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Change of name in C.B.S.E. - Educational records - not permitted - only spelling mistakes can be rectified - Total change of name for other name not allowed = Change of name in Educational records - not permitted - only spelling mistakes can be rectified - Total change of name for other name not allowed = KUM. DEEKSHAA DHARMAPURI, VSP. VS REGIONAL OFFICER, CBSC REGIONAL OFFICE & ANO.= published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=WA&mno=138&year=2013

posted 22 Nov 2013 22:45 by murali mohan Mandagaddi

Change of name in C.B.S.E. - Educational records - not permitted - only spelling mistakes can be rectified - Total change of name for other name not allowed =

 her name in the records of the school was Kum. Dharmapuri Sai Sri Meghana and as she intends to change her name to Kum. Deekshaa Dharmapuri she made a request to the respondents and the same was rejected. 

as per byelaw No.69.1 of the C.B.S.E. Examination Bye-Laws, no change in name/surname, once recorded in the Board’s record, shall be made.  However, correction in name/surname/father’s name/mother’s name to the extent of spelling errors, factual typographical errors etc., can be done. 

The Hon’ble Single Judge having considered the matter observed that the request made by the petitioner is nothing but complete change of her name, which is impermissible as per law.  His Lordship found that there is no merit in the writ petition and dismissed the same.


WA 138 / 2013
WASR 172643 / 2011
PETITIONERRESPONDENT
KUM. DEEKSHAA DHARMAPURI, VSP.  VSREGIONAL OFFICER, CBSC REGIONAL OFFICE & ANO.
PET.ADV. : ANJANA DEVI, SATYANARAYANARESP.ADV. : CHAYA DEVI
SUBJECT: WADISTRICT:  VISAKHAPATNAM


THE HON’BLE THE CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE

AND

THE HON’BLE SRI JUSTICE B.N.RAO NALLA

 

                                                                                    

WRIT APPEAL NO.138 OF 2013

 

 

DATED:7.2.2013

 

Between:                                                                            

 

Kum. Deeksha Dharmapuri                              …  Petitioner

 

And

 

 

Regional Officer

CBSC Regional Office

Neo 3J Block

Annanagar West

Chennai

and another                                                  … Respondents

 

 

 

 THE HON’BLE THE CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE

AND

THE HON’BLE SRI JUSTICE B.N. RAO NALLA

 

WRIT APPEAL NO.138 OF 2013

 

JUDGMENT: (per the Hon’ble the Chief Justice Sri Pinaki Chandra Ghose)

 

          This writ appeal is directed against the order dt.27.4.2011 passed by the Hon’ble Single Judge, in W.P. No.3071 of 2011.

          The appellant – writ petitioner filed the writ petition to declare the action of respondent No.1 in rejecting the application of the appellant to change her name in her academic records, as illegal, arbitrary and null and void, and for consequential directions.

          The case of the petitioner was that her name in the records of the school was Kum. Dharmapuri Sai Sri Meghana and as she intends to change her name to Kum. Deekshaa Dharmapuri she made a request to the respondents and the same was rejected. 

          Respondent No.1 has filed counter in the writ petition wherefrom it appears that as per byelaw No.69.1 of the C.B.S.E. Examination Bye-Laws, no change in name/surname, once recorded in the Board’s record, shall be made.  However, correction in name/surname/father’s name/mother’s name to the extent of spelling errors, factual typographical errors etc., can be done. 

The Hon’ble Single Judge having considered the matter observed that the request made by the petitioner is nothing but complete change of her name, which is impermissible as per law.  His Lordship found that there is no merit in the writ petition and dismissed the same.

          Being aggrieved and dissatisfied with the said order dt.27.4.2011 passed by the Hon’ble Single Judge, this writ appeal is filed.

          Learned counsel appearing in support of this writ appeal only submitted that change of name of the petitioner as requested can be made by the respondents.

          We do not find any law in support of his submission, which he tried to made before us.  It appears to us that there is no merit in the writ appeal.

          The writ appeal is accordingly dismissed.  No costs.

         

 

 

________________________

PINAKI CHANDRA GHOSE, CJ

 

 

 

 

_____________________

                                                                          B.N. RAO NALLA, J      

7.2.2013

 

bnr

         

 

 

 

 

 

 

 

 

being a revenue officer, he tampered the revenue records and issued pahanies infavour of his interested persons- instead of removing from service, his two increments were order to cut.=no disorder.

posted 5 Nov 2011 23:46 by murali mohan Mandagaddi

THE HON'BLE SRI JUSTICE B.PRAKASH RAO AND THE HON'BLE SRI JUSTICE G.BHAVANI                 
Writ Petition No.17139 of 2000

18-01-2010 

Ch.Anjaiah 

Government of AP, rep. by its Revenue Secretary, Revenue Department, 
Secretariat, Hyderabad

Counsel for Appellant: Sri Sudhakar Kulkarni

Counsel for Respondent: G.P. for Services

:JUDGMENT:   

        The petitioner who has been working as a Junior Assistant in the revenue
unit of the respondent filed this writ petition under Article 226 of the
Constitution of India, inter alia, assailing the orders of the Andhra Pradesh
Administrative Tribunal in O.A.No.6492 of 1994, dated 10th December 1999,
dismissing his application filed under Section 19 of the Administrative
Tribunals Act, 1985 wherein he assailed the impugned proceedings issued by the
respondent No.1 dated 23-8-1993 confirming the hierarchy of remedies the
imposition of punishment against him for stoppage of two annual grade increments
with cumulative effect.
        Briefly the facts led to the present proceedings are that the petitioner
who is an ex-service man was appointed as Junior Assistant on 29-6-1984 after
due selection made through the process of Andhra Pradesh Public Service 
Commission, and accordingly he was posted as Village Officer.  In pursuance of a
complaint stated to have been made by the M.L.A of Ramannapet and Sarpanch of   
Mothkur against the petitioner alleging tampering of the entries in the pahanis,
the Revenue Divisional Officer, Bhongir on 1-8-1990 visited the Mandal Revenue
Office, Mothkur where the petitioner is working.  Thereafter, the said Revenue
Divisional Officer addressed a letter dated 6-8-1990 to the Collector observing
that entries in the pahanis for the year 1960-61 to the effect of inclusion of
Sri K.Sathaiah son of Chinna Ramulu against the land in Sy.Nos.415 and 460 with
different ink and hence there is a tampering of record and sought for an
enquiry.  Thereupon, the Collector, Nalgonda appointed a Grain Purchasing
Officer, Nalgonda as Enquiry Officer on 28-8-1990.  The petitioner was placed
under suspension pending enquiry on 12-10-1990.  The enquiry officer vide Memo
No.GP-2/22-90, dated 9-4-1991 framed two charges by Kalvala Narsimhulu son
of Sathaiah stating that as per the revenue records i viz., Charge No.1 that the
petitioner submitted a note on the application filedn the pahanis for the years
1956-57, 1957-58,
1963-64 and 1967-68 the said applicant's name is appearing in pattedar column
against the land in Sy.Nos.415 and 460, however, as per the pahanis of the said
years the name of the application does not find against the said survey numbers.
Thus, therefore the petitioner has submitted a misleading note resulting in
issuance of copies of the pahanis for the above years to a person who is not
entitled to take them, secondly, the Charge No.2 was that there is a failure on
the part of the petitioner in the note dated 16-10-1989 pointing out such
tampering, and therefore, it clearly indicates that the said tampering was got
done in the pahanis by himself or with his knowledge.  On 29-4-1991 the
petitioner submitted explanation denying all the allegations in the charges.
Thereafter, an enquiry was conducted by the said enquiry officer and the said
officer submitted a report holding that in respect of charge No.1 since there is
no specific denial by the petitioner except trying to throw the responsibility
on the higher officers, and therefore, it was his legitimate duty to verify the
records properly and submit correct note to his superior which was not done,
hence, the said charge stood proved.  However, in regard to the second charge,
it was observed by the enquiry officer that there is no material evidence to
establish that the said tampering was done by the petitioner, and in the absence
of any such positive evidence the charge becomes doubtful.  Further taking into
consideration the inexperience of the petitioner, the enquiry officer gave the
benefit of doubt to the delinquent on the said charge.  Ultimately, it is only
on the charge No.1 the finding was held partially against him.  Thereupon, the
Collector issued a show-cause notice on 28-7-1991 as to why he should not be
removed from the service.  The said show cause notice was served on the
petitioner on 14-8-1991.  On 3-9-1991 the petitioner submitted the explanation
and ultimately the Collector by proceedings dated
12-1-1992 passed the orders of punishment of withholding two annual grade
increments, one with cumulative effect and the other one without cumulative
effect.  Challenging the same, the petitioner filed the appeal before the
Commissioner of Land Revenue, Hyderabad and the same was dismissed on     
29-9-1992.  The further appeal preferred by the petitioner to the Government was
rejected on 23-8-1993 by the impugned memo which has been assailed before the  
Andhra Pradesh Administrative Tribunal, in the said O.S.6492 of 1994, which was
also dismissed.  Hence, the writ petition.
        Heard Sri P.R.Prasad, the learned counsel appearing for the petitioner and
the learned Government Pleader for Services-II.
  On a conspectus of the submissions made from both sides where the main attack 
on behalf of the petitioner is in regard to the correctness of the procedure
adopted in the enquiry and there being a failure on the part of the authorities
to provide him the proper opportunity or even to produce any evidence or
material in support of the charges, the question which boils down for
consideration is as to whether on the facts and circumstances there is a failure
on the part of the authorities, especially, the enquiry officer in holding a
proper enquiry as contemplated under the Rules and if there is any denial of
proper opportunity to the petitioner?
In support of the aforesaid contention the main provision of law, which has been
relied is Rule 19 (2) of the Andhra Pradesh Civil Services (Classification,
Control and Appeal) Rules, 1991, which reads as follows:
Rule 19 (2) :- A disciplinary authority competent under these rules to impose
any of the penalties specified in clauses (i) to (v) of Rule 9 or in Rule 10 may
institute disciplinary proceedings against any Government servant for the
imposition of any of the penalties specified in [clauses (vi to 9x) of Rule 9
notwithstanding   that such disciplinary authority is not competent under these
rules to impose any of the latter penalties.

