Sir, recently the State Bank of India released notification for clerical posts. Till now for the age criteria the reference month is April, but this time without prior notice they've changed it to August. This will make many candidates who are born prior to August ineligible to apply. Is there any legal ground to file a case regarding this issue? Can I challenge the reduction of age criteria in bank examination?
You should file a writ petition before the High Court under Article 226 of the Constitution of India. The change of age criteria will disentitled those candidates for appearing in examination who would have been otherwise entitled. The ground of their elimination is their cut off date instead of their ability and competence.
Moreover, there is no nexus between the objects sought and reduction of age by just four months. Those candidates have been automatically eliminated just because of their date of birth.
However, the age criteria has been April for the last five years. Hence, sudden change in age without giving a chance to those eliminating candidates is unjust and unfair.
In National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman AIR 1992 SC 1806, the Supreme Court has held that: The procedural fairness is the main requirement in the administrative action. The `fairness' or `fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant considerations.
The Bank will not get remarkable and super competent candidates for the post by just reducing the age by four months. But its decision shall keep those candidates out of the selection process because they are born between April and August.
The bank has disqualified those candidates without judging their ability. Not giving the chance to these candidates in previous examinations infers that the action of the Bank is unjust, unfair and arbitrary.
An arbitrary action is against the rule of equality hence, it violates the fundamental right enshrined in Article 14 of the constitution. In In Dr. Ami Lal Bhat v. State of Rajasthan : (AIR 1997 SC 2964) the Supreme Court has held that
Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut- off cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases.
Thus you should file a writ petition in the High Court. Your goulds would be:
- There is no relation between the object sought and reduction of cut off age by only four months.
- The reduction of age by the bank is arbitrary, unjust and unfair.
- It violates the fundamental right i.e. right to equality.
- Some candidates without any fault on their part became ineligible to appear in the process of appointment.
- Decision for reduction of age by only four months will not give extra edge to the bank in selection of suitable and deserving candidates.
- Decision is wholly mechanical and lacks intelligible reasoning.
In my case punishment passed without considering my representation against the show cause notice. I have received a show cause notice for not submitting daily reports to the head office. Therefore, the Divisional Area Manager has issued a show cause notice that why you should not be punished with the censure entry? When I submitted my representation, he overlooked and passed an arbitrary order of punishment. Can I initiate legal proceedings for the quashing of such an order?
You should file a writ petition in the High Court under Article 226 of the Constitution of India. This punishment order is illegal because it is a non-speaking and unreasoned order. The punishing authority did not consider your representation or reply against the show cause notice.
The Supreme Court has held in the R. K. Mehrotra vs State of Bihar (2006) SCC (L&S) 769 that the punishment prescribed therein cannot be passed unless the representation made in perusal to the show cause notice, has been taken into consideration before the order is passed.
Hence, the punishment order which is passed without considering your representation submitted in perusal of the show cause notice is illegal. The punishing authority did not apply his mind and derived the conclusion capriciously. This kind of act of a quasi judicial body is bad in the eyes of law. In G. Valli Kumar vs Andhra Education Society (2010) 2 SCC 497 the Supreme Court has held that
The requirement of recording reasons by every quasi judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the concerned authority.
G. Valli Kumar vs Andhra Education Society (2010) 2 SCC 497
In J. Ashoka vs University of Agricultural Society (2017) 1 SCC (L&S) 517 the Supreme Court has opined that “reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial.
The punishing authority had not applied his mind and also had not given the reason for such a punishment. Therefore, the punishment is not supported by any reason, document, evidence or materials. In this situation the High Court may quash the punishment.
My department has prepared a faulty seniority list for the year 2017. It is against the officers who have been promoted to the post. The officers of direct recruitment have gotten an edge over the promotees. We have been suffering huge losses on account of such a faulty seniority list.
There is a fixed quota of vacancies reserved for the direct recruitment and promotion respectively. Therefore, if any vacancy remains unfilled in the respective quota it shall carry forward for the next year. In the next vacancy year the rule of quota shall apply thereto in the same manner.
Principle for preparing inter se seniority list
If the department is going to filling the unfilled quota of promotees from the officer of direct recruitment or the vice versa, that promotion is illegal and against the office memorandum 4-03-2014. When the department commits mistake or deliberately ignores the principle of inter-se seniority consequently officers of direct recruitment have been placed above the promotees such a seniority list is illegal and liable to be quashed.
