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Patna

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The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 = High court instead of dismissing the writ petition on withdrawal of writ, ought to have consider the same under this act = “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.”= The inquiry was proceeded for about 11 years, when the finding was given that the appellant is insane and the order of compulsory retirement was passed on 15th October, 2007.= The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on 15th October, 2007. It is not the case of the respondents that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977. Therefore, even it is presumed that the appellant became insane, as held by the Inquiry Officer, mentally illness being one of the disabilities under Section 2(i) of the Act, 1995, under Section 47 it was not open to the respondents to dispense with, or reduce in rank of the appellant, who acquired a disability during his service. If the appellant, after acquiring disability was not suitable for the post he was holding, should have been shifted to some other post with the same pay scale and service benefits. Further, if it was not possible to adjust the appellant against any post, the respondents ought to have kept the appellant on a supernumerary post until a suitable post is available or, until the appellant attained the age of superannuation whichever was earlier.= The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer. In fact the High Court ought to have referred the matter to a Medical Board to find out whether the appellant was insane and if so found, in that case instead of dismissing the case as withdrawn, the matter should have been decided on merit by appointing an Advocate as amicus curiae. ; It is informed at the bar that in normal course the appellant would have superannuated from service on 31st July, 2012. we have no other option but to set aside the order of compulsory retirement of the appellant dated 15th October, 2007 passed by the respondents; the order dated 22nd December, 2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.2784/2008 and the impugned order dated 20th April, 2010 passed by the High Court of Delhi in W.P.(C)No.2622/2010 and the case is remitted to the respondents with a direction to treat the appellant continued in the service till the date of his superannuation. The appellant shall be paid full salary minus the subsistence allowance already received for the period from the date of initiation of departmental proceeding on the ground that he was suffering from mental illness till the date of compulsory retirement. The appellant shall also be provided with full salary from the date of compulsory retirement till the date of superannuation in view of the first and second proviso to Section 47 of the Act, 1995. If the appellant has already been superannuated, he will also be entitled to full retiral benefits counting the total period in service. The benefits shall be paid to the appellant within three months, else the respondents will be liable to pay interest at the rate of 6% per annum from the date the amount was due, till the actual payment. 21. The appeal is allowed with the aforesaid observations and directions but there shall be no order as to costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40495 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.  4944  OF 2013 (ARISING OUT OF SLP(C) NO.26400 OF 2010) ANIL KUMAR MAHAJAN  …APPELLANT VERUS UNION OF INDIA THROUGH SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI. AND OTHERS           … RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. 2. This appeal has been preferred by the appellant against the judgment of the Division Bench of the High Court of Delhi dated 20th April, 2010 in W.P.(C)No.2622 of 2010. The   relevant   portion   of   the   said   judgment   reads   as follows: “O R D E R 20.04.2010 After   some   arguments,   learned   counsel for  the  … Continue reading

fate of Saba and Farha, Craniopagus Twins (CTs) and their survival, unless subjected to surgical separation.= where a proper medical investigation could not be carried out by the medical team of AIIMS, mainly, because of the parental opposition. What they wanted is financial help for the maintenance of both Saba and Farah. Financial help, of course, has to be extended to them since parents are coming from poor circumstances, but when the lives of both are stake, can we not save the life of at least one. Medical team of AIIMS could not come out with a solution, as already indicated, they were apprehensive of the fact that the investigations had their own risk and had also opined that detailed medical treatment would be possible only after thorough investigation. We are sorry to note that nobody is concerned with the pain and agony CTs are undergoing, not even the parents, what they want is financial help as well as palliative care. No positive direction can be given in the absence of an expert medical opinion indicating that either of them can be saved due to surgical operation or at least one. Considering the facts and circumstances of this case, we are, however, inclined to give the following directions: 1. Civil Surgeon, Medical Centre, Patna should periodically carry on the medical examination of both Saba and Farah and send periodical reports, at least quarterly to AIIMS and AIIMS would make their own suggestion based on the investigation which is being conducted by the medical team from Patna. The State of Bihar is directed to meet the complete medical expenses for the treatment of both Saba and Farah and also would pay a consolidated amount of Rs.5,000/- monthly to look after both Saba and Farah. 3. CTscondition as well as the treatment given to them be reported to this Court every six months. 4. The State of Bihar is directed to move this Court for further directions, so that better and more scientific and sophisticated treatment could be extended to Saba and Farah. With these directions, this writ petition is disposed of.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INIDA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.232 OF 2012 Aarushi Dhasmana … Petitioner Versus Union of India and others … Respondents J UD G M E N T K.S. Radhakrishnan, J 1. We are, in this case, concerned with the fate of Saba and Farha, Craniopagus … Continue reading