        On a bare reading of the aforesaid provision a due procedure  has been
contemplated in respect of the enquiries to be conducted against a delinquent,
there cannot be any dispute to the aforesaid steps in the process of an enquiry.
However, it has to be seen on the facts of this case whether there is any
deviation from the procedure.  As far as the Charge No.1 is concerned, the
enquiry officer sought to proceed on the ground that there is no specific denial
and the same was taken into consideration by the Tribunal.  Even in this Court
there is no denial to the fact that the petitioner submitted the said note.  The
only question is whether there is any lapse on his part in pointing out the
tampering which was found.  Though the case of the petitioner sought to rest in
trying to shift the blame to the head assistant and the Mandal Revenue Officer
who acted on the said note and issued pahanis on the ground that they also
should be proceeded against since there is a similar such lapse occurred on
their part.  However, it is to be seen that there being no denial of the
preparation of the said note by the petitioner, which has been accepted by the
higher-ups, the fact remains that the said tampering or any doubt in this regard
is found absent in the said note put up by the petitioner.  There is no reason
as to why the same should be found absent nor there is any explanation on the
part of the petitioner as to why he could not possibly bring to the notice of
the higher-ups in the said note about the said tampering, which even on a
perusal of the record, it was found that it can be seen by naked eye and that
too with a different ink.  Therefore, the approach of the enquiry officer and
the consideration of the similar point by the Tribunal in assessing the plea as
to want of enquiry or examining any witness in support, is perfectly justified
and in order.  The said Charge No.1, does not in fact on the face of it require
any further establishment having regard to the absence of denial as to the
authorship of the said note.  The only thing, which could have been possibly
explained by the petitioner is as to why the said tampering aspect is found
absent in the said note, which is lacking.  Therefore, it cannot be said that
for the purpose of this charge, there is any further probe is required nor any
examination of the witnesses on behalf of the authorities to establish the said
charge against the petitioner.  Thus, the necessity or requirement of any
enquiry in proving any charge and examining any witness or material in support
thereof depends on the nature of charge and the explanation given by the
delinquent officer.  On the face of it, it cannot be said that in every case
irrespective there is denial or no denial, the enquiry should go in the same
speed, as one would require for establishing the charge by examining the
witnesses where there is a total denial on the each and every allegation and
also the authorship.  Where as in the present case, there being no denial as to
the note put up by the petitioner and the only gray area which found absent
about the tampering of the record, does not require any further probe since the
said tampering exist on the record.  Even at this stage, after processing
through the appeal, further appeal and also an approach to the tribunal, there
is no explanation forthcoming on behalf of the petitioner as to why he could not
possibly mention about the tampering or any doubt in regard to those entries
especially when it can be seen to a naked eye.  Thus, we are of the view that
the plea set up on behalf of the petitioner that there is no enquiry in this
regard properly by the enquiry officer and no witness is being examined, does
not hold any water or any justification.  Hence, we are not prepared to accept
the same and the same is accordingly rejected.
        Coming to the other charge, the enquiry officer himself has held that
there being no direct evidence available on record as to raising any pointer to
the petitioner about the process of such tampering in the record, it was held in
his favour and the same is not being assailed by the respondent herein by way of
appeal or further appeal or even before the tribunal by any separate
application.  Therefore, the said finding which is a fact, has become final and
does not require any probe into the same nor there is any grievance as such on
behalf of the petitioner in this regard.
        Therefore, taking into consideration the totality of the facts and
circumstances, and especially, where the charge No.1 about the failure on the
part of the petitioner as to basic obligation to bring to the notice of higher
ups in regard to any such irregularities, there has been proper punishment of
withholding the increments, which is perfectly justified and it cannot be said
that the same is not commensurate or has no nexus to the gravity of charge as
such.
        In the above circumstances, we hold that there are no merits in the above
writ petition nor there is any error to warrant any interference by this Court.
Hence, the writ petition is dismissed. No costs.
.

due full eligibility, the petitioner is notionally promoted with all benefits to the chief medical officer.=Respondent herein was working as Professor, Government Nizamia Tibbi College, Charminar and her grievance in the O.A was that while she was working as Senior Medical Officer she was eligible to be considered and promoted as Chief Medical Officer for the panel year 1998-99 itself. However, she could not be empanelled for various reasons and only for the panel year 2001-02 the respondent claims that she could have been empanelled and promoted if the petitioners had taken into consideration the existing anticipated vacancies in conformity with Rule 6 of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short, 'the Rules').

posted 5 Nov 2011 23:35 by murali mohan Mandagaddi

THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRI JUSTICE VILAS V.               
Writ Petition No.14979 of 2009

21-01-2010 

The Government of Andhra Pradesh  
rep. by its Principal Secretary,
Health, Medical and Family Welfare(l.1) Dept.,
A.P.Secretariat, Hyderabad and another 

Dr.Mohammadi Fatima   

Counsel for petitioners: Government Pleader for Services-I

Counsel for respondent No.1 :  Sri P.Ravi Shankar

:ORDER:  (Per Sri Justice Vilas V. Afzulpurkar)

        This writ petition is filed by the State questioning the final orders of
the Andhra Pradesh Administrative Tribunal allowing O.A.No.5944 of 2007 by
order, dated 30.10.2008.
Respondent herein was working as Professor, Government Nizamia Tibbi College, 
Charminar and her grievance in the O.A was that while she was working as Senior
Medical Officer she was eligible to be considered and promoted as Chief Medical
Officer for the panel year 1998-99 itself.  However, she could not be empanelled
for various reasons and only for the panel year 2001-02 the respondent claims
that she could have been empanelled and promoted if the petitioners had taken
into consideration the existing anticipated vacancies in conformity with Rule 6
of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short, 'the
Rules').  It is an admitted fact that in the said panel year 2001-02 only four
vacancies were taken into consideration excluding the anticipated vacancies and
four seniors of the respondent were promoted.  However, out of the said four
promotees - Dr.Najam Fathima retired on 31.12.2001, Dr.Syed Afzalunnisa retired
on 31.5.2002 and Dr.Farooq Ahmed and Dr.Md.Jaghngi both retired on 31.8.2002. 
The respondent therefore contended that all the said four promotees, who were
empanelled in the year 2001-02, retired immediately after being promoted in the
currency of the panel year and if the petitioners had taken into consideration
the anticipated vacancies arising out of their retirement, the respondent being
next in seniority, she could have got the benefit of promotion as Chief Medical
Officer during the panel year 2001-02 itself.  It was also contended before the
Tribunal that no panels were drawn for the subsequent years i.e., 2002-03, 2003-
04 and 2004-05 on account of the Government considering the modification and
amendment of the Rules.  Subsequently, in the panel year 2005-06 the respondent
was considered and she was actually promoted on 31.1.2007.  She therefore 
approached the Tribunal for the relief seeking that she may be declared to have
been entitled to be notionally promoted as Professor/ Chief Medical Officer from
the panel year 2001-02 itself with all consequential benefits.
The said O.A. was resisted by the petitioners by contending that they have
strictly followed Rule 6 of the Rules and that their being four vacancies in the
posts of Chief Medical Officer during the said panel year 2001-02 cannot be
disputed and to the extent of anticipated vacancies as claimed by the
respondent, the petitioners' contention was that the said anticipated vacancies
would arise only on promotion of the empanelled officers in the promotional
cadre and as such they cannot be taken into consideration.
The Tribunal, however, disagreeing with the said contention of the petitioners,
held that for no fault of the respondent she was not included in the panel year
2001-02 on account of the mistake committed by not taking into consideration the
vacancies for the said panel year in accordance with Rule 6 referred to above.
The Tribunal, therefore, allowed the O.A. and gave directions to give notional
promotion with all consequential benefits to the respondent from the panel year
2001-02.  Questioning the said order, the petitioners have approached this Court
in this writ petition.
This Court, while admitting the writ petition on 27.7.2009 issued notice and on
10.9.2009 had granted interim suspension.  Now the learned counsel for the
respondent has moved an application seeking vacation of the said interim order.
We have heard both the learned counsel on either side and with their consent the
main writ petition itself is being disposed of.
        Learned Government Pleader appearing for the petitioners in support of the
writ petition contends that strict interpretation of Rule 6 of the Rules has not
been appreciated by the Tribunal.
For the sake of convenience, it is appropriate to extract relevant portion of
Rule 6, which deals with method of preparation of panels.
                
"Method of preparation of panels:
                                ............
                                ............
                
(c) The panel of candidates for promotion or appointment by transfer to a
service or class of a service, in any case where it is necessary to consult the
Commission on the suitability of candidates for such appointment shall be
prepared ordinarily in the month of September every year reckoning 1st September
of the year as the qualifying date to determine the eligibility of a candidate
for such appointment, which shall cease to be in force on the afternoon of the
31st of December of the succeeding year or till the next panel is prepared
whichever is earlier.  The period from 1st September of the year to 31st August
of the succeeding year shall be reckoned for purpose of determining the number
of vacancies during the panel.
(d) The panel of candidates under sub-rule (b) or sub-rule (c) shall consist of
such number of candidates as is equal to the number of vacancies which are
estimated to arise on the following basis during the currency of that list:
(i) the existing vacancies, including the vacancies which were not filled up in
the previous years for any reason;
(ii) (1) vacancies to arise owing the retirement
(2) consequential vacancies due to promotion or appointment by transfer:
          Provided, that when the number of qualified and eligible candidates to
be included in the panel of candidates is less than the number of vacancies
estimated to arise during the currency of that list, such number of candidates
eligible and found fit only shall be included in the panel irrespective of the
number of vacancies."