This is against the dictum laid down by the Supreme Court in N.R. Parmar Vs. Union of India and Ors., (2012) 13 SCC 340. The Supreme Court thus held that the basic principle for determining the seniority shall be the rotation of vacancies between direct recruits and promotees.
The Supreme Court in K. Meghachandra Singh & Ors. Vs. Ningam Siro & Ors. (2020)5 SCC 689 has categorically held that a person cannot be entitled to claim seniority from the date he was not in government service.
Therefore, if the officer of direct recruitment has been placed in the seniority list in promotee quota for the year to which he was not in service, his seniority is illegal.
In this situation you should file an original application before the Central Administrative Tribunal. You should demand for quashing or set aside of impugned final or draft seniority list as the case may be.
Question: Based on Meghachandra decision on inter-se seniority between Direct Recruits and Promotees, DoPT has issued an OM dated 13.08.2021. and said those who joined between Parmer's judgement and Meghachandra judgement, seniority list will be prepared based on Parmer judgement. But Meghachandra judgement said the order is prospective. So is DoPT OM contradictory to Meghachandra judgement?
Asked from: New Delhi
The decision of the department is erroneous because the judgment of Parmar has been overruled by the judgment in Meghachandra. That employees are not entitled to claim seniority from the date of advertisement. There seniority shall be considered only from the date of appointment.
This is explicitly held by the Supreme Court in Meghachandra's case. The office memorandum dated 13-08-2021 is illegal and violative of dictum of Meghachandra. In this situtation, you should file a OA before the Central Administrative Tribunal for staying the preparation of seniority list.
The department has initiated a departmental inquiry against me for committing false entries in the log book. No charge sheet, evidence, report of inquiry officer and materials had served to me before inflicting punishment. I want to know whether the disciplinary authority is bound to furnish the report of the inquiry officer before inflicting punishment?
My superior officer had seized the log book and all relevant files before sending a complaint against me. I have been on suspension since october 2013 without a subsistence allowance. My family is living in vegarancy. Recently the department has lodged a first information report against me. How could I save me and my family?
Prima facie the entire departmental enquiry is illegal and perverse. The disciplinary authority did not afford you an opportunity of hearing. It is the legal duty of the disciplinary officer to furnish the report of the inquiry officer to the delinquent officer before punishing him.
Report of inquiry officer
You have the right to know about the charges levelled against you. Furnishing the findings of the inquiry report is the only medium to convey the charged employee about the charges levelled against him. Inquiry report conveys the information to the delinquent employee:
- What incriminating materials have collected during the inquiry
- Name of witnesses who prove the charges
- Nature of evidence found against you
- Foundation of charges
In Avtar Singh vs Inspector General of Police Punjab 1968 Serv. LR (SC) the Supreme Court has held that a delinquent officer has the constitutional right to know the findings of the inquiry officer.
The Supreme Court further held that every public servant is entitled to have the whole of the matter brought to his notice before he was asked to show cause why particular punishment should not be meted out to him.
Therefore, not furnishing the inquiry officer’s report has rendered the entire proceeding illegal. It also violates the principle of natural justice. Furnishing the report of the inquiry officer ensures fairness in proceeding. It also empowers the delinquent officer to request the disciplinary authority to remove or change the inquiry officer if he is discharging his duty illegally.
You should file a writ petition in the High Court under Article 226 of the constitution of India. The High Court may quash the entire proceeding along with the punishment order. You can submit a representation to the disciplinary authority and seek reinstatement along with consequential benefits.
One of my senior officers is not happy with my action against the defaulter contractor. My project manager has assessed my character roll and entered as outstanding because I have completed the project work before time. I have tightened the control over the defaulter contractor and cancelled their contract and recovered a huge amount from them. The effect of my action bound the other contractor to accomplish the work before time. The managing director has converted my character roll entry from outstanding to satisfactory without my knowledge. Therefore, it’ll affect my timely promotion. Sir please suggest what I should do in this case?
You should prefer a representation before the superior officer than the Managing Director. Make a prayer to restore the entry made in your character roll because that entry has been converted or downgraded without your knowledge. When the concerned officer does not act on your representation within a month then you should file an original application before the Central Administrative Tribunal (CAT).
In Dev Dutt vs. Union of India (2008) 2 SCC 725 the Supreme Court has held that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its up-gradation.
The principle of non arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
Dev Dutt vs. Union of India (2008) 2 SCC 725
If there is no reason behind such a downgrade entry in character roll it renders the action arbitrary. An arbitrary action is against the principle of equality therefore, violates the Article 14 of the Constitution of India.