service matter = Application of an erroneous “Model Answer Key” for evaluation of answer scripts of candidates appearing in a competitive examination is bound to lead to erroneous results and an equally erroneous inter-se merit list of such candidates. That is precisely what appears to have happened in the present appeals which arise out of a common judgment delivered by the High Court of Judicature at Patna whereby the High Court has directed the Bihar Staff Selection Commission to conduct a fresh examination and re-draw the merit list on that basis. For those who have already been appointed on the basis of the earlier examination, a fresh examination has been directed by the High Court before they are finally ousted from the posts held by them. The appellants who happen to be the beneficiaries of the erroneous evaluation of the answer scripts have assailed the order passed by the High Court in these appeals – In the result, we allow these appeals, set aside the order passed by the High Court and direct that – (1) answer scripts of candidates appearing in ‘A’ series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) CN Sinha and Prof. KSP Singh and the observations made in the body of this order and a fresh merit list drawn up on that basis. (2) Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit whatsoever. (3) In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages or other incidental benefits. (4) Such of the appellants as do not make the grade after reevaluation shall not be ousted from service, but shall figure at the bottom of the list of selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement No.1906 of 2006. (5) Needful shall be done by the respondents – State and the Staff Selection Commission expeditiously but not later than three months from the date a copy of this order is made available to them. 20. Parties are directed to bear their own costs.

  Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2525-2516 OF 2013 (Arising out of S.L.P. (C) Nos.5752-53 of 2008 Rajesh Kumar & Ors. etc. …Appellants Versus State of Bihar & Ors. etc. …Respondents With CIVIL APPEAL NO. 2517 OF 2013 (Arising out of SLP (C) No.6456 of 2008) … Continue reading

Hindu law–Illegitimate son of Sudra–Right to demand partition of separate property of father. =Under Hindu law, though an illegitimate son of a Sudra cannot enforce partition during his father’s lifetime, he can enforce partition after his father’s death if the father was separate from his collaterals and has left separate property and legitimate sons. =1952 AIR 225, 1952SCR 869, , ,

PETITIONER: GUR NARAIN DAS AND ANOTHER Vs. RESPONDENT: GUR TAHAL DAS AND OTHERS DATE OF JUDGMENT: 16/05/1952 BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN CITATION: 1952 AIR 225 1952 SCR 869 CITATOR INFO : R 1965 SC1970 (3) ACT: Hindu law—Illegitimate son of Sudra–Right to demand partition of separate property of father. … Continue reading

a second protest petition after filing final report is maintainable=The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, we fail to understand as to why it should not be maintainable.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2160 of 2011 (Arising out of SLP(Crl.) No. 2768 of 2010) Shiv Shankar Singh …Appellant Versus State of Bihar & Anr. …Respondents J U D G M E N T Dr. B.S. Chauhan, J. 1. This appeal has been preferred against the … Continue reading

Service Law : Appointment-Extra Departmental Branch Post Master (EDBPM)- Qualifications for : (i) passing of Matriculation Examination and (ii) possession of agricultural land on the last date of submission of application form-A candidate with more marks in the Matriculation Examination than a persan appointed to the post-The said candidate also possessed agricultural land on the last date of submission of application form-But the mutation entry could only be effected 10 days later-However, the said candidate was not appointed to the post of EDBPM-But the CAT directed appointment of the said candidate-High Court affirmed this decision-Correctness of- Held: Owning of agricultural land and getting the same entered in Revenue Records are two different and distinct things-The said candidate became owner of agricultural land before the last date of submission of application form and, therefore, she was eligible-Moreover, she was more meritorious than the person appointed as EDBPM since she had obtained more marks- Hence, authorities not justified in appointing some other person by ignoring the case of the said candidate-Hence, directions of CA T and High Court not interfered with. Appointment-Illegal appointment- Quashing of-An employee had been working on a post for a period of about 8 years-Effect of-An aggrieved candidate approached competent Tribunal immediately after issuance of order in favour of the other employee-Due to pendency of the matter before Tribunal the said candidate could not get the case decided and the matter finally adjudicated-Held : Case of the other employee to be considered for appointment in nearby vicinity if otherwise she is fit-Delay in disposal of case should not cause prejudice to the aggrieved candidate who had approached the Tribunal in time-Hence, CAT and High Court rightly set aside the appointment of the other employee and directed appointment of the aggrieved candidate. Evidence Act, 1872 : Section 35-Entry in Public record-Mutation entry in revenue records- Right or title to property-Held: It does not confer right or title to property- Owning of land and getting the same entered in revenue records are two different and distinct things-Mutation entry neither creates nor extinguishes title or ownership. The appellant was appointed to the post of Extra Departmental Branch Post master (EDBPM). The qualifications for appointment as EDBPM were passing of Matriculation Examination and possession of agricultural land on the last date of submission of the application form. The appellant fulfilled both the qualifications and was, therefore, appointed to the said post and she had been working in the said post for a period of almost 8 years. However, respondent No. 6 filed an application before the Central Administrative Tribunal challenging the appointment of the appellant on the ground that she had obtained more marks in the Matriculation Examination than the appellant. The appellant also contended that she had become the owner of an agricultural land on the basis of a gift deed before the last date of submission of the application form but the mutation entry could be effected only 10 days later. CAT allowed the application. High Court affirmed the said decision. Hence the appeal.

