Jammu & Kashmir High Court
Irshad Ahmed Wani vs State Th.Chief Engineer And Ors on 22 September, 2016
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 649/2003
MP No.1/2016
Date of Order: 22.09.2016
Irshad Ahmed Wani. Vs. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge.
Appearing Counsel:
For the Petitioner(s): Mr. R. K. S. Thakur, Advocate.
For the Respondent(s): Mr. Faraz Iqbal, DyAG.
i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes/No Digest/Journal-Net The writ petition is of the year 2003.
The petitioner was appointed on daily wage basis for watch and ward of PWD government Building at Banihal on 04.02.2001.
The petitioner was arrested by Local Police on July 1992 on the ground that he was involved in militancy relating activities. An FIR was lodged on 06.07,1992. The formal charge sheet was laid and the trial was conducted before the Presiding Officer Designated Court as TADA (P) Act, Jammu in File No. 8/Ch. The trial concluded in the petitioner's favour and the Criminal Court came to hold that charge against the petitioner that he is involved in militant activities was not proved beyond doubt and he was acquitted. According to the learned counsel for he petitioner, Criminal Court has observed that the complainant in this case was the person who was involved in militant activities.
Be that as it may, he made a request to the Department after his being acquitted by the Criminal Court, he could not continue his employment due to his arrest and the criminal proceedings. It appears that petitioner also have made request for reemployment while he was on bail. The request was finally considered and rejected by a communication dated 12.04.2002 by Under Secretary to Government Public Works Department addressed to The Chief Engineer PW(R&B) Department Jammu. Challenging this, the writ petition has been filed.
Learned counsel for the petitioner states that since he was wrongly incarcerated in criminal case and having the hon'ble acquittal, the authorities-respondents should have accorded consideration to his request for reemployment. He places reliance on a decision reported in 1999 KLJ 390 in case titled Sheer Ahmad Khan Versus State & ors. where a similarly placed daily rated worker was picked up by security forces and later on released on the ground that he was not involved in militant activities and he sought certain benefits and the department acceded to the request and his claim for reemployment and regularization was ordered by this Court. Relying on a decision of Punjab and Haryana High Court in a case titled Talwinder Singh versus State of Punjab and others where a probationer was dismissed on account of registration of an FIR and when he was subsequently acquitted, he got the benefit of reemployment; the counsel drawing analogy from these two judgments submits that a daily rated worker will be entitled to be considered for reemployment on being honorably acquitted by the Criminal Court.
Learned counsel for the respondents pleaded that the first case of Jammu and Kashmir High Court can be distinguished as in that the person was detained by the security forces and later on released on the ground that he was not involved in militant activities. There is no formal criminal charge pending against him and there were no criminal proceeding initiated which debarred the person from being reemployed. Whereas in the present case a regular FIR was lodged and a criminal case was initiated. Consequent to that he could not be reemployed.
The decision not to grant further employment was on the ground that a daily rated worker is temporary in nature and such person has no right to substantial post and therefore, he cannot, as a matter of right, claim reemployment. Furthermore, there is an observation in the impugned order that the employment came to an end from the date of arrest.
The petitioner though arrested on registration of an FIR and a criminal case was conducted, he was acquitted. In view of his arrest he could not continue as daily rated worker. That fact is not in dispute. In view of the findings in the Criminal Court, the petitioner pleads innocence and prays that he should be allowed to rejoin as daily rated worker.
It is one thing to say that temporary employees working on daily wage basis have no right to claim reemployment as a matter of right. But the authorities are at liberty to consider the reemployment if he is otherwise found fit.
The issue is that but for the arrest and the criminal case, he would have continued as daily rated worker. That has to be considered by the authorities in the light of the Criminal Court Judgment. The discretion is that of the authority to decide as to whether they are willing to reemploy the petitioner on daily wage basis. The discretion has to be exercised considering the nature of employment, the need of the Department concerned and in a manner which is not arbitrary.
The fact that he was acquitted by the Criminal Court and the observation of the Criminal Court apparently has not been considered by the authorities. Therefore, in all fairness it would be appropriate to direct the authorities concerned to revisit the claim of the petitioner.
As a result, the impugned proceeding is set aside and the matter is remitted back to the authorities concerned to accord reconsideration to the petitioner's claim.
The writ petition is disposed of accordingly.
( Ramalingam Sudhakar) Judge Jammu:
Sunita.
22.09.2016 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 1997/2016 MP No. 1/2016 Date of order:-22/09/2016 Javed Iqbal Mirza. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : M/s. Rohit Verma and J.A.Mirza, Advocates. For the respondent(s) : Mr. Ehsan Mirza, Dy.A.G. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
It is a case of transfer. Petitioner claims to be a Patwari working in Patwar Halqa Dodasan Bala, Thanamandi and by way of impugned general transfer order of various Patwaries dated 10th September, 2016, from one or the other places, petitioner, whose name find place at S. No. 42, has been transferred from Patwar Halqa Dodasan Bala (Thanamandi) to PH Garan (Kalakote) vice Abdul Gafoor.
