Can I challenge the promotion of ineligible candidates violating the principle of seniority cum merit because I have not been promoted despite having merit. There were five posts to be filled by promotion. One person is promoted without fulfilling the minimum educational qualification. In this case, I submitted my objection when the final seniority list was published by the departmental promotion committee. But they did nothing about my objection but passed a promotion order. I am on the waiting list. Now I want to challenge the order.
Asked from: Uttar Pradesh
When the criteria for promotion was seniority cum merit, that promotion cannot be done only on the basis of seniority. The merit also included and the DPC had to consider the merit of the candidate belonging to feeder cadre.
It is well established that the principle of seniority-cum-merit for promotion is distinct from both the principle of seniority and the principle of merit-cum-seniority. When promotion is based solely on seniority, merit does not play any role. However, under the principle of seniority-cum-merit, promotion is not granted automatically based on seniority alone; merit also plays a significant role.
The standard application of the seniority-cum-merit principle involves subjecting all eligible candidates in the feeder grade (those meeting the prescribed educational qualifications and required period of service) to an assessment process to determine whether they meet the specified minimum merit. Only candidates who meet the minimum necessary merit are promoted, and this is done strictly in the order of seniority.
In Rajendra Kumar Srivastava v. Samyut Kshetriya Gramin Bank, (2010) 1 SCC 335; B.V. Sivaiah vs K A Babu and others (1998) 6 SCC 720, the Supreme Court held that:
while the principle of seniority-cum-merit places greater emphasis on seniority, the principle of merit-cum-seniority prioritises merit and ability, with seniority being less significant. For assessing the minimum required merit, the competent authority may establish the necessary standards and prescribe the mode of assessment for evaluating the merit of eligible employees.
Thus, it is mandatory for the Departmental Promotion Committee (DPC) to establish minimum merit criteria and to consider only those candidates who meet these criteria for promotion under the seniority-cum-merit principle. A candidate who does not possess the minimum required merit or qualifications cannot be deemed fit for promotion. Therefore, such a candidate must not be considered by the DPC, and any promotion order in favor of such an ineligible candidate would be illegal per se.
You should file a writ petition under Article 226 of the Constitution of India, seeking the quashing of the promotion order on the grounds that it violates the principle of seniority-cum-merit. Prima facie, it appears that an ineligible candidate has been promoted in clear violation of the law.
Can I file a revision if the sub divisional magistrate has wrongly rejected the order of status quo in my case for declaration of title in agricultural land. My father received some agricultural land from his ancestors. We are bhumidhar with the right of alienation. Our family is not residing in the village and some other people are trying to encroach our land. Therefore, we filed a case before the court of SDM, Pharenda. He was granted status quo on the first date but later on he revoked his order. Now the advocates have different views on taking the next step against the order of SDM. One of them is advising that revision is not possible because the case is still pending. And others have advised to file revision. Please suggest.
Asked from: Uttar Pradesh
It appears that you have filed a suit under Section 144 of the Uttar Pradesh Land Revenue Code, 2006, seeking a declaration. In this suit, you requested interim relief under Section 146 of the same code.
However, the Sub-Divisional Magistrate (SDM) has revoked the prior order of status quo that was in your favour, denying the interim relief under Section 146, though the suit under Section 144 remains pending.
In this context, the order rejecting interim relief constitutes an interlocutory order. Established legal precedent dictates that no revision can be filed against an interlocutory order. In Riyasal Ali vs. DDC and Others [2022], the Allahabad High Court has held that a revision is not permissible against an interlocutory order.
Consequently, you cannot file a revision against the impugned order issued by the SDM. Under Section 210 of the Uttar Pradesh Land Revenue Code, a prerequisite for filing a revision is that the order in question must have been passed in a suit conclusively decided by the revenue court. Since your suit is still pending, you cannot file a revision either to the Board of Revenue or the Commissioner.
In this situation, it is advisable to file a petition in the High Court under Article 227 of the Constitution of India. If there is an imminent risk to the suit property, or if the opposing party might cause harm to the property, it is essential that both parties maintain the status quo. Thus, the SDM should not have revoked the prior order maintaining the status quo.