        Clause (c) stipulates that period from 1st September of the year to 31st
August of the succeeding year shall be reckoned for the purpose of determining
number of vacancies during the panel year.  Clause (d) stipulates that the
number of vacancies have to be assessed on the basis of: (i) existing vacancies;
(ii) vacancies arising out of retirement which in other words is also described
the anticipated vacancies and consequential vacancies due to promotion or
appointment by transfer.  Learned Government Pleader contends that under clause
(d) (ii) (1) vacancies to arise owing the retirement clearly refers to the
retirement in the promotional posts.
        So far as the present case is concerned, all the incumbents who were
empanelled were holding post of Senior Medical Officers and not promotional post
of Chief Medical Officer, the vacancies in the promotional posts on account of
retirement therefore could not have been taken into consideration when all the
four empanelled officers as well as the respondent herein were in the cadre of
Senior Medical Officers only and not the promotional cadre of Chief Medical
Officer.  The learned Government Pleader therefore contends that the panel was
rightly prepared showing four vacancies and four empanelled Senior Medical
Officers were promoted as Chief Medical Officers.  He therefore submits that the
Tribunal committed an error in thinking that the vacancies arising out of
retirement of such promoted officers also ought to have been taken into
consideration.
        Learned counsel for the respondent, however, placed reliance upon the very
same rules to contend that the purpose of the rules requiring the manner in
which the panel is to be prepared and the manner in which the vacancies are to
be assessed clearly show that apart from the existing vacancies, the vacancies
which may arise on account of retirement of the persons holding the said posts
as well as consequential vacancies due to retirement or appointment by transfer
also have to be taken into consideration for assessing the vacancies to be
filled.  He also relies upon the recommendation of the Commissioner, Department
of Ayush, dated 9.3.2005, which was sent over to the Government seeking
clarification.  In the said recommendation, the Commissioner himself has
recorded that since all the four promotees from the said panel year 2001-02 were
retired within the currency of the panel itself, the said vacancies ought to
have been taken into consideration as anticipated vacancies for the purpose of
panel year 2001-02.  The said recommendation of the Commissioner, however, was  
not agreed to by the Government and the Government issued Memo.No.5482/I.1/2005-   
3, dated 20.11.2006 by observing that "in the instant case, as there were no
clear vacancies during the panel year 2001-02, the review of the earlier panel
does not arise."  The said issue was once again examined by the Government as 
per the interim orders of the Tribunal in the present O.A. and a further memo
No.19952/I.1/2007, dated 19.2.2008, was also issued reiterating the stand taken
in the earlier memo referred to above.  The learned counsel, therefore, submits
that the very action of the petitioners in not taking into consideration the
anticipated vacancies being contrary to Rule 6 referred to above and the
Tribunal has rightly set aside the said memo of the Government and directed to
give notional promotion to the respondent with consequential benefits.
        We have considered the aforesaid contentions.  The reading of Rule 6
clearly supports the contentions of the learned counsel for the respondent.  The
intent and purpose of preparation of the panel and assessment of the vacancies
envisages that not only the existing vacancies, but anticipated vacancies
arising out of retirement, promotion or appointment by transfer are required to
be taken into consideration while assessing the number of vacancies for
preparing the panel.  Clauses (c) and (d) of Rule 6 of the Rules therefore have
to be liberally construed so as to advance the intent and purpose of preparation
of panels so that the promotional posts are filled up whenever vacancies arise
and there is no undue delay in filling up those vacancies.  Clause (c) of Rule 6
referred to above also stipulates that the currency of the panel from 1st
September of the year to 31st August of the succeeding year are required to be
reckoned for purpose of number of vacancies which include not only existing
vacancies, but anticipated vacancies during the entire aforesaid block period.
Rule 6(c) extracted above shows that for the purpose of assessment of vacancies
the block period from 1st September of the year to 31st of the August of the
succeeding year shall be reckoned.  It is also provided that the panel was
prepared shall be reckoned from 1st September of the year as the qualifying date
to determine the eligibility of the candidate for such appointment and such
panel shall cease to be in force on the afternoon of the 31st December of the
succeeding year or till the next panel is prepared whichever is earlier.  The
petitioners in this case have therefore only taken into consideration the
existing 4 vacancies in the promotional post of Chief Medical Officer and
excluded the anticipated vacancies in the said cadre and thereby the
consideration of the respondent for empanelment was ignored.  It is not in
controversy that the vacancies in the said promotional post of Chief Medical
Officer occurred during the relevant period of 1st September to 31st August,
which was necessary to be counted for assessment of vacancies, and though the 
life of the said panel was from 1st September to 31st December of the succeeding
year.  For not taking into consideration the anticipated vacancies after the
retirement of the incumbent Chief Medical Officer during the relevant period,
the promotion to the said category could not be made in their place as the
respondent and other eligible officers were not empanelled in accordance with
Rule 6. These vacancies therefore clearly amount to anticipated vacancies and
ought to have taken into consideration while assessing the number of vacancies
and panel for the year 2001-02.  The recommendation of the Commissioner dated 
9.3.2005 referred to above clearly shows that the respondent's claim was not
considered in the empanelment though she was fully eligible and qualified for
promotion and was in the zone of consideration for the said promotion, but in
view of the fact that the anticipated vacancies were not taken into
consideration her name was not included in the panel.  Even before the Tribunal,
there is no controversy about the eligibility of the respondent and she was in
fact promoted to the said category on 31.1.2007.  We are therefore in agreement
with the view of the Tribunal that the name of the respondent ought to have been
taken into consideration in the said panel 2001-02 against the contingency of
retirement of Dr.Najam Fathima on 31.12.2001.  The order of the Tribunal
therefore to that extent does not warrant any interference.
        However, the Tribunal had given a direction that the respondent be
notionally promoted with consequential benefits.  We find that the post being a
selection post and is subject to consideration by the D.P.C., the Tribunal could
have directed the petitioners to convene a review D.P.C. and consider the case
of the respondent for the said promotion in view of the fact that she is fully
eligible to hold the said post for the said panel year 2001-02 as she was in the
zone of consideration.  Accordingly, the direction of the Tribunal shall stand
appropriately modified and instead there shall be a direction to the petitioners
to forthwith convene a review D.P.C for the panel year 2001-02 and consider
promotion of the respondent herein in the vacancy arising out of retirement of
Dr.Najam Fatima on 31.12.2001 in the category of Chief Medical
Officer/Professor/Reader, if found fit.  However, the said promotion of the
respondent shall be only notional in view of the fact that she is actually
working in the said promotional post only after 31.1.2007.   She will be
entitled for the other consequential benefits arising out of the said notional
promotion.
It is represented that the respondent would be reaching superannuation by the
end of June, 2010 and in view of the same it would be just and appropriate to
direct the petitioners to convene the review D.P.C. and complete the exercise,
as directed above, within a period of two months from the date of receipt of a
copy of this order.
        The writ petition is accordingly disposed of with the above modification.
No order as to costs.
.

temporary service can not be added and counted for granting pension after obtaining regular service.=Particularly when the services rendered by a temporary employee are followed by regularization of his service, there is no reason to exclude the period of temporary service for computing the qualifying service for the purpose of pensionary benefits.

posted 5 Nov 2011 23:23 by murali mohan Mandagaddi

THE HON'BLE Ms. JUSTICE G. ROHINI      
Writ Petition No.14962 OF 2006 

19-01-2010 

Devarakonda Sri Lakshmi  

The Government of A.P., rep.by Principal Secretary
to Government, Youth Advancement, Tourism &   
Culture (Sports) Dept., Secretariat, Hyderabad
and  another

Counsel for the petitioner      :  Sri P. Rathnam

Counsel for the respondents: G.P. for Tourism, Sports & Youth Services

:ORDER:  

        The  petitioner herein was appointed as a Library Assistant  in Sports
Authority of A.P. on consolidated pay of Rs.750/- per month vide proceedings of
the 2nd respondent dated 23.3.1988.  Subsequently, she was extended the scale of 
pay of Rs.910-30-1240-35-1625 w.e.f. 1.9.1992 in the  post of Library Assistant.
On 22.9.1997  she was promoted as Senior Assistant  and ultimately retired from
service  on attaining the age of superannuation on 30.11.1997.
  Aggrieved by the alleged action of the respondents in not  extending the
retirement benefits,  including pension, she filed W.P.No.5365 of 2003. The said
writ petition was disposed of by this Court by order dated  28.03.2003 with a
direction to the Sports Authority of A.P. to pass appropriate orders with regard
to the claim of the petitioner for retirement benefits. Pursuant thereto, the
2nd respondent vide memo dated 30.06.2003  informed the petitioner  that  since
she had rendered less than the prescribed qualifying service of ten years, she
was entitled to receive  only the service gratuity as per Rule 46 read with Rule
45 (1) of the A.P. Revised Pension Rules, 1980 and since the same was already
paid to her, there were no dues payable to her.
Claiming that the period during which she worked on consolidated pay shall also
be taken into consideration for calculating the "qualifying service"  the
petitioner made several representations  before the respondents 1 and 2.  In
response to the same, the 2nd respondent - Sports Authority of A.P. - by letter
dated 27.9.2003  informed the petitioner that  the services rendered by the
petitioner on consolidated pay from 24.03.1988 to 31.8.1992 cannot be taken into
account for the purpose of qualifying service in the absence of specific orders
by the Government relaxing the Pension Rules in her favour.  The 1st respondent
- Government of A.P. - vide memo dated 12.02.2004  informed that there were no
specific provisions in the pension rules for counting the service rendered on
consolidated pay for the purpose of qualifying service and accordingly rejected
the petitioner's request  for releasing the pensionary benefits.  Aggrieved by
the said action of the respondents, the present writ petition is filed.
The 2nd  respondent filed a counter-affidavit reiterating the stand  taken in
the impugned orders that the period  during which the petitioner worked on
consolidated pay  i.e., from 24.3.1988 to 31.8.1992 cannot be taken into account
for the purpose of qualifying service.
        I have heard the learned counsel for both the parties and perused the
material on record.
Rule 42 of A.P. Revised Pension Rules 1980 provides that every Government 
Servant to whom the said Rules apply   shall compulsorily retire on attaining
the age of superannuation as provided in the Fundamental Rules as amended from 
time to time. Rule 33 provides that a superannuation pension shall be granted
subject to Rule 45 to a Government Servant who is retired as per Rule 42.   Rule
45 (1) provides the scale of service gratuity  in the case of  a Government
Servant retiring before completing qualifying service of 10 years. Rule 45 (2)
prescribes the scale of pension in the case of a Government Servant  retiring
after completing qualifying service of not less than 10 years.  Rule 13 which
deals with qualifying service runs as under :
"13. Commencement of qualifying service:-  Subject to the provisions of the
rules, qualifying service of a Government servant shall commence from the date
he takes charge of the post to which he is first appointed either substantively
or in an officiating or temporary capacity:
Provided that -
(a)  in the case of a Government servant in a Class IV service or post who held
in lien or a suspended lien on a permanent pensionable post prior to the 17th
November, 1960, service rendered  before attaining the age of sixteen years
shall not count for any purpose; and
(b)    in the case of a Government servant not covered by clause (a), service
rendered before attaining the age of eighteen years shall not count, except  for
compensation gratuity.