Grievance of the petitioner is that in terms of Circular No. FC/Cord/Misc/124/2011 dated 02.09.2011, during Harvest season, there should be no transfer. Post writ petition, the petitioner has filed a representation dated 20th September, before the respondents. That is not forming part of the writ petition.
Heard Mr. Ehsan Mirza, learned State counsel. He submits that it is a case of general transfer of various Patwaries and hence need not be interfered.
Admit. Mr. Ehsan Mirza, learned Dy. A. G accepts notice on behalf of respondents.
By consent, writ petition is taken up for final disposal.
Learned counsel appearing for the State-respondent submits that the representation of the petitioner will be considered appropriately keeping in mind the Circular and the other related parameters.
The Full Bench decision taken in the Judgment in case titled "Syed Hilal Ahamd & ors. Vs. State of J&K and ors." decided on 31.08.2015 reported in 2015 (3) JKJ 398 (HC), has held that the transfer is an exigency of service and, this Court does not interfere in the administrative orders of the transfer unless it is based on malafide consideration or otherwise contrary to the statutory provisions.
In this view of the matter, this Court is, however, inclined to direct respondent No. 3 to consider the petitioner's representation in relation to the grievance stated therein in light of the Circular and the instructions referred to hereinabove and the need to transfer in the interest of administration.
It is desirable that respondent No. 3 shall accord consideration to the claim of the petitioner, as projected in the representation, expeditiously preferably within a period of four weeks from the date of receipt of the copy of this order. Pending consideration, the discretion is left with the authority to consider keeping the order of transfer in abeyance.
Writ petition is disposed of accordingly.
(Ramalingam Sudhakar) Judge Jammu 22.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2023/2016 MP No. 1/2016 Date of order:-22/09/2016 Mohinder LaL. Vs. Union of India and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. N.D.Qazi, Advocate. For the respondent(s) : Mrs. Sindhu Sharma, ASGI. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
The petitioner was initially appointed as Constable (GD) in SSB in the year 1990 and presently working as Assistant Sub Inspector. He was granted first level up-gradation of Modified Assured Career Progression (MACP) but the second up-gradation was denied by the authority on 29.07.2015.
Be that as it may, the present petition is in the nature of mandamus commanding the respondents to grant second financial up-gradation on promotional hierarchy against the post of Sub-Inspector, as there is no post of Assistant Sub Inspector (GD) existed in CAPFs/SSB and, therefore, he is not entitled to the pay scale of Sub Inspector in the same department. Such request is based on the decision of Delhi High Court rendered in batch of petitions, leading case Kishna Nand Pandey vs. Union of India and ors, WP (C) No. 7445/2014.
In this regard, petitioner has made a representation thereby seeking grant of second financial up-gradation. According to the petitioner, copy of judgment is enclosed with the representation.
Admit. Mrs. Sindhu Sharma, learned Assistant Solicitor General of India appearing on behalf of respondents.
By consent, writ petition is taken up for final disposal.
It is desirable that respondent No. 3 shall accord consideration to the claim of the petitioner, as projected in the representation, expeditiously preferably within a period of four weeks from the date of receipt of the copy of this order. Pending consideration, the discretion is left with the authority to consider keeping the order of transfer in abeyance.
Writ petition is disposed of accordingly.
(Ramalingam Sudhakar) Judge Jammu 22.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2013/2016 MP No. 1/2016 Date of order:-22/09/2016 Mansoor Ahmed Dolwal. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr.F.S.Butt, Advocate. For the respondent(s) : Mr. Ehsan Mirza, Dy.A.G vice MR. Rohit Kapoor, AAG. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
It is a case of transfer. This Court normally does not interfere with the transfer cases, unless based on malafide consideration or otherwise contrary to the statutory provisions. However, the relief sought for in the writ petition is in the nature of mandamus commanding respondent No. 2 to decide the representation of the petitioner dated 28.05.2016 for review of his transfer order dated 25.05.2016.
The petitioner, who is working as Senior Assistant in the Health and Family Welfare Department, has been transferred from CMO Office Kishtwar to PHC Dachhan. The order of transfer is passed by respondent No.2 and petitioner is aggrieved thereby.
2Admit. Mr. Ehsan Mirza, learned Dy. A. G accepts notice vice Mr. Rohit Kapoor, AAG, on behalf of the respondents.
By consent, writ petition is taken up for final disposal.
Heard Mr. Ehsan Mirza, learned Deputy Advocate General vice Mr. Rohit Kapoor, Additional Advocate General. He stated that the representation of the petitioner will be duly considered on its own merits as may be directed by this Court.
Considering the limited scope of relief as sought for by the petitioner, respondent No. 2 is directed to accord consideration to the representation of the petitioner expeditiously preferably within a period of four weeks from the date of receipt of the copy of this order and dispose of the same on its own merits.
Writ petition is disposed of accordingly.