Also Read: Can the government equate the two posts?
The Hon’ble High Court of Allahabad in Surendra Kumar vs. State of U.P. and others, 2006 (3) UPLBEC 2834 has held that not giving any reason for converting the entry in character roll violates the principles of natural justice and fair play and as such is not justifiable in law.
Therefore, you should file a representation as soon as possible. Your prayer to modify the entry in your character role from satisfactory to outstanding is well founded. After non-action or bad-action of the concerned officer regarding entry in your character roll, you should prefer an OA before the CAT.
My cousin had an engagement. Can I claim compensation if engagement is broken for inappropriate reasons? Her fiance started talking on the phone. But due to her pursuing a degree course (of my cousin), she was not able to speak longer and every day. They are breaking the engagement. But we have asked them to compensate for our losses in doing engagement (1 lak). They don’t want to give any amount for engagement breakage. Under muslim law provisions what is the advice on this?
You should file a civil suit for the recovery of losses you have incurred in the ring ceremony. When the contract has been breached the responsible party has to compensate the other to the extent of loss he suffered due to breach of agreement.
This is pure civil wrong thus you can move a civil suit irrespective of the religion. Engagement is an agreement of marriage therefore, it has a legal validity and upon breach of the engagement you can claim damages.
The fiance’s family is responsible for the breach of agreement hence, he shall compensate you. You have to produce the list of expenses along with the plaint. You are entitled to claim compensation if engagement is broken for inappropriate reasons.
In this situation you can also seek compensation for the mental agony, social humiliation, loss of reputation etc. No need to send a legal notice to them before filing the civil suit.
I am working as headmaster of the school. My advocate has withdrawn the writ petition without consent of petitioner i.e. me. I joined the school in April 2013. Well Before my joining, in November 2012 ,an agreement had been made by the then headmaster for construction of a Kasturba building run under Bihar education project of sarv shiksha abhiyan.
But departmental engineers made no effort to get the work started, no lay-out was done by them. When I joined the school ,the departmental engineers and the officers began to put pressure on me to start the work. Lay-out was done in june 2013. In the process, it was found that the available land was not sufficient enough to carry on construction work.
The agreement was forced to be done without the land having been measured.It was a grave mistake on part of the engineers.In that situation, a new site adjacent to the previous site was searched. It was a vast and big ditch. The then executive engineer changed the design spread foundation was changed to pile foundation, plain structure was changed to RCC structure.
Estimate was also changed.design and estimate was finalised on 17-08-2013. No fresh agreement was executed with me. Before it on 11-08-2013, Bihar government issued a new schedule of rates effective from 11-08-2013. But the estimate was prepared on the basis of rates prevailing in 2011. Between 2011 to 2013, the prices of materials and labour increased drastically.
I had to suffer huge losses on account of high increases in prices of materials and labour. It was all due to the fault of engineers on account of which the work started very late.I was not a bit responsible.
When measurement book was prepared,it was found that many works had not been incorporated despite the fact that they were in the design and the work was actually done. That again amounted to a huge loss.
I preferred a writ petition in 2018 in Patna high court to direct the department to book the MB on the basis of 2013 schedule of rates which prevailed at the time of making the estimate and incorporate all the items which were left in measurement.
But the sad fact is that after a lapse of four years in july 2022, my advocate all of sudden withdrew my case without my consent. When I asked the reason, he gave a quite vague explanation. He must have taken my consent.
I am sadly surprised how he can withdraw my case without my consent. Please guide me what I can do in that situation. I can not leave out such a huge loss. I am determined to fight my case till the last remedy available.
The advocate cannot act in contrary to the interest of his client. If the client has not given his consent to withdraw his writ petition, the advocate cannot withdraw the writ petition on behalf of the petitioner.
In this situation you should move a petition in the High Court for restore the writ petition and initiation of an inquiry against the advocate for his misconduct. This act i.e. withdrawal of writ petition without receiving consent or instruction of the petitioner, comes under the purview of misconduct as provided in the Advocates Act 1961.
I was married to my boyfriend when I was studying in B.Tech. We solemnised our marriage in a temple. How to get a mutual consent divorce within six months? All those things happened in hush-hush. No one knew about our marriage but we got registration of our marriage before the marriage registrar. We never lived together as a husband-wife because we were studying in B.Tech and after the completion we both were placed in different companies in 2017.