Rule 29  further provides that  every Government Servant  who at the time of
retirement on superannuation has put in a qualifying service of  less than 33
years  shall be entitled to add to the qualifying service for the purpose of
pensionary benefits, the difference between 33 years and the qualifying service
at the time of superannuation, such difference  not exceeding 3 years.
In the present case, the petitioner worked on consolidated pay from 24.03.1988
to 31.08.1992 (4 years 5 months). Her services were regularized and she was
granted the scale of pay w.e.f. 1.9.1992 and she retired from service on
attaining the age of superannuation on 30.11.1997. Thus after regularization,
she worked  for a period  of   5 years 3 months.
According to the petitioner, for the purpose of her qualifying service, her
initial date of appointment  on 24.03.1988  shall be taken into consideration
and thus she had put in 9 years 8  months qualifying service and after adding
the weighatge of 3 years under Rule 29 her total qualifying service should be 12
years 8 months.  Thus, according to the petitioner, Rule 45 (2) is attracted and
consequently she is entitled to the pension as set out in the Table (B)
thereunder.
On the other hand, the contention of the respondents is that the period of
service from 24.03.1988 to 31.8.1992 during which the petitioner worked on
consolidated pay cannot be taken into account for the purpose of qualifying
service.  Consequently according to the respondents she had rendered  the total
qualifying service of only 8 years 3 months after adding the weightage of 3
years under Rule 29.   The same being less than  the minimum qualifying service
of 10 years, the respondents contended that Rule 45 (1)  applies and therefore
the petitioner had rightly been granted only service gratuity.
Having regard to the rival contentions, the question that arises for
consideration is whether the period during which the petitioner worked on
consolidated pay can be taken into consideration for the purpose of counting her
qualifying service.
It is true that there is no specific provision under the  A.P. Revised Pension
Rules, 1980 for counting the service rendered on consolidated pay.  However,
Rule 13  of the Rules  provides that  the qualifying service of a Government
Servant shall commence  from the date he takes charge of the post to which he
was first appointed either substantively or in temporary capacity.   What is
temporary capacity  has not been specified.  The order of the 2nd respondent
dated 23.3.1988  under which the petitioner was initially appointed as Library
Assistant  runs as under :

"Smt. D. Sree Lakshmi, W/o. Late D.R. Swamy, is hereby temporary appointed as   
Library Assistant in the Sports Authority of A.P. on a consolidated pay of
Rs.750/- (Rupees seven hundred and fifty only) per month.
2.      Her appointment is purely temporary and her services can be terminated at
any time without any notice or assigning any reasons therefor.
3.      She should report for duty immediately with all the relevant original
certificates of Educational Qualifications, age etc."

The order itself shows that  the petitioner's appointment was temporary. Thus
she worked in temporary capacity till her services were regularized w.e.f.
1.9.1992.  However the respondents declined to take into consideration the
period of service from 24.3.1988 to 31.8.1992 on the ground that during the said
period she worked on consolidated pay.  It is relevant to note that the
petitioner's initial appointment on 23.3.1988 as Library Assistant was against a
clear vacancy and subsequently  she was granted regular scale of pay attached to
the post of Library Assistant w.e.f. 1.9.1992.  In the circumstances, merely
because she was appointed on a consolidated pay, it cannot  be held that  the
period during which she worked on consolidated pay  shall be excluded for the
purpose of qualifying service.
 The law is well-settled that  the mere form of the order is irrelevant  but
the surrounding facts and circumstances shall be taken into consideration to
find out  the true character of the order.  Despite the use of a specific
expression, the Court has to consider whether the employee had  a right to such
post.   Particularly when the services rendered  by a temporary employee are
followed by regularization of his service, there is no reason to exclude the
period of temporary service for computing the qualifying service  for the
purpose of  pensionary benefits.
It is also relevant to notice that  Rule 14 of the A.P. Revised Pension Rules,
1980 provides that  the services of a Government Servant  shall not qualify  for
pension unless his duties and pay are regulated by the Government  or under
conditions determined by the Government. Sub-rule (2) of Rule 14 further  made
it clear that  the expression 'service' means that service under the Government
and paid by the Government from the Consolidated Fund of the State.
In the light of Rule 14, the true test is whether the services of the employee
were regulated by the Government and whether he was paid from the Consolidated 
Fund of the State.  Any period of service which satisfies the above test, in my
considered opinion shall be treated as qualifying service for the purpose of
Rule 13.
For the aforesaid reasons, I do not find any substance in the contention of the
respondents that the period of service spent by the petitioner on consolidated
pay cannot be taken into consideration for determining her qualifying service.
Accordingly, the impugned action of the respondents in denying the petitioner
pensionary benefits is hereby declared as arbitrary and unreasonable. In the
result, the impugned order is hereby set aside and the Writ Petition is disposed
of with a direction to the respondents to  pass appropriate orders afresh with
regard to the petitioner's claim for pensionary benefits keeping in view the
observations made above.  Such fresh order shall be passed as expeditiously as
possible preferably within a period of four weeks from  the date of receipt of
this order. No costs.
.

there is no provision to condone delay and restoration in the Employees' Provident Fund and Miscellaneous Act, 1952.writ can be filed

posted 5 Nov 2011 23:14 by murali mohan Mandagaddi   [ updated 5 Nov 2011 23:16 ]

THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA            
Writ Petition No.458 of 2010

20-01-2010 

M/s.Mubarak Industries 

The Employees' Provident Fund Appellate Tribunal, New Delhi and another.

Counsel for Appellant: Sri K.Sudershan.

Counsel for Respondent: Standing Counsel for EPF Tribunal, New Delhi.

:ORDER:  

The petitioner-industry is an establishment covered under the provisions of the
Employees' Provident Fund and Miscellaneous Act, 1952.  According to the 
petitioner, as the contributions and administrative charges etc. of its
employees have not been remitted for the period from April 1995 to June 2000, an
assessment order, dated 25-05-2001, was passed by the 2nd respondent-Assistant  
Provident Fund Commissioner, Hyderabad, fixing the due amount at Rs.5,19,381/- 
and directed the petitioner to pay the said amount within a period of ten days.
However, as the petitioner did not pay the same, the recovery proceedings have
been initiated by the 2nd respondent on 07-01-2002.  Questioning the assessment
order and the recovery proceedings, the petitioner approached the appellate
authority i.e. 1st respondent-Employees' Provident Fund Appellate Tribunal, New
Delhi, and filed an appeal in A.T.A.No.494 (1) of 2001.  The 1st respondent-
Tribunal dismissed the said appeal on 12-09-2008 on the ground that the
petitioner was absent and was not evincing any interest to proceed with the
matter.   Thereafter, the petitioner filed an application for restoration of the
appeal as provided for under Rule 15 (2) of the Employees Provident Fund
Tribunal (Procedure) Rules, 1997 (for short 'Rules, 1997). However, the same was
dismissed by the 1st respondent on the ground that the said restoration
application is to be filed within a period of 30 days, but the same was filed on
27-01-2009 i.e. after lapse of more than 30 days.  As against the said order,
the petitioner approached this Court and filed the present writ petition.
2. Heard the learned counsel for the petitioner and the learned standing counsel
appearing for the respondents and perused the record.
3. It is true that Rule 15 (2) of the Rules, 1997 provides for filing of an
application for recalling the order of dismissal for default within 30 days and
there is no provision provided for filing of an appeal against the order of
dismissal along with a petition to condone the delay.  Simply because such a
provision is not there, it cannot be said that the Court is powerless to allow
such an application.  Every Court has got inherent powers and the inherent
powers can as well be exercised in a case where there is no provision,
particularly, in a case of this nature where substantial amounts are involved on
technical grounds, and hence, the case of the petitioner cannot be thrown out
saying that the application is not maintainable as the Court is not empowered to
condone the delay, and in which event, the persons like the petitioner will
suffer irreparable loss.  Of course, while exercising the said discretion, the
Court or a Tribunal is always at liberty to allow the application by imposing
certain conditions such as payment of costs etc.
4. In the light of the above discussion, this Court is of the view that the
petitioner may be given an opportunity to advance its case before the 1st
respondent-Tribunal on merits.
5. Accordingly, the writ petition is allowed, the impugned order dated 19-11-
2009 passed by the 1st respondent-Tribunal is set aside, and accordingly, the
restoration petition filed in A.T.A.No.494 (1) of 2001, is ordered, however, on
a condition of the petitioner depositing 50% of the amount in demand, within a
period of eight weeks from today.  It is made clear that in the event of its
failure to comply with the above direction, the original order passed in
A.T.A.No.494 (1) of 2001, dated 19-11-2009, shall automatically come into
operation.  There shall be no order as to costs.
.

departmental proceedings - valid.

posted 9 Mar 2011 01:45 by murali mohan Mandagaddi


"On 10.06.1999 Sri T.Srinivasa Rao, H.C.1306 in charge of the P.S. front guard
Madaram left P.S. without permission of S.H.O. and went to Madaram centre along 
with P.C.2288 on his own Hero Honda Motor Cycle, beat one Devi Ravinder 
regarding his due amount of Rs.200/- and thereby exhibited high handed behavior
towards Devi Ravinder by bringing him to P.S. in an Auto and putting him in lock
up without permission of the S.I. or without any case against him."


Departmental proceedings are quasi-judicial in nature and though the provisions
of the Evidence Act do not strictly apply to the said proceedings, the
principles of natural justice should be complied with. No doubt, this Court,
while exercising power of judicial review, is entitled to consider as to whether
while inferring commission of misconduct on the part of a charged officer,
relevant evidence has been taken into consideration and irrelevant facts have
been excluded therefrom. Inference on facts must be based on some evidence which 
meets the requirements of legal principles


the Tribunal') whereby the O.A. filed by the
petitioner/applicant was dismissed, upholding the punishment of postponement of
increments for two years with effect on future increments and pension and
treating the suspension period from 22.07.1999 to 25.08.1999 as 'not on duty',
imposed upon him by the disciplinary authority, the third respondent, which was
affirmed in appeal and review, by the second and first respondents respectively.







THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE SANJAY                    
Writ Petition No.2299 of 2006

25-02-2010 

T.Srinivasarao

The Additional Director General of
Police (Admn.), A.P., Hyderabad and Others. 

Counsel for Petitioner:  Sri D.Linga Rao

Counsel for respondents: G.P. for Services-I.

:ORDER: (Per GM,J)  

        This writ petition is filed assailing the legality and validity of the
order dated 15.09.2004 passed in O.A. No.1150 of 2004 by the A.P. Administrative
Tribunal, Hyderabad, (for short, 'the Tribunal') whereby the O.A. filed by the
petitioner/applicant was dismissed, upholding the punishment of postponement of
increments for two years with effect on future increments and pension and
treating the suspension period from 22.07.1999 to 25.08.1999 as 'not on duty',
imposed upon him by the disciplinary authority, the third respondent, which was
affirmed in appeal and review, by the second and first respondents respectively.
        The petitioner was initially recruited as a Police Constable in Adilabad
District in the year 1981, subsequently promoted as a Head Constable in the year
1994 and has been working as such. While so, the third respondent issued charge
memo bearing C.No.PR/37/99 dated 16.07.1999 to the petitioner which is to the
following effect:
"On 10.06.1999 Sri T.Srinivasa Rao, H.C.1306 in charge of the P.S. front guard
Madaram left P.S. without permission of S.H.O. and went to Madaram centre along 
with P.C.2288 on his own Hero Honda Motor Cycle, beat one Devi Ravinder 
regarding his due amount of Rs.200/- and thereby exhibited high handed behavior
towards Devi Ravinder by bringing him to P.S. in an Auto and putting him in lock
up without permission of the S.I. or without any case against him."