(Ramalingam Sudhakar) Judge Jammu 22.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2022/2016 MP No. 1/2016 Date of order:-22/09/2016 Jagjit Singh. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr.C.M.Koul, Advocate. For the respondent(s) : Mr. Ravinder Kumar Gupta, AAG. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
It is a case of transfer. Petitioner, who is a trained Associate NCC Officer, has been transferred to non-NCC Unit vide order No. 413-DSEJ of 2016 dated 28.07.2016. Therefore, he has challenged the said transfer order.
This Court has consistently held that the transfer is the exigency of service and it can be interfered only if it is passed by an incompetent authority or it is based on malafide consideration or otherwise contrary to the statutory provisions.
Similar cases of transfer of NCC Officers to non-NCC Unit have been challenged before this Court unsuccessfully in cases, Ramesh Kumari v. State and ors, reported as 2008 (1) JKJ (HC) 66, Pardeep Singh v. State and ors reported as 2014 (2) JKJ (HC) 49 and Jyoti Malhotra v. State and ors reported as 2015 (4) JKJ (HC) 174.
Admit. Mr. Ravinder Kumar Gupta, learned A. A. G accepts notice on behalf of the respondents.
2By consent, writ petition is taken up for final disposal.
Heard Mr. Ravinder Kumar Gupta, learned Additional Advocate General appearing for the respondents. He strongly opposed the relief sought for by the petitioner.
While declining to grant the relief as prayed but considering the recommendations made by the Principal, Government Higher Secondary School, Bhour Camp and the Commanding Officer, 1 JAK Naval Unit NCC, NCC House Gogji Bagh, Srinagar (Annexures-E & F to the writ petition), the Authority may accord consideration to the request of the petitioner on its own merits.
It is made clear that this Court has not expressed any opinion on the merits of the petitioner's claim for retention. The petitioner's representation to be considered either way preferably within a period of four weeks from the date of receipt of copy of this order.
Writ petition is disposed of accordingly.
(Ramalingam Sudhakar) Judge Jammu 22.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2012/2016 MP No. 1/2016 Date of order:-22/09/2016 Mohd Ashraf Shah. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. N.D.Qazi, Advocate. For the respondent(s) : Mr. Ehsan Mirza, Dy.A.G vice Mr. Ranjit Singh Jamwal, DDy.A.G. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
Short issue that arises for consideration is that the petitioner, who is working as Fitter in the Public Health Engineering Department, seeks the benefit of SRO 380 of 1989 dated 29.09.1989. In this regard he has given a representation dated 10.12.2015 (Annexure-F to the writ petition).
Learned counsel for the petitioner prays for a limited relief as set out in the said representation.
Admit. Mr. Ehsan Mirza, learned Dy. A. G accepts notice vice Mr. Ranjit Singh Jamwal on behalf of respondents.
By consent, writ petition is taken up for final disposal.
Heard Mr. Ehsan Mirza, learned Deputy Advocate General appearing vice Mr. Ranjit Singh, Jamwal, Deputy Advocate General on behalf of respondents. He states that if the claim of the petitioner is in order and the SRO 2 under rules permit such a relief, the authority will accord consideration as may be directed by this Court.
In view of the nature of the relief sought for and without going into the merits of the case, respondent Nos. 1 & 2 to consider the representation of the petitioner referred to hereinabove in terms of SRO 380 of 1989 dated 29.09.1989, as may be applicable to the case of the petitioner and thereafter decide the claim of the petitioner on its own merits expeditiously preferably within a period of four weeks from the date of receipt of copy of this order.
Writ petition is disposed of accordingly.
(Ramalingam Sudhakar) Judge
Jammu
22.09.2016
Tilak, Secy.
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
WPPIL No.4/2013
MP Nos.4/2015, 306/2014, 38/2015, 48/2015, 815/2013, 92/2014, 247/2014, 281/2014, 225/2014, 331/2014, 333/2014, 334/3014, 62/2015, 63/2015, 772/2013, 1/2015, 1026/2014, 3/2015, 1/2016, 2/2016, 3/2016 c/w OWP No. 1031/2009 MP No. 1333/2009 OWP No. 1332/2015 MP No. 1/2015 Date of Order: 30.08.2016 Welfare Association of Shareholders v. State and ors.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B. S. Walia, Judge Appearing counsel:
For the petitioner(s) : Mr. O.P.Thakur, Advocate with Mr. R.K.S.Thakur, Adv.
For the Respondent(s): Mr. W.S.Nargal, AAG.
Mr. D.C.Raina, Sr. Advocate with Mr. F.A.Natnoo, Adv.
Mr. M.K.Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Adv.
Mr. B.S. Bali, Advocate.
Mr. S.K.Shukla, Advocate.
Registrar Judicial is directed to provide a list of retired District & Sessions Judges, who could be considered for appointment as liquidator in place of Sh. Ashok Kumar Shan, who has been discharged from his service as liquidator at his own request.