Magistrate has treated my case as a complaint and refused to direct an investigation by the local police. I have filed an application to the magistrate under Section 156(3) of the code of criminal procedure. After more than nine months the magistrate has ordered to lodge a complaint instead of investigation. I have CCTV recording to prove that the accused along with some other person entered my house at night and stole my belongings including some jewelry. On the basis of those CCTV recordings the magistrate has written in order that the facts are in the knowledge of the complainant, and he has sufficient evidence to prove the case therefore, it shall be treated as complaint instead of direction to register FIR. I am aggrieved from the order of the court.
Asked from: Uttar Pradesh
Based on the facts presented, it is inferred that the accused have committed a cognizable offence by entering a dwelling house at night and committing theft, which is punishable under Section 380 of the Indian Penal Code, with imprisonment for up to seven years.
The magistrate appears to have overlooked a crucial aspect when deciding your application. Specifically, the number of accused is more than one, with some still unidentified, and the stolen property remains unrecovered.
Under these circumstances, an investigation by the police, rather than a complaint, would be more appropriate. The police, as a specialised agency, possess the necessary authority to arrest suspects, recover property, and identify those involved.
It also appears that the magistrate processed your application in a routine and mechanical manner. In Suresh Chandra Jain vs. State of M.P. and Another (2001) 2 SCC 628, the Supreme Court emphasised that a magistrate must apply judicial discretion and should not act in a mechanical or casual manner while deciding an application under Section 156(3) of the Cr.P.C.
The magistrate's decision to direct the police to register an FIR and conduct an investigation, or to treat the application as a complaint, must be reasoned and supported. In Anmol Singh vs. State of U.P. AIR Online 2021 All 632 and Lala Ram vs. State of U.P. 2020, the Allahabad High Court similarly held that
A magistrate must apply judicial discretion in such decisions. An investigation and FIR registration should be directed when the complainant does not know the names of all accused, cannot gather the evidence required to support the case, or where recovery of property can only be facilitated by police action.
The Supreme Court, in the Lalita Kumaricase, ruled that an FIR must be registered if the information discloses the commission of a cognizable offence. In light of these considerations, you should file a petition under Section 528 of the Bhartiya Nagrik Suraksha Sanhita2023 in the High Court, seeking to quash the Magistrate’s order and have the case reconsidered.
Related: Revision against the order of investigation passed under Section 156 (3) crpc
Criminal and civil proceedings can proceed simultaneously in cheating cases if both cases are made out against the accused. I have a company who is working in casting of industrial foundry products. My company has contracted another company for the supply of specific casting tanks for cement factories. After receiving a huge contract that company is causing a delay in supply of product. Then my legal team sent a notice to comply with the terms of contract failing which heavy compensation shall be paid by you. When my team conducted an initial inquiry against the company then came to know that the company has never worked in casting. That company committed fraud and misrepresented just to obtain a contract. Can I initiate criminal and civil proceedings against that company?
Asked from: Uttar Pradesh
The facts of your case suggest that deception occurred at the very beginning of the contract. The company, having no experience in industrial casting, made false promises to obtain the contract. When deception or inducement is present from the outset or at the time of entering into a contract, it constitutes the offence of cheating.
You can initiate both civil and criminal proceedings against the company simultaneously. In Indian Oil Corporation vs. NEPC (2006), the Supreme Court held that a commercial transaction or contractual dispute, in addition to providing grounds for seeking remedies under civil law, may also involve a criminal offence.
Similarly, in Syed Askari Hadi vs. State (Delhi Administration) (2009) 5 SCC 528, the Supreme Court ruled that civil and criminal proceedings may run concurrently. A criminal court may take cognizance of the case upon being satisfied that a prima facie case exists.
Cheating is both a criminal offence and a civil wrong. You are entitled to initiate both types of proceedings simultaneously. While there is no bar to doing so, criminal proceedings tend to take precedence over civil proceedings. For more legal help please visit Kanoon India.