Now my parents are searching for a bridegroom for me and I’m also willing to marry a guy of my parents' choice. I have talked to my boyfriend (husband) and he is also willing to end our marital status. He has been in a relationship with a girl and he is planning to marry her. How can we get a mutual consent divorce within six months? Please suggest. We both are living in Delhi.
You did not mention that when your marriage was solemnised. But according to the facts of your case, it seems that your marriage was solemnised before 2017. Your husband and you agree to end this nuptial knot. Hence, you should file a mutual consent divorce under Section 13B of the Hindu Marriage Act.
The mandatory period of separation for one year as required under section 13B has met. You have been living separately for more than five years. However, your marriage is solemnised and registered but in reality you both are unwilling partners.
This marriage is purposeless for yours therefore, no need to prolong this relationship further. Hence, you can move a petition under Section 13B for mutual consent divorce. Generally the court, upon filing of mutual consent divorce, gives a long date for six to eighteen months. This period is genetically treated as a second motion. After the second motion the court proceeds further and pass a decree of divorce.
In Nikhil Kumar vs Rupali Kumar AIR 2016 SC 2163, (2016) 13 SCC 383 the Hon’ble Supreme Court has held that the Supreme Court can waive the statutory period of second motion under Article 142 of the Constitution of India.
The Supreme Court can waive the second motion as required under Section 13B(2) of the Hindu Marriage Act 1955. But no need to approach the Supreme Court only for waiver of second motion. You can file a mutual consent divoce in the Family Court in Delhi. One week after the filing of divorce petition you should move a waiver application in the Family court.
In Amardeep Singh V. Harveen Kaur AIR 2018 SC (Civ) 41 the Supreme Court has held that, in mutual consent divorce, the court can waive the statutory period of six months after considering the following facts:
- Separation of parties is already over before the first motion itself.
- There is no likelihood of success in mediation or conciliation efforts.
- Parties have genuinely settled their differences including alimony, custody of child or any other pending issues between them.
- The waiting period will only prolong their agony.
So, you may move a waiver application stating the facts that you haven't been living as spouse for a single day, there are no differences or issues regarding the maintenance, custody of child etc. You both have agreed to end this nuptial knot.
The court may admit your waiver application and proceed further to pass a decree of mutual consent divorce. If you prepare a settlement deed then the court may grant a decree within six months from the date of filing of the divorce petition.
If the court rejects your waiver application then you should file a writ petition before the High Court and take a direction from the High Court to waive the second motion. The High Court in the guidelines of Hon’ble Supreme Court, passed in Amardeep Singh, may direct the family court to waive the period of second motion and proceed further. Thereafter you can get mutual consent divorce in six months from the date of filing.
I've been on an unpaid service for last 3 months, progressing into 4th, purely on frivolous grounds, at the whims of accounting unit head, without following due process of law, as laid down in Central Civil Services (Conduct) rules, without any charge-sheet, denying any representation subsistence too. What recourse do I have in this matter?
You have the evidence to prove that you have been discharging duty continuously. There is no departmental or disciplinary proceeding pending against you. In this situation the Government cannot withhold your salary.
Article 300-A of the Constitution guarantees that no persons shall be deprived of his property saved by authority of law. Salary is a property within the meaning of Article 300A of the Constitution of India. Salary of an employee, therefore, cannot be withheld except for cogent reasons. Therefore, in the absence of any lawful justification, the government cannot stop your salary.
Till date, no show cause notice has been issued against you. Withholding salary without affording an opportunity of hearing is an arbitrary act and more importantly, it is a breach of the principle of natural justice i.e. audi alteram partem.
It is an undisputed fact that you have been discharging your duty including the period to which your salary has been stopped. There was no correspondence with you before withholding your salary. There were disciplinary proceedings against you under the CCS (CC&A) Rules, 1965.
Article 23 of the Constitution of India, recognizes the fundamental right of the citizens of this country not be compelled to work without wages [Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180; State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1].
In Suraj Narain v. State of Madhya Pradesh [AIR 1960 MP 303]. The Division Bench of the Madhya Pradesh High Court has held that to ask a man to work and then not to pay him any salary or wages savours of begar which is prohibited in Article 23 of the Constitution; that it was a fundamental right of every citizen of India not to be compelled to work without wages.
You should file a representation to the concerned authority along with the fact that there was no proceeding initiated or pending against you at the time when my salary has been stopped. Therefore, I am entitled to receive my salary because I have been discharging my duty continuously.
If the concerned authority does not take any action on your representation within a month then you can move an OA before the CAT or High Court under Article 226 of the Constitution of India (as the case may be).