`
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
30.08.2016
Tilak, Secy
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
WPPIL No.4/2013
MP Nos.4/2015, 306/2014, 38/2015, 48/2015, 815/2013, 92/2014, 247/2014, 281/2014, 225/2014, 331/2014, 333/2014, 334/3014, 62/2015, 63/2015, 772/2013, 1/2015, 1026/2014, 3/2015, 1/2016, 2/2016, 3/2016 c/w OWP No. 1031/2009 MP No. 1333/2009 OWP No. 1332/2015 MP No. 1/2015 Date of Order: 30.08.2016 Welfare Association of Shareholders v. State and ors.
& connected matters.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B. S. Walia, Judge Appearing counsel:
For the petitioner(s) : Mr. O.P.Thakur, Advocate with Mr. R.K.S.Thakur, Adv.
For the Respondent(s): Mr. W.S.Nargal, AAG.
Mr. D.C.Raina, Sr. Advocate with Mr. F.A.Natnoo, Adv.
Mr. M.K.Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Adv.
Mr. B.S. Bali, Advocate.
Mr. S.K.Shukla, Advocate.
It is stated that pursuant to order dated 02.08.2016, a report has been filed by the Senior Superintendent of Police, Jammu indicating the steps taken and the difficulty in proceeding with the investigation. It is stated that the report has been filed yesterday but it is not on record. Nevertheless we have heard learned counsel for the State-respondents, whose submission is that Senior Superintendent of Police and the Investigating Officer are unable to proceed in the matter as the Senior Superintendent of Police Crime Branch is also investigating the issue parallely and therefore, as in between the two agencies, there is difficulty in dealing with the issue. In this view of the matter, we direct the Director General of Police, J&K to go into the issue and designate an appropriate officer to proceed with the investigation. An action taken report to be submitted on the next hearing date. List on 27th September, 2016.-2-
A copy of this order be supplied to learned counsel for the respondents today itself under the seal and signatures of the Bench Secretary.
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
30.08.2016
Tilak, Secy
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
WPPIL No. 22/2014
MP Nos. 79/2015, 169/2014, 266/2014, 1/2016 and 4/2015 Date of Order: 30.08.2016 Prof. S.K.Bhalla. v. State and ors.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B. S. Walia, Judge Appearing counsel:
For the petitioner(s) : Mr. S.S.Ahmed, Adv. For the Respondent(s): Mr. S.S.Nanda, Sr. AAG. Mr. Sheema Shekhar, AAG.
List on 31st August, 2016 in Supplementary cause list, as requested by learned counsel appearing for the State-respondents.
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
30.08.2016
Tilak, Secy
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
WPPIL No. 292/2003
MP Nos. 47/2014, 10/2015, 12/2015, 15/2015, 20/2015, 21/2015, 7/2015, 6/2015, 1/2015, 11/2015, 17/2015, 73/2015, 8/2015, 21/2015, 22/2015, 23/2015, 24/2015, 25/2015, 9/2015, 1/2016, 2/2016, 3/2016, 4/2016, 5/2016, 6/2016, 7/2016, 8/2016, 9/2016, 10/2016, 11/2016, 12/2016, 13/2016, 14/2016, 15/2016, 2/2010, 16/2016 & 17/2016 Date of Order: 30.08.2016 Sunil Koul v. State and ors.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B. S. Walia, Judge Appearing counsel:
For the petitioner(s) : Mr. Harbans Lal, Receiver.
Mr. B.S.Salathia, Sr. Advocate with Ms. Meenakshi Salathia, Advocate.
Mr. U.K.Jalali, Sr. Advocate with Mr. Anuj Sawhney, Advocate.
Mr. Pranav Kohli, Advocate.
Mr. Ashok Sharma, Advocate.
For the Respondent(s): Mrs. Seema Shekhar, AAG. Mr. R.S.Jamwal, Advocate.
Registrar of Companies, who is also official liquidator, is directed to be present on the next date of hearing. It is stated that some of the miscellaneous petitions have not been listed. Registry to list all the connected miscellaneous petitions on the next date of hearing. List on 05.09.2016.
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
30.08.2016
Tilak, Secy
(CONFIDENDIAL)
To
Ms. Nuzhat Parveen,
Secretary,
High Court of Jammu and Kashmir,
Srinagar.
From:
Tilak Raj Sharma,
Secretary to,
Hon'ble Mr. Justice Ramalingam Sudhakar,
Judge,
High Court of Jammu and Kashmir,
Jammu.
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
LPASW No.117/2014
Date of Order: 31.08.2016
Darshana Devi v. State and ors.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For the appellant(s) : None.
For the Respondent(s) : Mr. Ranjit Singh, Dy. AG for R-1 & 2.
Mr. Surinder Singh, Advocate for R-3.
None appears for the appellant.
List for dismissal on 01.09.2016.
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
31.08.2016
Tilak, Secy
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
LPASW No.122/2013
MP No.150/2013
Date of Order: 31.08.2016
Vikas Kant v. State and ors.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For the appellant(s) : Mr. P.N.Raina, Sr. Advocate with
Ms. Deeksha Handoo, Advocate.