Thereafter, the Sub-Divisional Police Officer, Nirmal, was appointed as Enquiry
Officer to conduct an enquiry into the allegations made in the charge sheet
dated 16.07.1999 against the petitioner. During the enquiry, 8 witnesses were
examined and 11 documents were marked on behalf of the prosecution/department.  
However, the petitioner did not choose to examine any witnesses nor exhibit any
document on his behalf despite sufficient opportunity being afforded to him.
Thereupon, the enquiry was completed following the due procedure and the Enquiry
Officer submitted his report dated 30.04.2001 stating that the charge levelled
against the charged officer is held proved. After receipt of the enquiry report,
the disciplinary authority furnished a copy of the enquiry report to the
petitioner vide Memo C.No.39/PR/A5.1/ 99 dated 01.06.2001 inviting his reply to
the same. Thereafter, the petitioner submitted his representation on 27.08.2001
stating that the findings of the Enquiry Officer are completely based on
presumptions and seeking total exoneration from the charge levelled against him.
Not being satisfied with the same, the disciplinary authority inflicted upon the
petitioner the punishment of postponement of increments for two years with
effect on future increments and pension and treating the suspension period from
22.07.1999 to 25.08.1999 as 'not on duty' vide proceedings No.39/PR/99
(DO.3504/02) dated 07.10.2002. 
        Aggrieved thereby, the petitioner preferred an appeal to the Deputy
Inspector General of Police, Warangal Range, Warangal, the second respondent, 
which was rejected vide proceedings No.C.No.127/APP/A/02 (RO No.75/2003) dated   
26.03.2003. The review petition filed by the petitioner before the Additional
Director General of Police (Admn.), Andhra Pradesh, Hyderabad, the first
respondent, too met with the same fate. Challenging the same, the petitioner
filed the subject O.A. before the Tribunal.
        The Tribunal, after perusing the material on record and upon hearing the
arguments put forth by the learned counsel on either side, considered the matter
in the right perspective and came to the conclusion that there was no illegality
in the orders impugned before it and upheld the order of punishment passed by
the disciplinary authority. Holding so, the Tribunal dismissed the O.A.
Questioning the same, the petitioner filed the present writ petition.
        Heard Sri D.Linga Rao, learned counsel for the petitioner and the learned
Government Pleader for Services-I.
        The learned counsel for the petitioner vehemently contended that the
Tribunal had neither adverted to the material on record nor considered the
contentions put forth before it and therefore the order of the Tribunal suffers
from  error apparent on the face of the record. He pointed out that the
complainant, P.W.2, namely Devi Ravinder, stated inter alia in his evidence
during the enquiry before the Enquiry Officer that the charged officer, Srinivas
Rao neither asked mamool (bribe) nor abused and beat him for the amount of
Rs.200/-. The learned counsel argued that when this statement, which is crucial
evidence, is taken into consideration, there is nothing left on record to
support the allegation made in the charge memo dated 16.07.1999. He submitted 
that the earlier statement of P.W.2 recorded by the Circle Inspector of Police,
P.W.1, during the preliminary enquiry is false as it was obtained under duress
and that the Enquiry Officer without considering the material on record,
mechanically came to the conclusion that the charge levelled against the
petitioner was held proved with a view to safeguard P.W.1 and the Sub-Inspector
of Police, Madaram P.S., P.W.7. He finally pointed out that the disciplinary
authority, without application of mind, merely followed the report of the
Enquiry Officer and imposed punishment upon the petitioner and that the
appellate authority as well as the revisional authority, without considering the
material on record, mechanically rejected the appeal and review petition
respectively. He therefore prayed that the writ petition may be allowed.
        On the other hand, the learned Government Pleader for Services-I submitted
that the Tribunal had considered the matter in the proper perspective and
rightly dismissed the O.A., upholding the orders impugned therein and that the
same does not warrant interference from this Court. He drew our attention to the
relevant portions of the evidence of P.W.7, Sub-Inspector of Police, Madaram,
and P.W.8, Medical Officer, Madaram Dispensary, which read as under: 
"P.W.7 
The said Devi Ravinder further stated that on so many times the said HC
threatened him and on 10.06.1999 quarreled with him at the bus stand area over
the debt of Rs.200/- where he was brutally beaten up by the said HC and was
brought to the police station and was kept in the lock-up and requested to send
him to hospital as he was injured. On seeing the condition, he prepared a
requisition to the Medical Officer, Madaram Dispensary and sent the injured Devi
Ravinder. After collecting the medical report, he submitted a repot to ASP,
Bellampalli videLr.No.98/R3/99, dt.10.06.1999 requesting to take necessary
action against HC 1306 for his manhandling."
        "P.W.8 
On 10.06.1999 about 11.45 Hrs. one Devi Ravinder came to him along with a MLC  
requisition from SI of Police, Madaram and he gave treatment to the said Devi
Ravinder and found injuries on left and right hips and swelling of middle finger
of left hand. When he enquired about the injuries, he told that one Head
Constable beat him. He further stated that the signature found on MLC
requisition belongs to him."

He therefore pointed out that the Enquiry Officer, being a quasi- judicial
authority, arrived at a finding upon taking into consideration the material
brought on record by the respective parties to the effect that the charge
levelled against the petitioner is held proved; and that the disciplinary
authority, following the due procedure and considering the material before him,
rightly imposed punishment upon the petitioner. He lastly contended that the
appellate authority and the revisional authority properly considered the matter
and rejected the appeal and revision petition respectively. He accordingly
prayed that the writ petition may be dismissed in toto.
The learned counsel for the petitioner drew our attention to a Judgment of the
Supreme Court in SHER BAHADUR v. UNION OF INDIA1, in support of his contentions.    
Therein, the Supreme Court held thus:
"7. It may be observed that the expression "sufficiency of evidence" postulates
existence of some evidence which links the charged officer with the misconduct
alleged against him. Evidence, however, voluminous it may be, which is neither
relevant in a broad sense nor establishes any nexus between the alleged
misconduct and the charged officer, is no evidence in law. The mere fact that
the enquiry officer has noted in his report, "in view of oral, documentary and
circumstantial evidence as adduced in the enquiry", would not in principle
satisfy the rule of sufficiency of evidence. ...... In our view, this is clearly
a case of finding the appellant guilty of charge without having any evidence to
link the appellant with the alleged misconduct. The High Court did not consider
this aspect in its proper perspective as such the judgment and order of the High
Court and the order of the disciplinary authority, under challenge, cannot be
sustained, they are accordingly set aside."

Per contra, the learned Government Pleader for Services-II drew our attention to
the Judgment of the Supreme Court in ROOP SINGH NEGI v. PUNJAB NATIONAL BANK2 to          
support his contentions. In the said case, the Supreme Court had considered
elaborately the case law relating to departmental enquiry and inter alia held
thus:
"14.    Indisputably, a departmental proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasi-judicial function. The charges levelled
against the delinquent officer must be found to have been proved. The enquiry
officer has a duty to arrive at a finding upon taking into consideration the
materials brought on record by the parties. ........"

        In MONI SHANKAR v. UNION OF INDIA3, it was held thus:    
"The departmental proceeding is a quasi-judicial one. Although the provisions of
the evidence Act are not applicable in the said proceeding, principles of
natural justice are required to be complied with. The Court exercising power of
judicial review are entitled to consider as to whether while inferring
commission of misconduct on the part of a delinquent officer relevant piece of
evidence has been taken into consideration and irrelevant facts have been
excluded therefrom. Inference on facts must be based on evidence which meet the
requirements of legal principles."

        In UNION OF INDIA v. H.C. GOEL4, the Supreme Court held thus:   
"In exercising its jurisdiction under Art. 226 on such a plea, the High Court
cannot consider the question about the sufficiency or adequacy of evidence in
support of a particular conclusion. That is a matter which is within the
competence of the authority which dealt with the question; but the High Court
can and must enquire whether there is any evidence at all in support of the
impugned conclusion. In other words, if the whole of the evidence led in the
enquiry is accepted as true, does the conclusion follow that the charges in
question is proved against the respondent? This approach will avoid weighing the
evidence. It will take the evidence as it stands and only examine whether on
that evidence legally the impugned conclusion follows or not. ......"

Considering the rival contentions put forth by the learned counsel on either
side, the point that arises for our consideration is as to whether the Tribunal
has committed any jurisdictional error or acted within the aforestated
limitations.
        The contention of the learned counsel for the petitioner that P.W.2,
namely, Devi Ravinder, deposed that the charged officer (petitioner) had neither
asked for mamool (bribe) nor abused and beaten him and that when the said
evidence is taken into consideration, there is no evidence on record to support
the finding of the Enquiry Officer that the charge levelled against the
petitioner is held proved and that this Court, while exercising power of
judicial review, can take note of these things, cannot be accepted in as much as
the Enquiry Officer, upon considering the evidence adduced and analyzing the
documents exhibited during the enquiry, arrived at a conclusion based on
preponderance of probabilities that the charge was proved.
In the process of recording the said conclusion, the Enquiry Officer properly
considered the evidence of P.W.1, the Circle Inspector of Police, Tandur, P.W.7,
the Sub-Inspector of Police, the superiors of the petitioner, together with
P.W.8, Medical Officer, which clearly demonstrated that P.W.2, Devi Ravinder,
was beaten up and illegally detained in the lock-up by the petitioner and that
injuries were found on the body of P.W.2. It is manifest from the record that
during the preliminary enquiry, the Circle Inspector of Police, Tandur, P.W.1,
recorded the statements of P.Ws.2 to 6, which were subsequently marked during 
the departmental enquiry and basing thereupon, he sent his report on 16.06.1999
to the Superintendent of Police, Adilabad, the disciplinary authority, which was
the basis for framing charge against the petitioner under the charge memo dated
16.07.1999. The Enquiry Officer observed in his report that except P.Ws.1 and 7,
nobody supported the prosecution evidence as the charged officer/petitioner won
over witnesses, P.Ws.2 to 6 and 8. However, considering the material on record
and  placing reliance on the evidence of P.Ws.1 and 7, the Enquiry Officer came
to a conclusion that the charge levelled against the petitioner was proved on
the principle of preponderance of probabilities.
It is true that the victim, P.W.2, whose statement was recorded by P.W.1 in the
preliminary enquiry whereby he levelled allegations against the charged officer,
turned hostile during the departmental enquiry. When the charged officer is a
policeman, P.W.2 would, in all probability, apprehend further mental agony and
suffering, which consequence he was not prepared to face, if the petitioner was
found guilty of the charge levelled against him. As rightly pointed out by the
Enquiry Officer, the petitioner succeeded in his attempt to win over the
witnesses except, P.Ws.1 and 7, who were his superiors and whose evidence  
clinchingly proved the charge levelled against the petitioner.
The disciplinary authority, on receipt of the enquiry report, furnished a copy
thereof to the petitioner inviting his reply prior to a final decision thereon.
Having received the representation from the petitioner and not being satisfied
with the same, the disciplinary authority imposed punishment upon the
petitioner. The appellate authority and the revisional authority considered the
appeal and revision petition with reference to the record and rejected the same
respectively.
The Tribunal, after carefully perusing and considering the entire material
placed before it, held that there was no illegality in the orders impugned in
the O.A. warranting interference and the O.A.
Departmental proceedings are quasi-judicial in nature and though the provisions
of the Evidence Act do not strictly apply to the said proceedings, the
principles of natural justice should be complied with. No doubt, this Court,
while exercising power of judicial review, is entitled to consider as to whether
while inferring commission of misconduct on the part of a charged officer,
relevant evidence has been taken into consideration and irrelevant facts have
been excluded therefrom. Inference on facts must be based on some evidence which 
meets the requirements of legal principles.
A perusal of the material on record shows that the conclusion reached by the
Enquiry Officer cannot be said to be based on 'no evidence' and cannot be said
to be perverse. The Enquiry Officer gave cogent and convincing reasons for his
finding. The disciplinary authority rightly imposed the punishment upon the
petitioner on the basis thereof. The charged officer/petitioner, being a member
of a disciplined force, we do not find that the punishment imposed upon him is
in excess of the charge levelled and proved against him. In view of the
discussion hereinabove, the contentions urged by the learned counsel for the
petitioner do not deserve consideration. The Judgment in SHER BAHADUR1 relied  
upon by the learned counsel for the petitioner has no application to the present
case.
        In the light of the law down by the Supreme Court in its decisions
referred to hereinabove and having due regard to the facts and circumstances of
the case on hand as discussed supra, it is manifest that this is not a case of
'no evidence' but one where the conclusions arrived at by the Enquiry Officer
upon the evidence adduced before him are assailed. Such reappraisal cannot be
done by this Court in exercise of its certiorari jurisdiction under Article 226
of the Constitution. Adequacy of the evidence is a matter which is within the
domain and competence of the authority which deals with the question.
        For the foregoing reasons, we find that the Tribunal did not commit any
jurisdictional error and acted well within its limitations while passing the
impugned order dated 15.09.2004 in O.A. No.1150 of 2004. The writ petition fails
and is accordingly dismissed. No costs.