CASE NO.: Appeal (civil) 6275 of 2004 PETITIONER: SUMAN VERMA RESPONDENT: UNION OF INDIA & OTHERS DATE OF JUDGMENT: 24/09/2004 BENCH: Arijit Pasayat & C.K. Thakker JUDGMENT: J U D G M E N T (Arising from Special Leave Petition (civil) No. 8809 of 2004) Thakker, J. Leave granted. The present appeal is filed against … Continue reading

Code of Civil Procedure, 1908: ss.2(20) and 54, O. 20 r.18, O. 26 r.13 – Partition suit – Preliminary decree passed – Application for final decree – Resisted on the ground of limitation – DECREE – Preliminary decree and final decree – Concept of, in the context of partition suits and mortgage suits – SUIT: Suit for partition – Partition – Concept of – LEGISLATION: Suit – Filing of suit and securing relief to litigant – Proceedings in between – Need for legislation to avoid multiplicity of proceedings – =HELD: Where an application does not invoke the jurisdiction of court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation – Such an application is not one to which Limitation Act would apply – As declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit – Suit continues to be pending until partition, that is, division by metes and bounds, takes place by passing a final decree – An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree is neither an application for execution (falling under Article 136 of Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) – Code does not contemplate filing of an application for final decree – Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed -It is the duty and function of the court which in the normal course has to be performed by the court itself as a continuation of the preliminary decree – Performance of such function does not require a reminder or nudge from the litigant – The mindset should be to expedite the process of dispute resolution – The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation – Court concerned would expedite the final decree proceedings – Limitation. Lalta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Bom. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare 2008 (8) SCC 198, relied on HELD: There is a fundamental difference between mortgage suits and partition suits – In a preliminary decree in a mortgage suit (whether a decree for foreclosure under r.2 or a decree for sale under r.4 of O 34 CPC), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified – A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount – When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale – On the other hand, in a partition suit the preliminary decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress – In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court – In fact several applications for final decree are permissible in a partition suit – The application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds – Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit – Consequently, an application for a final decree in a mortgage suit is different from an application for final decree in a partition suit. HELD: `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees – The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty – A partition of a property can be only among those having a share or interest in it – A person who does not have a share in such property cannot obviously be a party to partition – `Separation of share’ is a species of `partition’ – When all co-owners get separated, it is a partition – Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds – In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds – This involves three issues (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner the property/properties should be divided by metes and bounds. HELD: Cases have been found where a suit is decreed or a preliminary decree is granted within a year or two and the final decree proceeding and execution takes decades for completion – This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system – Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits – A conceptual change regarding civil litigation, is required so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant – It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief – The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements – The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief – In so far final decree proceedings are concerned, there is no reason for even legislative intervention – As the provisions of the Code stand as on date, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same) – Practice and Procedure. Case Law Reference: AIR 1929 Oudh 456 relied on para 8 AIR 1945 Bom. 338 relied on para 8 AIR 1957 AP 40 relied on para 8 AIR 1965 Kar. 73 relied on para 8 AIR 1983 Orissa 121 relied on para 8 AIR 1989 Ker. 289 relied on para 8 AIR 1967 SC 1470 relied on para 8 2007 (2) SCC 355 relied on para 8 2008 (8) SCC 198 relied on para 8 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 17932/2009. From the Judgment and Order dated 15.1.2009 of the High Court of Judicature at Patna in C.R. No. 2216/2008. S.B. Sanyal and Subhro Sanyal for the Petitioner.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C] NO.17932 OF 2009 Shub Karan Bubna @ Shub Karan Prasad Bubna … Petitioner Vs. Sita Saran Bubna & Ors. … Respondents ORDER R. V. RAVEENDRAN, J. The first respondent and his mother filed a suit for partition against petitioner and two … Continue reading

The respondent No.1 was appointed to the Bihar Judicial Service as Munsif at Hajipur on January 13, 1955. On May 9, 1970, High Court of Patna recommended to the State Government the dismissal of respondent No.1 from service. On the basis of recommendation made by the High Court, the State Government issued a Notification dated January 15, 1972, dismissing the respondent No.1 from service.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7630 OF 2011 (Arising out of SLP(C) No. 4339 of 2009) High Court of Judicature at Patna …Appellant Versus Madan Mohan Prasad & Ors. …Respondents JUDGEMENT J.M. PANCHAL, J. Leave Granted 2. This appeal by grant of special leave, is directed against … Continue reading

Patna Electric Supply Company Limited (PESCO), was taken over by the appellant, Bihar State Electricity Board (BSEB), certain disputes arose regarding payment of compensation by BSEB to PESCO in respect of the assets of PESCO. This resulted in litigation and ultimately in C.A. No.2630 of 2 1982 this Court, while granting leave, directed that BSEB would pay to PESCO the purchase price on the basis of book-value in accordance with the provisions of the Indian Electricity Act, 1910. Since payments were not made by BSEB to PESCO in terms of the said directions, PESCO filed I.A. No.5 for appropriate directions to be given to BSEB in this regard.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A. NO. 5 IN CIVIL APPEAL NO. 2630 OF 1982 Bihar State Electricity Board … Appellant Vs. The Patna Electric Supply Co. Ltd. & Ors. Respondents O R D E R 1. After the respondent No.1, Patna Electric Supply Company Limited (PESCO), was taken over … Continue reading

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