For the Respondent(s) : Mr. Ranjit Singh, Dy. AG vice Mr. W.S.Nargal, AAG.
Counsel for the appellant wants to argue the matter, however, respondents' counsel, Mr. W.S.Nargal is stated to be unwell, consequently a request for adjournment has been made. Adjourned.
List in week commencing 5th September, 2016 in the regular cause list.
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
31.08.2016
Tilak, Secy
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
LCROS No.1/2013
c/w
LCROS No.2/2013
LPASW No.6/2013, Mp No.6/2013
LPASW No.D-28/2013, MP No.D-29/2013
Date of Order: 31.08.2016
Dr. Narinder Singh v. State and ors.
Alongwith connected matters.
Coram:
Hon'ble Mr. Justice, Ramalingam Sudhakar, Judge
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For the appellant(s) : Mr. S.K.Shukla, Advocate in LCROS No.1/2013
Mr. Irfan Khan, Advocate in LCROS No.2/2013.
For the Respondent(s) : Mr. D.C.Raina, Sr. Advocate with Mr. F.A.Natnoo, Advocate.
Mr. P.N.Raina, Sr. Advocate with Ms. Deeksha Handoo, Advocate.
Cross Objections (LCROS No.2/2013) has been filed in LPASW No.6/2013. Mr. P.N.Raina, learned senior counsel appearing for the appellant raised a preliminary objection that cross objection is not maintainable in light of the decision of Full Bench of this Court rendered in case Assessing Authority and another v. Jammu Metal Rolling Mills [2010 (7) JKJ 295(HC)]. On the contrary, Mr. Irfan Khan stated that High Court Rules as amended provides for filing cross objections and they would like to address the Court on this issue. Similar plea is taken by Mr. S.K.Shukla, who has filed cross objections (LCROS No.1/2013) in LPASW No.D-28/2013. Mr. D.C.Raina, learned senior counsel appearing for the appeal in LPASW No.D-28/2013 has personal inconvenience, -2- therefore, some time is sought for addressing the Court.
At the request of counsels for the parties, adjourned.
List in week commencing 3rd October, 2016.
(B. S. Walia) (Ramalingam Sudhakar)
Judge Judge
Jammu
31.08.2016
Tilak, Secy
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 2039/2016
MP No. 1/2016
Date of order:-23/09/2016
Suram Chand and ors. Vs. State and ors.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Appearing counsel:
For the Petitioner (s) : Mr. Abhinav Sharma, Advocate.
For the respondent(s) :
(a) Whether approved for reporting in
Digest/Law Journal-Net : Yes/No
(b) Whether approved for reporting in
Press/Media : Yes/No
0
Admit.
Issue notice to the respondents returnable within four weeks.
Requisites for service within one week.
List after the service is complete.
(Ramalingam Sudhakar) Judge
Jammu
23.09.2016
Tilak, Secy.
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 2038/2016
MP No. 1/2016
Date of order:-23/09/2016
Raman Deep Singh and Ors. Vs. State and ors.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
Appearing counsel:
For the Petitioner (s) : Mr. M.K.Raina, Advocate.
For the respondent(s) : Mr. Sanjeev Padha, GA.
(a) Whether approved for reporting in
Digest/Law Journal-Net : Yes/No
(b) Whether approved for reporting in
Press/Media : Yes/No
0
Admit.
Issue notice to the respondents. Mr. Sanjeev Padha, learned Government Advocate accepts notice on behalf of respondents. Mr. Padha seeks and is granted time to have instructions.
List in week commencing 17th October, 2016.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2037/2016 MP No. 1/2016 Caveat No. 1584/2016 Date of order:-23/09/2016 Mohd Maroof. Vs. State of J&K and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : None. For the respondent(s) : (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0 None appears for the petitioner. Adjourned. List in the next regular cause list. (Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU MP No. 1/2016 In SWP No. 3445/2014 MP No. 4655/2014 Date of order:-23/09/2016 Rabia Amin. Vs. JKSSRB and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. Ayjaz Lone, Advocate. For the respondent(s) : None. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0 List in 1st week of October, 2016, as requested. (Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2035/2016 MP No. 1/2016 Date of order:-23/09/2016 Balvinder Singh and ors. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. Abhinav Sharma, Advocate. For the respondent(s) : Mr. W.S.Nargal, AAG. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0 Admit. Issue notice to the respondents.
Mr. W.S.Nargal, learned Additional Advocate General accepts notice on behalf of respondents. Copy of the writ petition be supplied to Mr. Nargal by the petitioners. List on 7th October, 2016 for disposal.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 407/2009 MP No. 588/2009 Date of order:-23/09/2016 Oriental Insurance Co. Ltd. Vs. Dharminder Seghal and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Appellant (s) : Mr. Vishnu Gupta, Advocate. For the respondent(s) : (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
Appeal has been filed against an interim order passed by the Motor Accident Claims Tribunal, Kathua granting compensation of Rs.25,000/- on "no fault liability". Consequentially , final order has been passed by the Tribunal in File No. 90/CP dated 29.03.2014 wherein the Tribunal came to hold that Dharminder Seghal, as per facts on the FIR, was a gratuitous passenger and ultimately, the Tribunal granted the following relief.