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The District Magistrate has wrongly cancelled my arm licence on the report of the Superintendent of Police. The SP was working on the advice of political boss. He was adamant to cancel my licence however, I was present in the mob with my gun just to protect myself. There was a quarrel between two groups of our village during the Dussehra procession. There was a call from the local administration to disburse from the scene, but a mob was present. I did not use my gun and no incident happened. But the SP sent a report that I have misused my gun licence and despite warning from the police I remained in a mob to cause terror to a religious group. In this situation my personal security is at risk.
Asked from: Uttar Pradesh
Section 17 of the Arms Act empowers the District Magistrate to cancel or suspend an arms licence under certain circumstances. However, it is mandatory for the District Magistrate to provide the licensee an opportunity to be heard before taking any adverse action.
Based on the facts of your case, it appears that you were part of a mob that had been ordered to disperse by the police. However, you deliberately remained. By doing so, you have committed an offence by wilfully disobeying the order of the authorities. It is also an undisputed fact that you were armed while present in the mob. Whether your presence caused terror during the procession is a matter to be established based on related incidents and circumstances. It is important to note that no violent incident occurred, and the mob did not become aggressive.
In the case of Mohd. Haroon vs. Superintendent of Police Siddharth Nagar (2003) 1 JIC, the Allahabad High Court ruled that mere involvement in an offence does not justify the revocation of an arms licence, unless the conduct of the licence holder reasonably suggests a potential misuse of the licence.
Therefore, mere disobedience of a police order does not give the District Magistrate grounds to cancel your arms licence. If the District Magistrate has passed a final order, you should appeal to the Commissioner. The facts indicate that the revocation order is illegal, arbitrary, and contrary to the provisions of the Arms Act. For more legal help please visit Kanoon India.
One of employee has committed suicide after receiving show cause notice for his misconduct in handling and discharging his duty. On receiving a report from the joint director that the PO has not handling the case with due diligence therefore, lost the matter in the court. Thereafter, a fact-finding inquiry was set up and receiving that findings a show cause notice was served. When he committed suicide, an FIR has been lodged against me for the offence under Section 306/107 IPC. Please suggest what to do next.
Asked from: Uttar Pradesh
Based on the facts of your case, it appears there was no instigation or incitement from your side to commit suicide. When the show cause notice was served, the deceased had the opportunity to explain the situation or present his stance against the allegation of misconduct. Until then, no adverse action was likely to be taken against him.
There was no threat posed to him as a result of the show cause notice. In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. There must be clear and convincing evidence of such acts. In the case of suicide, mere allegations of harassment by another person are insufficient unless the actions of the accused compelled the victim to commit suicide, and such actions must be closely connected to the time of the incident.
According to this legal position, there must be direct or indirect evidence showing that the accused, through a continuous course of conduct, created a situation where the deceased felt they had no option but to commit suicide. In your case, there is no evidence of any such continuous conduct by the accused.
Therefore, prima facie, there is no evidence to support the allegation of inducement or abetment of suicide. In the case of Ude Singh vs. State of Haryana AIR 2019 SC 4570, the Supreme Court held that:
If the accused plays an active role in damaging the victim's self-esteem and self-respect, which eventually drives the victim to commit suicide, the accused may be held guilty of abetment of suicide.
However, issuing a show cause notice following a preliminary inquiry does not in any way tarnish the self-esteem of the deceased. It is part of a departmental inquiry process when an allegation of misconduct or dereliction of duty has been made against an employee.
No punishment was imposed with the issuance of the show cause notice, nor did it have any adverse impact on the character roll of the deceased employee. Under these circumstances, no offence is made out against you.
It is advisable to file a petition in the High Court under Section 528 BNSS for quashing the FIR, as no offence is made out against the accused. The FIR may be quashed by the High Court. For more legal help please visit Kanoon India.
What is remedy against order passed by appellate court under Section 29 Domestic Violence Act? Appellate court directed to pay seven lakh as compensation and sixty thousand rupees per month as maintenance in domestic violence case. My father in law is an advocate in the district court XXX. He has filed an appeal against the order of judicial magistrate first class in the domestic violence case. As an interim major the court directed to pay one lakh for the meeting of expenses borne by the wife and also pay maintenance at the rate of ten thousand rupees per month.