?1 (2002) 7 SCC 142 
2 (2009) 2 SCC 570 
3 (2008) 3 SCC 484 
4 AIR 1964 SC 364  
.

how to appoint a public prosecutor ?

posted 9 Mar 2011 01:33 by murali mohan Mandagaddi   [ updated 9 Mar 2011 01:42 ]



The consultative process is not mandatory
for appointment of a Public Prosecutor.  Secondly, even where the panel is
required to be forwarded, the discretion of the District Collector to prepare a
panel in consultation with the District Judge, is almost unfettered.  Further it
is no part of the duty of the District Judge to send the report of assessment
about an existing incumbent, either under Section 24 of the Code, or under
G.O.Ms.No.187, which prescribes the procedure for appointment of Law Officers.


Two principal contentions are urged on behalf of the petitioner.  The first is
that the appointment of a Special Public Prosecutor from out of a panel,
forwarded by the Collector is contrary to law; and the second is that the
District and Sessions Judge was under obligation to forward a report, assessing
the performance of the petitioner during his tenure, and that the failure in
this regard would vitiate the proceedings.

Section 24 of the Code provides for appointment of Public Prosecutor of
different categories.  Broadly stated, they fall into four categories.
a) Public Prosecutors to be appointed by the State Government in the High Court;
(sub-section-1)
b) Public Prosecutors to be appointed by the Central  Government; (sub-section-
2)
c) Public Prosecutors to be appointed in the Districts; (sub-sections-3 to 6);
and 
d) Special Public Prosecutors for conducting any case or class of cases (sub-
section-8).

No process of consultation, as such, is prescribed for appointment against first
two categories.  Sub-sections (3) to (6) of Section 24 of the Code, prescribe
the procedure for appointments of the third category.  This includes preparation
of a panel of advocates of a particular standing by the District Collector to
the Government in consultation with the District Judge.  The requirement is so
mandatory that sub-section (5) stipulates  that the Government shall not appoint
an advocate as a Public Prosecutor unless his name appears in the panel to be
forwarded by the District Collector.

Sub-section (8) of Section 24 of the Code, providing for appointment of Special
Public Prosecutor, reads as under:

"The Central Government or the State Government may appoint, for the purposes of
any case or class of cases, a person who has been in practice as an advocate for
not less than ten years as a Special Public Prosecutor."

Either directly or by necessary implication, it does not refer to the
consultation process.



THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY             
Writ Petition No.362 of 2010

25-02-2010 

B.Venkateswara Rao  

The State of Andhra Pradesh and others 

Counsel for the petitioner:  Sri K.V.Subramanya Narsu

Counsel for the Respondents:  GP for Law and Legislature - R1
                                Mr.B.Adinarayana Rao - R2  

:ORDER:  

 The Court of I Additional District and Sessions Judge, in every district, is
designated to try the cases under the A.P. Protection of Depositors and
Financial Establishments Act 1959 (for short 'the Act').  The petitioner was
appointed as a Special Public Prosecutor for the Court of I Additional District
and Sessions Judge, Visakhapatnam, under             sub-section (8) of Section
24 of the Code of Criminal Procedure (for short, 'the Code'), by the 1st
respondent through its orders, in G.O.Rt.No.992, Law Department, dated
12.06.2007.  On expiry of the term of the petitioner, the Additional Public
Prosecutor for the Court of III Additional District Judge, Visakhapatnam, was
placed in-charge of the cases, that were dealt with by the petitioner.  In
modification of that arrangement, the District Collector issued proceedings,
dated 07.05.2009, continuing the petitioner as such till new appointment is
made. 

The 1st respondent issued G.O.Ms.No.40, Law Department, dated 07.01.2010,   
appointing the 2nd respondent, as the Special Public Prosecutor, for the said
Court.  The petitioner challenges the same, on several grounds.  It is pleaded
that the petitioner was chosen to deal with a particular category of cases and
that for the past two years, he became acquainted and has handled them to a
substantial extent.  According to him, the appointment of the 2nd respondent
would be detrimental to the interests of the State.  It is also urged that
serious procedural irregularities have taken place in the appointment of the 2nd
respondent.
A detailed counter-affidavit is filed by the 2nd respondent, denying the
allegations made and contentions advanced on behalf of the petitioner.  It is
pleaded that the petitioner does not have any right to continue in the post and
that the impugned G.O., was issued in the same manner as was done when the   
petitioner was appointed.

Sri K.V.Subramanya Narsu, learned counsel for the petitioner, submits that the
procedure for appointment of a Special Public Prosecutor, under sub-section (8)
of Section 24 of the Code, is substantially different from the one prescribed
under sub-sections (3) to (7) of that Section, and that in the instant case, the
1st respondent followed the procedure under those provisions, while appointing
the 2nd respondent as a Special Public Prosecutor.  He further contends that in
case the same procedure applies for the appointment of Special Public
Prosecutors also, the District and Sessions Judge ought to have enclosed report
as to the performance of the petitioner.  He submits that failure in this regard
resulted in denial of an opportunity for the petitioner to be considered.

Learned Government Pleader for Home and Sri B.Adinarayana Rao, learned counsel   
for the 2nd respondent, on the other hand, submit that the mere fact that a
panel was forwarded by the District Judge, even for appointment of a Special
Public Prosecutor does not invalidate the exercise.  According to them, the
stand of the petitioner is not only vague but is self-contradictory.

The petitioner was appointed as a Special Public Prosecutor, under Section 24(8)
of the Code in the year 2007, vide G.O.Rt.No.992, dated 12.06.2007.  From a
perusal of that G.O., it is not clear as to whether the appointment preceded the
sending of a panel by the District Collector in consultation with the District
Judge.  The term of the petitioner expired and he was continued as in-charge
till a new incumbent is appointed.  The
2nd respondent was appointed as Special Public Prosecutor for a period of three
years vide G.O.Ms.No.46, dated 07.01.2010.  In this G.O., there is a reference
to the proceedings, dated 26.10.2009 of the District Collector, Visakhapatnam.
Therefore, it has to be presumed that the appointment is with a consideration of
the panel.

Two principal contentions are urged on behalf of the petitioner.  The first is
that the appointment of a Special Public Prosecutor from out of a panel,
forwarded by the Collector is contrary to law; and the second is that the
District and Sessions Judge was under obligation to forward a report, assessing
the performance of the petitioner during his tenure, and that the failure in
this regard would vitiate the proceedings.

Section 24 of the Code provides for appointment of Public Prosecutor of
different categories.  Broadly stated, they fall into four categories.
a) Public Prosecutors to be appointed by the State Government in the High Court;
(sub-section-1)
b) Public Prosecutors to be appointed by the Central  Government; (sub-section-
2)
c) Public Prosecutors to be appointed in the Districts; (sub-sections-3 to 6);
and 
d) Special Public Prosecutors for conducting any case or class of cases (sub-
section-8).

No process of consultation, as such, is prescribed for appointment against first
two categories.  Sub-sections (3) to (6) of Section 24 of the Code, prescribe
the procedure for appointments of the third category.  This includes preparation
of a panel of advocates of a particular standing by the District Collector to
the Government in consultation with the District Judge.  The requirement is so
mandatory that sub-section (5) stipulates  that the Government shall not appoint
an advocate as a Public Prosecutor unless his name appears in the panel to be
forwarded by the District Collector.

Sub-section (8) of Section 24 of the Code, providing for appointment of Special
Public Prosecutor, reads as under:

"The Central Government or the State Government may appoint, for the purposes of
any case or class of cases, a person who has been in practice as an advocate for
not less than ten years as a Special Public Prosecutor."

Either directly or by necessary implication, it does not refer to the
consultation process.  The appointment under this provision is almost akin to
the one, under sub-sections (1) and (2).  In Paramjit Singh Sadana v. State of
A.P.1, a learned Single Judge of this Court took the view that the consultation
process provided for under sub-sections (4) and (5) of Section 24 of the Code
would also apply to the appointment of a  Special Public Prosecutor under sub-
section (8).  This was overruled by a Division Bench of this Court in its
judgment in State of Andhra Pradesh v. Margadarsi Financiers 20092 over-ruled
the said judgment.  That was a case where a Special Public Prosecutor was
appointed without any consultation process.  The Division Bench repelled the
contention, that the appointment of a Special Public Prosecutor does not become
vitiated, for want of consultation and forwarding of panel under Sections 4 and
5 of Section 24 of the Code. In a way, the case on hand is just the opposite.