"12. Thus in the light of foregoing discussion, these claim petitions are allowed. Petitioner Dharminder Sehgal is entitled to a compensation of Rs. 1, 50,000/- and the interest @ 6% per annum from the date of petition till the amount is realized, to be paid by the owner of the offending vehicle (respondent No. 2). Petitioner Puran Chand is entitled to a compensation of Rs. 1,05,000/- and the interest @ 6% from the date of petition till the 2 amount is realized, which amount shall be paid by the insurer/respondent No. 3."
Effectually, the result of which is that the claimant has to got the compensation from the owner of the vehicle.
In this view of the matter, the appeal is allowed. Insurance Company is entitled to take back the amount in deposit. Interim order passed by the Tribunal shall stand set aside.
Appeal is disposed of as above.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2044/2016 MP No. 1/2016 Date of order:-23/09/2016 Saroja Koul. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. S.K.Shukla, Advocate. For the respondent(s) : (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0 List on 27th September, 2016, as requested. (Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Contempt (SWP) No. 142/2015 In SWP No. 30/2015 Date of order:-23/09/2016 Dr. Gurmeet Kour. Vs. State and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. D.S.Chauhan, Advocate. For the respondent(s) : (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
The main writ petition has already been dismissed vide order dated 3rd February, 2016. Consequently, contempt stands closed.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 1833/2014 MP No. 2431/2014 & Contempt (SWP) No. 440/2014 Date of order:-23/09/2016 Mujtaba Ahmad Dev. v. State and ors. Mujtaba Ahmad Dev v. Mohd Iqbal Khandey and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. D.S.Chauhan, Advocate. For the respondent(s) : None. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
Prayer made in the writ petition, SWP No. 1833/2014 is identical to the relief as sought for in batch of writ petitions, SWP No. 2012/2014 titled Sonali Singh v. State Th. Edu Deptt. & Ors., and 40 other connected matters decided on 14.07.2016.
Learned counsel for the petitioner fairly stated that the issue stands covered by the decision of this Court and said decision squarely applies to the facts of the present case. Relevant paras 5 to 12 of judgment dated 14.07.2016 are reproduced below:-
"5. It is the case of respondents that they are not resorting to such a procedure of replacing contract teachers/lecturers by another set of contract teachers/lecturers. The engagement is need based. In any event, the lecturers on contract or engaged on academic arrangement cannot seek to restrain the government from engaging lecturers on contract engagement or 2 academic arrangement as they themselves are beneficiary of such procedure. This issue becomes academic because petitioners are appointed on academic arrangement.
6. On this issue also, Courts have taken a view to safeguard ousting of contract engagements only for the purpose of accommodating new incumbents on contract basis. In this regard, it will be useful to refer judgment of Hon'ble Supreme Court in case titled State of Haryana vs, Piara Singh and others reported as AIR 1991 SC 223 referring to the following observations:
".........In State of Haryana versus Piara Singh, 1992 (4) SC 118 of 152, this Court had held that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an adhoc or temporary appointments may be made in such situation, this Court held that efforts should always be made to replace such adhoc or temporary employee by regularly selected employees, as early as possible. Temporary employees also would get liberty to compete along with others for regular selection but if he does not get selected, he must give way to the regularly selected candidates. Appointment of the regularly selected candidates cannot be withheld or kept in abeyance for the sake of such an adhoc or temporary employee. Adhoc or temporary employee should not be replaced by another adhoc or temporary employee. He must be replaced only by regularly selected employees."
7.The said ratio will apply to the petitioners only if they are sought to be replaced by another set of teachers/lecturers on academic arrangement.
The relief of prohibiting the respondents from replacing/substituting the petitioners by transferring regularly recruited lecturers from one institution to another till the posts held by them are filed by the competent authority on 3 regular/substantive basis, has been dealt with by Hon'ble Supreme Court in case titled Dr. Kishore v. State of Maharashtra, reported as 1997 (1) 107: 1997 (3) SCC 209, wherein their Lordships observed as under:-
"It is contended by the learned counsel for the petitioner that since vacancies are existing the appointment of Dr. Solanki by transfer could not be used as a means to terminate the service of the petitioner. We fail to appreciate the contention. It is fairly agreed by the learned counsel that the petitioner has no right to the post and as soon as a duly selected candidate is posted in his place, he has to give place to the duly selected candidate. But his contention is that since Dr. Solanki was selected earlier to the order passed by the Tribunal and had been appointed on his transfer, it cannot be used as a means to terminate the services of the petitioner. His contention absolutely has no force. As soon as the duly selected candidate is posted, whether directly or by transfer, necessarily the petitioner has to give place to such a candidate. The petitions, therefore, do not merit interference".
