Purohit Mani Ram, decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed the claim as regards items l(b) and 2 holding that they were ancestral ones. On ap- peal, the High Court accepted the findings of the trial court and confirmed the decree as regards item l(a) of the property but modified the order as regards item l(b) and 2 by allowing the claim of the respondent to the extent of 1/2 share since under s. 27 of the Jammu & Kashmir Hindu Succession Act Mani Ram was entitled to dispose of his interest in the joint family property by Will. In appeal by certificate to this Court, the appellant contended: (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohi- bition against alienation introduced by Ordinance which came into force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of the Will; (ii) The hereditary profession of Mani Ram being that of a priest whatever he earned while practising that profession and all his acquisitions should be held to be joint family property. (iii) In view of the Mitakshara law applicable to the estate when partition of the joint family property takes place during the father’s life time at the instance of the son, the mother also has a share equal to him. The Court confirmed the decree in respect of item 1 (a) of the property in favour of the respondent, modified the decretal order of the High Court in respect of items 1(b) and 2 of the schedule property as 1/3rd in favour of appel- lant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd in favour of respondent as entitled by the Will. The Court, HELD: (1) The plea that the Will was executed after July 1959 when there was a prohibition against the alienation and that it was pre-dated and not executed 401 on the day on which it purports to be is without any sub- stance and against the evidence on record. [403 H, 404 A] (2) The contention that the Will is an unnatural one is also without substance. The non-disclosure of the execu- tion of the Will is understandable because Mani Ram did not want anyone, particularly his son, to know about his pos- sessing of the property by Will. [404 B, D] (3) The findings of the two lower courts that the Will is a genuine one and was executed by Mani Ram by his own free will cannot be assailed. In fact, there was no chal- lenge to the gist of the Will noted by PW2, the scribe, in one of his regularly kept record; there was no denial by the first appellant, the son of Mani Ram that the signature found in the Will was not that of his father and there is no reason why the cogent evidence of PW 1, a respectable advocate who spoke of his advising in the preparation of the Will having seen the executant sign the Will in his presence be not accepted. [405 A-C] (4) The income from the practice of a hereditary profes- sion will not be a joint family property. Item 1 (a) of the Property is the self-acquisition of Mani Ram and the decree of the appellate court so far as item No. 1 (a) is concerned must be confirmed. [406 A, D] Hanso Pathak v. Harmandil Pathak and Anr., AIR 1934 Allahabad 851, approved. Chalabhai Gaurishankar v. Hargowan Ramji & Ors. I.L.R. 36 Born. 94, over-ruled. (5) Under the Mitakshara law excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son. In the in- stant case the case of the first appellant was that the joint family consisted of himself and his father alone, though in the earlier partition suit filed by him he claimed 1/3rd share conceding that his father and mother are entitled to the other 2/3rd share. As no decision in re- spect of the interest of the male Hindu in Jammu & Kashmir was cited the question is remitted to the High Court for decision as to what is the extent of the interest as regards items I(b) & 2 of the plaint Schedule properties. [406 E-F, 407 B-E] Dular Koeri v. Dwarkanath Misser ILR 32 Cal. 234; Sumrun Thakoor v. Chunder Mun Misser & Ors., ILR 8 Cal. 17; Hos- banna Devanna Naik v. Devanna Sannappa Naik and Ors. ILR 48 Bom. 468 and Pratap Singh v. Dalip Singh ILR 52 All. 596, approved. (6) In view of s. 27 of the Jammu & Kashmir Hindu Succession Act, 1956 which provides that any Hindu male may dispose of by Will any property which capable of being disposed of by him in law and also explanation to that section which makes it clear that the interest of a male Hindu in a Mitakahara coparcenary property be deemed to be property capable of being disposed of by him within the meaning of the sub- section, in the instant case Mani Ram can dispose of his share under a Will. Admittedly the respondent, will be entitled to 1/3rd share in respect of item l(b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a). [406 D-E, 407 E-F] [The Court remitted the case back for the determination of the interest which Mani Ram had in the joint family property at the time of his death which he could dispose of by his Will and grant a decree accordingly.]

PETITIONER: LAKSHMI CHAND KHAJURIA & ORS. Vs. RESPONDENT: SMT. ISHROO DEVI DATE OF JUDGMENT31/03/1977 BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. GUPTA, A.C. CITATION: 1977 AIR 1694 1977 SCR (3) 400 1977 SCC (2) 501 ACT: Testamentary Will disposing of the ancestral property to a far relation, whether valid under s. 27 of the Jammu & … Continue reading

WHETHER ALL MARRIAGES IN Goa, Daman & Diu, ARE CIVIL CONTRACTS AS PER CIVIL CODE OF THAT STATE ?

As far as the Civil Code as enacted on 25th December, 1910, and the provisions of the law of Marriage as a Civil Contract in Goa, Daman and Diu which came into force on 26th May, 1911, are concerned, we are unable to agree with Ms. Aggarwal that all marriages performed within the territory of … Continue reading

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