With the judgment of a Division Bench of this Court, referred to above, the
position of law becomes clear, namely, that a Special Public Prosecutor can be
appointed without there being any panel forwarded by the District Collector, in
consultation with the District Judge.  In this case,  the appointment of the 2nd
respondent was made on the basis of the panel.  Though it was competent for the
1st respondent to appoint the 2nd respondent as Special Public Prosecutor,
without calling for, or consideration of the panel, the mere fact that such a
panel existed, does not, in any way, render the appointment, illegal.  The
reason is that, though such a procedure is not mandatory for appointment of a
Special Public Prosecutor, it is not prohibited.  Secondly, if the 1st
respondent could have appointed, the 2nd respondent, without there being any
panel, an objective exercise in ascertaining from the concerned authorities, as
to the capabilities of the persons does not become a vitiating factor.  Being
the ultimate executive authority of the State, the 1st respondent can choose any
mechanism to satisfy itself to arrive at a just and proper conclusion as long as
the step chosen by it is not prohibited by law.  Therefore, the first contention
advanced on behalf of the petitioner cannot be accepted.

The second contention is, in a way, self-contradictory.  The petitioner
reconciles to the fact that a panel was forwarded and that the 2nd respondent
was chosen out of it.  His grievance is that his name was not included and that
the District Judge did not forward the assessment about his functioning for the
previous term.  To certain extent, the discussion undertaken in the preceding
paragraphs cover this aspect also.  The consultative process is not mandatory
for appointment of a Public Prosecutor.  Secondly, even where the panel is
required to be forwarded, the discretion of the District Collector to prepare a
panel in consultation with the District Judge, is almost unfettered.  Further it
is no part of the duty of the District Judge to send the report of assessment
about an existing incumbent, either under Section 24 of the Code, or under
G.O.Ms.No.187, which prescribes the procedure for appointment of Law Officers.

Viewed from any angle, the Writ Petition does not merit any consideration, and
it is accordingly dismissed.  There shall be no order as costs.

?1 2008 (2) ALT (Crl.) 339
2 2009 (2) ALT (crl.) 260
.

appointment on compensation grounds - delay.

posted 2 Mar 2011 21:12 by murali mohan Mandagaddi






In this case the respondent was deprived of benefit
because of delay in submitting the representation.    We have also noticed that
the Tribunal straight away directed the respondents 1,2,3 and 5 to forward the
entire file relating to the compassionate appointment of the son of the
applicant to the 4th respondent for consideration to provide appointment by
condoning the delay within two months.  The Tribunal exceeded its limit by so
directing the respondents.  The Tribunal ought not to have under taken the
exercise of condoning the delay and should have remitted back the matter so as
to enable the department to process the application of the applicant-respondent
and to forward the same for considering the request relating to compassionate
appointment of her son








THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE SANJAY                    
Writ Petition No. 23202 of 2009

15-02-2010 

The Directorate  General (Personnel) Military Engineer Service, E-in-C's
Branch, Army Headquarters and four others. 

Smt B. Indira, W/o Late R. Sudarshan, aged about 40 years 

Counsel for the Appellants: Sri Ponnam Ashok Goud , Assistant Solicitor General
of India

Counsel for the Respondents: Mr. K. Venkateswara rao 

:ORDER:   (Per Sri Justice GHULAM MOHAMMED)       

           This Writ Petition has been filed challenging the order dated
2.4.2009 passed by the Andhra Pradesh Administrative Tribunal, Hyderabad in
O.A.No. 312 of 2007, wherein and whereby the Tribunal disposed of the matter by
setting aside the order dated 27.10.2006 passed by the first respondent.
           2.  O.A.No. 312 of 2007 was filed under Section 19 of the Andhra
Pradesh Administrative Tribunal's Act 1985, seeking appointment of the son of
the deceased Group D Mazdoor working in Garrison Engineer, Air Force Academy,   
Hyderabad, who expired on account of suicide due to mental illness in the Mental
Hospital, Erragadda, leaving the widow, one son viz., applicant herein aged
about 17 years and one daughter aged about 11 years  at the time of his death.
It is stated that the applicant submitted an application on 31.12.2001 seeking
appointment of her son on compassionate grounds and the said application was 
processed by the respondents 2,3, and 5 and Board of Officers considered the
case of the applicant for appointment of her son on compassionate grounds and
finally approved for appointment against 5% direct recruitment quota for the
year 2003 and the same was forwarded to the 1st respondent, the Director General
(Pers) by the Chief Engineer, Southern Command, Pune (R-2).  But the first
respondent by his letter dated 27.10.2006 refused to take up the matter with the
Ministry of
Defence for obtaining necessary sanction on the ground that it is contrary to
the policy guidelines in view of the abnormal delay.
            3. The Tribunal after careful examination of the facts held as
under:

"Hence, the impugned order is liable to be set aside and the respondents 1,2,3
and 5 are directed to forward the entire file relating to the compassionate
appointment for the son of the applicant to the 4th respondent for consideration
to provide appointment by condoning the delay within two months from the date of
receipt of a copy of this order and 4th respondent is directed to consider the
application of the applicant keeping in mind the relevant provisions of the
scheme for Compassionate Appointment referred to supra in this order and the
recommendations of Board of Officers, within two months after receiving the file
from the other respondents"

           4. The learned counsel appearing for the petitioners contended that
the deceased died on 18.1.1996 and the family members of the deceased  were not 
vigilant and they ought to have made an application so as to seek immediate
relief and instead of doing so they approached the Tribunal and the Tribunal
ought not to have undertaken the exercise of condoning the delay.
            5. On the other hand, the learned counsel appearing for the
respondent vehemently contended that the respondent is not aware of the scheme 
and it is the duty of the authority to inform the grief family regarding the
said scheme so as to take necessary steps but that was not done therefore, the
respondent did not send any application within the time stipulated.
             6. We have heard the rival contentions advanced by both the counsel
and perused the material made available on record.
              7.  Now the point that arises for consideration is as to whether
the Tribunal has committed any jurisdictional error or exceeded its limit.
              8.  As seen from the record, there is a scheme framed by the
Government with regard to compassionate appointment.  It is no doubt true that
the deceased died leaving behind widow and her children and at the time of
death, the son of the deceased was aged about 17 years.  It is also no doubt
true that because of her illiteracy, she has not taken any steps seeking
compassionate appointment of her son by making an application to the
authorities.  But it is the bounden duty of the authorities to act fairly and
honestly so as to provide benefits to the deceased children.  It is also noticed
that as per Para 12 (b) of the Scheme the Welfare Officer in each
Ministry/Department/Office should meet the members of the family of the
Government Servant in question immediately after the death to advise and assist
them in getting appointment on compassionate grounds and the applicant should be 
called in person at the very first stage and advised in person about the
requirements and formalities to be completed by them.   But that has not
happened in the present case.  The Scheme is provided to safe guard the interest
of the bereaved family.  In this case the respondent was deprived of benefit
because of delay in submitting the representation.    We have also noticed that
the Tribunal straight away directed the respondents 1,2,3 and 5 to forward the
entire file relating to the compassionate appointment of the son of the
applicant to the 4th respondent for consideration to provide appointment by
condoning the delay within two months.  The Tribunal exceeded its limit by so
directing the respondents.  The Tribunal ought not to have under taken the
exercise of condoning the delay and should have remitted back the matter so as
to enable the department to process the application of the applicant-respondent
and to forward the same for considering the request relating to compassionate
appointment of her son.
                9.  In the above facts and circumstances of the case, the order
passed by the Tribunal is modified directing the petitioners to forward the
papers of the respondent-applicant to the Ministry of Defence so as to enable it
to examine and consider the case of the respondent-applicant for appointment of
her son on compassionate grounds, including the aspect of delay, in the light of
the scheme framed by the Government, as the petitioners did not act as per para
12(b) of the Scheme framed by the Government, within a period of two months from
the date of receipt of a copy of this order.
               10.  With the above observation, the Writ Petition is disposed
of.  There shall be no order as to costs.
.

RIGHT TO INFORMATION ACT - QUALIFICATION CERTIFICATES OF CANDIDATES NOT COME

posted 28 Feb 2011 04:40 by murali mohan Mandagaddi




Oil and Natural Gas Corporation Limited (hereinafter referred to as 'ONGC')
issued advertisement dated 03.01.2008 inviting applications for appointment to
the post of 'Field Officer'.  The 1st petitioner and several others applied for
the said post.  In the selection, 285 candidates were selected and appointed,
whereas the 1st petitioner was not selected.  The 1st petitioner and 16 others
filed W.P.No.17355 of 2008 before this Court challenging the selection.


The 2nd petitioner is not able to state as to how the copies of qualification
certificates of the selected candidates have any characteristics of public
activity or partake public interest.




THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY          
W.P.No.443 of 2010  

20-01-2010 

Kunche Durga Prasad and another  

The Public Information Officer, Office of Chief Manager (HR), Oil & Natural Gas
Corporation Limited, Rajahmundry Asset, Godavari Bhavan, Base Complex,   
Rajahmundry -6 and others 

Counsel for Petitioner: Sri D.Ramalinga Swamy 

Counsel for Respondents:  Sri Ponnan Ashok Goud (Asst Solicitor General) 

:ORDER:  

Oil and Natural Gas Corporation Limited (hereinafter referred to as 'ONGC')
issued advertisement dated 03.01.2008 inviting applications for appointment to
the post of 'Field Officer'.  The 1st petitioner and several others applied for
the said post.  In the selection, 285 candidates were selected and appointed,
whereas the 1st petitioner was not selected.  The 1st petitioner and 16 others
filed W.P.No.17355 of 2008 before this Court challenging the selection.

The 2nd petitioner is a practicing advocate.  On behalf of the 1st petitioner he
filed an application under the Right to Information Act, 2005 (hereinafter
referred to as 'the Act'), before the 1st respondent seeking information on
three aspects namely, (1) the number of SC candidates selected; (2) the name of
the authority who selected the candidates; and (3) the date of issue of posting
orders to 285 candidates and their dates of joining.  He has also made a request
to furnish copies of the qualification certificates submitted by the selected
candidates.  Through letter dated 13.02.2009, the 1st respondent furnished
information on the three aspects referred to above.  So far as furnishing of
copies of qualification certificates is concerned, he took the view that it is
exempted under Section 8(1)(j) of the Act.  Aggrieved thereby, the petitioners
filed an appeal before the Central Information Commission - the 3rd respondent
who passed an order dated 21.05.2009 upholding the stand taken by the 1st
respondent.  Hence, the writ petition.
Sri D. Ramalinga Swamy, learned counsel appearing for the petitioners, submits
that the 1st respondent was under an obligation to furnish copies of the
qualification certificates furnished by the selected candidates.  He contends
that the certificates referred to above do not fall within the ambit of Section
8(1)(j) of the Act and that there was no justification for the respondents in
not acceding to the request of the petitioners.