Therefore, the said pleas no legal basis.
This Court hastens to hold that academic arrangement teachers/lecturers cannot seek to hold on to their post for ever. If they are found not to be up to the mark or efficient then their continuation will be a question mark. It is for the authorities to decide the best course of action in a non-arbitrary manner. If academic arrangement teachers/lecturers seek extension then they have to make a representation for considering the extension of service, which can be considered on its own merits.
As a result, prayer (A) is dismissed and (B) & ( C ) ordered as above.
All the above writ petitions stand disposed of in the aforesaid terms along with the connected MPs. Interim directions, if any, passed in these writ petitions shall stand vacated.
4At this juncture, Mr. Sharma, learned AAG, submits that in view of the final order passed in these writ petitions, the Contempt petitions filed by the learned counsel for the petitioners in some of the cases have become infructuous. Petitioner's counsel concedes as above. Consequently, the connected Contempt Petitions filed in the respective cases are closed and stand disposed of along with connected MPs, if any."
Accordingly, writ petition is disposed of in the above terms. Consequently, Contempt Petition stands closed.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 1551/2014 MP No. 2061/2014 & Contempt (SWP) No. D-257/2014 Date of order:-23/09/2016 Nabida Masood. Vs. Mohd Iqbal Khandey and ors. Nabida Masood. Vs. State of J&K and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Petitioner (s) : Mr. D.S.Chauhan, Advocate. For the respondent(s) : None. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
Writ petition abates in view of the statement made by learned counsel for the petitioner that the petitioner is no more.
Consequently, no order is required to be passed in the contempt petition, therefore, the same is closed.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 197/2009 Date of order:-23/09/2016 Raman Malhotra and ors. Vs. Union 0f India and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Appearing counsel: For the Appellant (s) : Mr. Kamal Gupta, Advocate. For the respondent(s) : Mrs. Sindhu Sharma, ASGI. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
The Appellants-claimants are on appeal challenging the award dated 30.01.2009 passed by the Motor Accidents Claims Tribunal, Jammu.
It is a case of fatal accident. Appellants-Claimants claimed compensation on account of death of deceased Reeta Rani Kakkar, who died in a road accident on 22.08.2005. The deceased was driving a Scooter and was hit by the Army vehicle. The finding of the Tribunal for rash and negligent driving of driver of the Army Vehicle and causing death of Reeta Rani Kakkar, is not under challenge.
The claimants are husband and two minor children, namely, Anjali Malhotra (Daughter) and Amit Malhotra (son), aged 17 and 15 respectively. At the time of accident, the deceased was 43 years old and was working as TSO in Bharat Sanchar Nigam Limited (BSNL) and was drawing Rs. 14,504/- (Exhibit EXPW/R), as per the certificate issued by the Senior Accounts Officer, BSNL.
2The Tribunal, however, fixed the income of the deceased at Rs. 6000/- per month and after deducting 1/3rd of the income by adopting multiplier 13 granted the following compensation along with interest at the rate of 7.5% per annum from the date of filing of claim petition:-
For loss of income -Rs.6,24,000/-
For funeral expenses. -Rs. 15,000/-
For loss of consortium. -Rs. 15,000/-
_________________
Total. -Rs. 6,54,000/-
___________________
The claimants are seeking enhancement of compensation by stating that income of the deceased has been wrongly fixed by the Tribunal, when even the income certificate has been produced on record and it is further pleaded that the multiplier adopted is also on lower side. No amount has been granted for loss of love and affection for two minor children and meager amount of Rs. 15000/- has been granted for loss of consortium to the husband. The reasoning given by the Tribunal to reduce the income from Rs.14,504/- to Rs. 6,000/- appears to be inappropriate because deductions should be only statutory deductions and not others. The major amount subscribed towards General provident Fund cannot be deducted while assessing the income. Therefore, the Tribunal fell into error by reducing the income. As far as the multiplier of 13 is concerned, as already decided and laid down by the Hon'ble Apex Court in case titled Sarla Verma and ors v. Delhi Transport Corporation & anr, reported as (2009) 6 SCC 121, the multiplier of 14 shall be appropriate in this case.3
Deducting 1/3rd towards the personal expenses of the deceased out of Rs. 14,504/-, ( Rs. 14,504 divided by 3 =Rs. 4834/-) the total loss of income to the dependents comes to Rs. 9,670/-(Rs.14.504-4834/-= Rs. 9,760/-) per month. Therefore the total pecuniary loss will be (Rs.9670 X 12 X14) =Rs. 16,24,560/-. Two minor children will be entitled to Rs. 30,000/- each for loss of love and affection. The husband will be entitled to Rs. 30,000/- on account of loss of consortium.
The award of the Tribunal is modified and the claimants are entitled to the following enhanced compensation along with interest at the rate of 7.5% per annum from the date of filing of claim petition before the Tribunal:-
S.No Heading Award of the Tribunal Modified award
1.