My father in law filed an appeal in the sessions court. The sessions judge directed to pay seven lakh as compensation and sixty thousand rupees per month as maintenance without appreciating the materials on record. I am a teacher and my salary is about ninety thousand per month. Out of which thirty thousand deposits in the NPS and twenty thousand as EMI for the home loan. If I pay sixty thousand rupees as maintenance how could I survive?
Asked from: Kerala
The appellate court's decision to award seven lakh as compensation and sixty thousand per month as maintenance in disposing of the appeal under Section 29 of the Domestic Violence Act seems erroneous. The amount of maintenance must be fixed based on the net income of the husband.
The Hon'ble Supreme Court, in Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129, has held that 25% of the husband's net income would be just and proper to be awarded as maintenance allowance to the wife.
As a salaried person, the amount of monthly allowance should be fixed after deducting your liabilities. The contribution to the new pension scheme is not a liability, but you are required to contribute a fixed amount per month. The EMI of the home loan is your liability. These two constitute fifty thousand per month as necessary expenses, which cannot be ignored by the court while deciding the monthly alimony.
Also read: Revision is not maintainable against an order passed by judicial magistrate in DV Act
Prima facie, the decision of the appellate court seems erroneous and is liable to be set aside. You should move a petition in the High Court under Article 227 of the Constitution of India to set aside this decision. Proceedings under the Domestic Violence Act cases are quasi-civil in nature; hence, you must approach the High Court under Article 227 instead of Section 482 of the Code of Criminal Procedure.
In Santhosh v. Ambika R., (2015) SCC Online Ker 26542, the Kerala High Court held that a party aggrieved by the order of the appellate court under Section 29 of the DV Act must file a revision under Article 227. Remedy against order passed under Section 29 Domestic Violence Act is to file revision to the High Court.
In your petition, you must adduce proof of your loan liability and monthly contribution to the new pension scheme. If you have any other liabilities, such as medical expenses for yourself or any dependent, you must also include them in the petition. You need to prove that the amount of monthly maintenance fixed by the appellate court was determined without the application of judicial mind and in violation of settled law regarding the determination of monthly alimony. For more legal help please visit Kanoon India.
Also read: Can wife claim residence order under the DV Act after the decree of divorce?
You can sue a person despite that the contract is unregistered. In the prevailing situation you have a right to recover the rent of three months along with interest and also claim damages. This house was let out for three years. If the term of lease is more that one year it must be registered as per the provision of section 107 of the Transfer of Property Act.
Registration of lease agreement was mandatory. When the registration of deed is made mandatory by law, and not registered that deed shall not be admissible in evidence. But it tends to show that parties were entered into an agreement. On the basis of agreement, you can sue him for the damages and recovery of rent. For more legal help please visit Kanoon India.
What is the immediate relief available against a stay order granted by the High Court? One of the candidates approached the High Court alleging irregularities in the conduct and evaluation of marks. He claims that candidates received uneven marks due to the vested interests of the college administration. However, there is no solid evidence to support any irregularity. All answer sheets were kept in sealed covers and evaluated by one examiner, then cross-checked by another examiner. This process ensured that each answer sheet was checked by two examiners, neither of whom had information about the other examiner's identity or the candidates' details.
More than seven thousand students appeared in the entrance examination for one hundred twenty seats. Future of one hundred twenty students rests at the stake of this writ petition and stay order. We have been conducting examinations since 1934, and no such issue has been raised before the court until now. Despite this, the High Court stayed the admission process during the very first hearing based solely on these allegations, without any supporting evidence. In this scenario, what would be the best possible remedy against the stay order issued by the court?
Asked from: Bihar
A stay order is granted by the court as an interim relief. An order of interim relief is also called an interlocutory order. Generally, interlocutory orders are not appealable. However, if the court determines any right through the interlocutory order, that order becomes appealable. In other words, if the interlocutory order affects the rights of a party, the aggrieved party can appeal that order.