The learned Assistant Solicitor General, on the other hand, submits that the
application was submitted by the 2nd petitioner and, so far as he is concerned,
the certificates of qualifications, pertaining to the selected candidates, do
not have traces of public activity and interest, and that furnishing of the same
would certainly invade the privacy of the concerned individuals.

The 1st petitioner was not selected as 'Field Officer'.  As properly advised,
himself and 16 other aggrieved persons filed W.P.No.17355 of 2008 challenging
the action of ONGC in not selecting them and the same is still pending.

Neither the 1st petitioner nor any other unsuccessful applicants have filed
application before the 1st respondent pointing out any grievance.  The 2nd
respondent, who is an advocate, filed the application seeking information as
referred to above.  The 1st respondent furnished information on 13.02.2009
wherein it was mentioned that 73 SC candidates were selected; not an individual
officer but a committee has selected the candidates; and a list indicating the
particulars of posting orders of all the 284 candidates was furnished.  So far
as the request to furnish the copies of qualification certificates submitted by
the selected candidates is concerned, the 1st respondent took the view that such
an information is exempted under Section 8(1)(j) of the Act.  The 2nd petitioner
filed an appeal under Section 19 of the Act before the 3rd respondent.  The
latter upheld the view taken by the 1st respondent.  Therefore, it needs to be
seen as to whether the information sought for by the 2nd petitioner i.e.
furnishing copies of the qualification certificates of the selected candidates
is not exempted under Section 8(1)(j) of the Act.
The said provision reads as under:
8. Exemption from disclosure of information:-- (1) Notwithstanding anything
contained in this Act, there shall be no obligation to give any citizen,-
........
(j) information which relates to personal information the disclosure of which
has no relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a
State Legislature shall not be denied to any person.


From a perusal of the above, it is evident that the exemption gets attracted
under two circumstances namely, (a) if the information is personal in nature and
has no relationship to any public activity or interest, and (b) furnishing of
the same would cause unwarranted invasion of privacy of an individual.  These
exemptions are, however, subject to the opinion that may be formed by the
Central or State Public Information Officer or the appellate authority that the
larger public interest justifies the disclosure of such information.

It is not out of place to mention that Parliament was very much aware of the
necessity to strike a decent balance between making the information available to
the citizenry, to promote public interest and efficiency, on the one hand, and,
preservation of confidentiality of sensitive information, on the other hand.
The statement of objectives of the Act emphasizes the need to harmonize these
two conflicting interests.

The right to information is treated as a facet of the fundamental rights
guaranteed under Articles 19 and 21 of the Constitution of India.  That,
however, would be in respect of the information which relates to the functioning
of the Government and public activity.  The information which relates to an
individual cannot be compared with, or equated to, the one of public activity.
On the other hand, disclosure of the information in relation to an individual,
even where it is available with the Government, may amount to invasion of his
privacy or right to life which in turn is also referable to Article 21 of the
Constitution of India.  It is also possible to treat the privilege of an
individual not to be compelled to part with any information available with him,
as an essential part of the Article 19(1)(a) of the Constitution of India.  Even
while exercising his right of freedom of speech and expression, an individual
can insist that any information relating to him cannot be furnished to others
unless it is in the realm of public activity or is required to be furnished
under any law, for the time being in force.

The 2nd petitioner is not able to state as to how the copies of qualification
certificates of the selected candidates have any characteristics of public
activity or partake public interest.  The aggrieved parties including the 1st
petitioner have already approached this Court by filing W.P.No.17355 of 2008.
Such of the selected candidates who are impleaded in that writ petition would
certainly have to defend themselves.  Any direction to the respondents herein to
furnish the testimonials of the selected candidates to the petitioners would
have its own impact upon the pleadings or the stands which the parties to the
pending proceedings may take.  It may appear to be enterprising or tempting for
any one to have access to every possible information for an individual whether
it relates to an individual or not.  The freedom of an individual to have access
to the information cannot be projected to such an extent as to invade the rights
of others.  Further, Section 6(2) of the Act cannot be read in isolation, nor
can be interpreted to mean that an applicant can seek every information relating
to any one.  Just as he cannot be compelled to divulge the purpose for which he
needs the information, he must respect the right of the other man to keep the
facts relating to him, close to his chest, unless compelled by law to disclose
the same.  It is relevant to mention that even where an individual is placed
under obligation to speak, the law can only draw adverse inference from his
failure or refused to speak but cannot go further to invade his privacy or
private life.

The learned counsel for the petitioners submits that the view taken by the
respondents conflicts with the very spirit of Section 6(2) of the Act.  This
contention cannot be accepted for the simple reason that Section 8 of the Act,
on one hand, and the Section 6 of the Act, on the other hand, operate in
different and distinct fields.  Though Section 6(2) of the Act enables every
individual to seek information without disclosing the purpose, the information
that can be furnished to him is subject to the restrictions placed under Section
8 of the Act.  Therefore, no exception can be taken to the impugned orders.

Hence, the writ petition is dismissed.  There shall be no order as to costs.
.

CONDONE THE DELAY IS A INHERENT POWER OF A COURT IF NOT PROVIDED SPECIFICALLY.

posted 28 Feb 2011 04:29 by murali mohan Mandagaddi

 Every Court has got inherent powers and the inherent
powers can as well be exercised in a case where there is no provision,
particularly, in a case of this nature where substantial amounts are involved on
technical grounds, and hence, the case of the petitioner cannot be thrown out
saying that the application is not maintainable as the Court is not empowered to
condone the delay, and in which event, the persons like the petitioner will
suffer irreparable loss. 

The petitioner-industry is an establishment covered under the provisions of the
Employees' Provident Fund and Miscellaneous Act, 1952.  According to the 
petitioner, as the contributions and administrative charges etc. of its
employees have not been remitted for the period from April 1995 to June 2000, an
assessment order, dated 25-05-2001, was passed by the 2nd respondent-Assistant  
Provident Fund Commissioner, Hyderabad, fixing the due amount at Rs.5,19,381/- 
and directed the petitioner to pay the said amount within a period of ten days.
However, as the petitioner did not pay the same, the recovery proceedings have
been initiated by the 2nd respondent on 07-01-2002.  Questioning the assessment
order and the recovery proceedings, the petitioner approached the appellate
authority i.e. 1st respondent-Employees' Provident Fund Appellate Tribunal, New
Delhi, and filed an appeal in A.T.A.No.494 (1) of 2001.  The 1st respondent-
Tribunal dismissed the said appeal on 12-09-2008 on the ground that the
petitioner was absent and was not evincing any interest to proceed with the
matter.   Thereafter, the petitioner filed an application for restoration of the
appeal as provided for under Rule 15 (2) of the Employees Provident Fund
Tribunal (Procedure) Rules, 1997 (for short 'Rules, 1997). However, the same was
dismissed by the 1st respondent on the ground that the said restoration
application is to be filed within a period of 30 days, but the same was filed on
27-01-2009 i.e. after lapse of more than 30 days.  As against the said order,
the petitioner approached this Court and filed the present writ petition.



THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA            
Writ Petition No.458 of 2010

20-01-2010 

M/s.Mubarak Industries 

The Employees' Provident Fund Appellate Tribunal, New Delhi and another.

Counsel for Appellant: Sri K.Sudershan.

Counsel for Respondent: Standing Counsel for EPF Tribunal, New Delhi.

:ORDER:  

The petitioner-industry is an establishment covered under the provisions of the
Employees' Provident Fund and Miscellaneous Act, 1952.  According to the 
petitioner, as the contributions and administrative charges etc. of its
employees have not been remitted for the period from April 1995 to June 2000, an
assessment order, dated 25-05-2001, was passed by the 2nd respondent-Assistant  
Provident Fund Commissioner, Hyderabad, fixing the due amount at Rs.5,19,381/- 
and directed the petitioner to pay the said amount within a period of ten days.
However, as the petitioner did not pay the same, the recovery proceedings have
been initiated by the 2nd respondent on 07-01-2002.  Questioning the assessment
order and the recovery proceedings, the petitioner approached the appellate
authority i.e. 1st respondent-Employees' Provident Fund Appellate Tribunal, New
Delhi, and filed an appeal in A.T.A.No.494 (1) of 2001.  The 1st respondent-
Tribunal dismissed the said appeal on 12-09-2008 on the ground that the
petitioner was absent and was not evincing any interest to proceed with the
matter.   Thereafter, the petitioner filed an application for restoration of the
appeal as provided for under Rule 15 (2) of the Employees Provident Fund
Tribunal (Procedure) Rules, 1997 (for short 'Rules, 1997). However, the same was
dismissed by the 1st respondent on the ground that the said restoration
application is to be filed within a period of 30 days, but the same was filed on
27-01-2009 i.e. after lapse of more than 30 days.  As against the said order,
the petitioner approached this Court and filed the present writ petition.
2. Heard the learned counsel for the petitioner and the learned standing counsel
appearing for the respondents and perused the record.
3. It is true that Rule 15 (2) of the Rules, 1997 provides for filing of an
application for recalling the order of dismissal for default within 30 days and
there is no provision provided for filing of an appeal against the order of
dismissal along with a petition to condone the delay.  Simply because such a
provision is not there, it cannot be said that the Court is powerless to allow
such an application.  Every Court has got inherent powers and the inherent
powers can as well be exercised in a case where there is no provision,
particularly, in a case of this nature where substantial amounts are involved on
technical grounds, and hence, the case of the petitioner cannot be thrown out
saying that the application is not maintainable as the Court is not empowered to
condone the delay, and in which event, the persons like the petitioner will
suffer irreparable loss.  Of course, while exercising the said discretion, the
Court or a Tribunal is always at liberty to allow the application by imposing
certain conditions such as payment of costs etc.
4. In the light of the above discussion, this Court is of the view that the
petitioner may be given an opportunity to advance its case before the 1st
respondent-Tribunal on merits.
5. Accordingly, the writ petition is allowed, the impugned order dated 19-11-
2009 passed by the 1st respondent-Tribunal is set aside, and accordingly, the
restoration petition filed in A.T.A.No.494 (1) of 2001, is ordered, however, on
a condition of the petitioner depositing 50% of the amount in demand, within a
period of eight weeks from today.  It is made clear that in the event of its
failure to comply with the above direction, the original order passed in
A.T.A.No.494 (1) of 2001, dated 19-11-2009, shall automatically come into
operation.  There shall be no order as to costs.
.

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SRI MOOLA RAMO VIJAYATHE

ADVOCATEMMMOHAN