For loss of income Rs. 6,24,000/-
Rs. 16,24,560/-
2. For funeral expenses Rs. 15,000/-
Rs. 15,000/-
3. For loss of consortium Rs. 15,000/-
Rs. 30,000/-
4. For loss of love and affection.
Nil Rs. 60,000/-
Total Rs. 6,54,000/-
Rs.17,29,560/-
Mrs. Sindhu Sharma, learned Assistant Solicitor General of India seeks 12 weeks' time to deposit the enhanced award and it is granted.
This appeal is allowed in the above terms enhancing the award of the Tribunal.
(Ramalingam Sudhakar) Judge
Jammu
23.09.2016 :Tilak, Secy.
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Date of order:-23/09/2016
Vs.
Coram:
Hon'ble Mr. Justice Ramalingam Sudhakar, Judge
0
Due to paucity of time, the matter could not be taken up for consideration.
Post the matter in week commencing 17th October, 2016.
(Ramalingam Sudhakar) Judge Jammu 23.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU MP No. 211/2014 WPPIL No. 5/2013 Date of order:-27/09/2016 Court on its own Motion. Vs. State of J&K and anr. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B.S.Walia, Judge Appearing counsel: For the Petitioner (s) : Mr. Sunil Sethi Senior Advocate (Amicus) with Mr. Mohsin Bhat, Advocate. For the respondent(s) : Mr. Jhangir Iqbal Ganai, Advocate General with Mr. W.S.Nargal, AAG. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
Heard Mr. Sunil Sethi, learned Amicus and learned Advocate General assisted by Mr. W. S.Nargal, AAG.
We have perused the suggestions given by Amicus on 09.10.2013. There is also a Status Report filed by the Principal Secretary to Government Home Department dated 27.06.2016, where referring to the decision taken by the Hon'ble Supreme Court in case titled Thana Singh v. Central Bureau of Narcotics, reported as (2013) 2 SCC 590, Principal Secretary, Home has stated that the Core Committee is actively considering the issue and remarks are sought for from various stakeholders. It also includes the issue of setting up of appropriate Forensic Science Laboratory (FSL).
Learned Advocate General submitted that the report of the Amicus will also be considered in the next meeting and report on the progress may be submitted on the next date of hearing. He has also pointed out that they have partly complied with the directions issued by the 2 Hon'ble Supreme Court insofar as the appointment of Public Prosecutors are concerned and on the other issues serious consideration will be given by the State Government.
List in week commencing 7th November, 2016.
(B.S.Walia) (Ramalingam Sudhakar) Judge Judge Jammu 27.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU WPPIL No. 35/2013 MP No. 801/2013, 804/2013 & 255/2014 Date of order:-27/09/2016 Sanjeet Kumar Advocate. Vs. State of J&K and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B.S.Walia, Judge Appearing counsel: For the Petitioner (s) : Mr. Jatinder Choudhary, Advocate. For the respondent(s) : Mr. Jhangir Iqbal Ganai, Advocate General with Mr. W.S.Nargal, AAG. Mr. S.S.Nanda, Sr. AAG. Mr. D.C.Raina, Sr. Advocate with Mr. Mr. F.A.Natnoo, Advocate. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0 List on 5th October, 2016, as requested. (B.S.Walia) (Ramalingam Sudhakar) Judge Judge Jammu 27.09.2016 Tilak, Secy. HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 94/2016 & MP No. 1/2016 c/w LPASW No. 95/2015 LPASW No. 96/2015 LPASW No. 31/2016, MP No. 1/2016 LPASW No. 32/2016, MP No. 1/2016 LPASW No. 34/2016, MP No. 1/2016 LPASW No. 40/2016, MP No. 1/2016 LPASW No. 41/2016, MP No. 1/2016 Date of order:-27/09/2016 State of J&K and ors. Vs. Kuldeep Raj and ors. State of J&K and ors. Vs. Kamal Kishore Verma and ors. State of J&K and ors. Vs. Neha Sambhyal and ors. JKPSC. Vs. Kuldeep Raj and ors. JKPSC. Vs. Bhavnish and ors. JKPSC. Vs. Divya Sharma and ors. JKPSC. Vs. Kamal Kishore Verma and ors. JKPSC. Vs. Neha Sambyal and ors. Coram: Hon'ble Mr. Justice Ramalingam Sudhakar, Judge Hon'ble Mr. Justice B.S.Walia, Judge Appearing counsel: For the Appellant (s) : Mr. Jhangir Iqbal Ganai, Advocate General with Mr. W.S.Nargal, AAG. Mr. D.C.Raina, Sr. Advocate with Mr. F.A.Natnoo, Advocate. For the respondent(s) : None. (a) Whether approved for reporting in Digest/Law Journal-Net : Yes/No (b) Whether approved for reporting in Press/Media : Yes/No 0
List on 4th October, 2016, higher up in the list, as requested.
(B.S.Walia) (Ramalingam Sudhakar) Judge Judge Jammu 27.09.2016 Tilak, Secy. PAGE 46