Ad-interim and ex-parte relief should be granted rarely. In your case, the stay order has affected the entire admission process, impacting the future of one hundred and twenty students. More than seven thousand students appeared for the entrance examination, yet only one student has made such a claim. In this scenario, the High Court should have issued a stay order only after receiving a reply from the college administration, i.e., the opposite party.
The Hon'ble Supreme Court, in Central Mines Planning and Design Institute Limited vs Union of India (2001) 2 SCC 588, held that an interlocutory order comes under the definition of a judgment when that order constitutes a final determination and affects the valuable rights of parties.
When a stay order falls under the definition of a judgment, it becomes appealable. The interlocutory order in this case affects the future of one hundred and twenty students. Stalling the admission process is not justified as it will delay the academic session.
Filing letters patent appeal or special leave petition is the best relief against the stay order of the high court. Therefore, you should immediately file an appeal against this order. If the single bench passed the order, you can prefer a letters patent appeal or special appeal before the division bench of the same High Court. If the division bench passed such an order, you would need to file a special leave petition to the Supreme Court under Article 136.
Once the admission process has started, it should not be stayed merely on the assumption of irregularity. You mentioned that the petitioner has no cogent evidence to prove the alleged irregularity. In the appeal, you should present evidence about the entire process of the entrance examination. When the court finds that the chance of irregularity is minimal, it should vacate the stay order. For more legal help please visit Kanoon India.
My neighbour is claiming a road in my land and he is obstructing the construction of a boundary wall on my land. We purchased one acre of land registered in the names of four people. After 15+ years, the neighbour claims that when he bought his plot, he was shown a 25-foot road on your purchased land. He is now refusing to allow us to construct a boundary wall until we leave a 25-foot road between his plot and our land. He is also misbehaving and manhandling us, possibly due to his local influence. What legal actions can we take?
Asked from: Telangana
Your neighbour has no right to interfere with your property. If a public road existed on this plot, it should be mentioned in both your neighbour's sale deed and your own. In the absence of such demarcation, your neighbour has no legal right to disturb and obstruct the construction of your boundary wall.
A neighbour cannot claim a road on adjoining private land if the property's boundaries are clearly defined in the sale deed. In the case of N. Subbayya Chakkilian v. Maniam Muthiah Gounden (46 M.L.J. 182), the Madras High Court established that specific boundaries of land mentioned in a sale deed shall prevail over general measurements.
It is a well-settled principle that the boundaries declared in a deed of conveyance prevail over any conflicting boundaries. The Privy Council in P.K.A.R.C.O.S. Society v. Government of Palestine A.I.R. 1948 P.C. 207 held that when there is a difference or dispute between the area, survey number, and boundary of any property, the boundary prevails and is the decisive factor.
Thus, the boundaries of your land as mentioned in the sale deed shall prevail over any conflicting claims. If no public road is mentioned within your land's boundaries, you have absolute rights over the land situated within those boundaries.
How to prevent neighbour from interfering in the property
In the prevailing situations you need to initiate both criminal and civil actions simultaneously. Your foremost requirement is to prevent any breach of peace and maintain tranquility. Following that, you must take steps to prevent your neighbour from interfering with your possession of the property.
Move application under Section 145 crpc
You should inform the Executive Magistrate by an application under Section 145 of code of criminal procedure (crpc) and pray for maintaining peace by directing the neighbour to refrain from interference in your property. The Executive Magistrate can take a bond from your neighbour under Section 107 crpc, for maintaining peace.
Your neighbour is illegally interfering and claiming a road in the property of your possession. If the dispute escalates it may cause the breach of peace. Jurisdiction under Section 145 Cr.P.C. arises to the Executive Magistrate when there is apprehension of breach of public peace and tranquillity on account of dispute between the parties in regard to possession.
File a Civil Suit for declaration of right and permanent injunction
File a civil suit for the declaration of your right and a permanent injunction against your neighbour from interfering with your property. Meanwhile, submit an interim application along with that civil suit for a temporary injunction. Temporary injunction is mandatory to stop your neighbour from causing any disturbance in the enjoyment of your land till the pending civil suit. The injunction order shall prevent your neighbour from claiming a road in your land forever. For more legal help please visit Kanoon India.
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