I am selected as JE in railway under GDCE quota vacancy and after completion of training 22-10-2020 join on regular post. Whereas promotional quota JE selected on 28-08-2020 and given higher responsibility from 28-8-2020 then sent them for 3 month promotional training. My seniority is assigned from the date of completion of training whereas promotional quota JE seniority is assigned from the date of beginning of training. So who will be the senior?
In your case the candidates promoted through departmental process i.e. DPC will have seniority over the candidates of direction selection. The inter-se seniority of a officer promoted on the basis of the recommendation of a DPC either by selection or non-selection method as per due procedure, shall be determined as in the feeder grade from which they are promoted.
Feeder grade candidates get seniority over the direction selection if both have been selected in the same year. If feeder grade candidates hold the post in subsequent to the direct candidates then the candidate selection through direct recruitment will have seniority.
The government has appointed some engineers in the irrigation department without publishing the advertisement. It is a grave irregularity because the department did not follow the standard procedure in appointment of candidates in the government job. The ministry of irrigation was involved in the procedure to select the candidates of his own choice. There is gratification and malpractice on the part of the government.
Because of which the government has bypassed the selection procedure. I want to cancel this examination and conduct a fresh examination after publishing an advertisement and accepting application forms. Is it possible to compel the government to conduct a fresh examination?
The government is bound to conduct a fair examination for selection of candidates on civil posts. Appointment of candidates without publishing an advertisement is a grave irregularity. It has hampered the entire selection procedure.
Appointment without publishing advertisement is illegal
In Union Public Service Commission v. Girish Jayanti Lal Vaghela:(2006) 2 SCC 482 the Supreme Court has held that:
The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made.
A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered.
Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.
Therefore, the entire selection procedure is illegal and liable to be cancelled. You should file a writ petition before the High Court under Article 226 of the Constitution of India for the cancellation of appointment and re-examination after publication of advertisement.
Selection without publishing advertisement has blocked the eligible candidates from applying for the post. This is against the mandates or Article 16 of the Constitution. Right to equality and equal opportunity in appointment to government posts is a fundamental right.
In Delhi Development Horticulture Employees' Union v. Delhi Admn., : AIR 1992 SC 789 the Supreme Court has held that there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
In the State of M.P. v. Mohd. Abrahim : (2009) 15 SCC 214 again the apex court held that it is mandatory on the part of the employer to invite applications from all eligible candidates.
The High Court will cancel the appointment on the basis of violation of fundamental rights. You should file the writ petition as soon as possible.
The exam has not been conducted on an OMR sheet. I am working at CLW/Chittaranjan under the ministry of Railways as a Technician. This month I appeared in a promotional exam of Inter stage J.E. (LDCE). I was shocked in the exam hall to see the answer sheets, which were given to us to write the answer. It was not an OMR SHEET. We were given totally blank pages to write the question and its answer by hand.
The answer sheet had no carbon copy in between, no identity and no copy number printed on it like an OMR Sheet. Mention one thing but the questions were 100% objective multiple types. While the Railway Board Rule 196 dt. 14.12.2018 clearly says that all the promotional exams should be on CBT Mode or on OMR SHEET.
In the past the administration had been conducting the same exams on the OMR Sheet. Before this exam the administration has continuously conducted three such exams of JE on OMR Sheet and many other departmental exams also on OMR. The plain answer sheets can easily be changed with another one who has the approach but the OMR sheets are difficult to change as they are kept under the custody of two different officers at different places. And so the OMR Sheets are more reliable.
When the Railway Board has ordered to conduct the promotional exam on CBT or OMR Sheet, how can the administration force us to write the exam on Plain sheet? When the administration was continuously conducting the same exams in the past on OMR Sheet then why this time not? Should the administration re-conduct the exam? Result is about to be published. What can we do to cancel this exam and to have a fresh exam? Thank you.
This is serious malpractice because it directly affects the authenticity and genuineness of the examination. When the other examinations are conducted by the same board on OMR sheets then the board has to follow the same procedure in this examination also.
Examination on plain paper gives an opportunity to manipulate the answer. Thereby, the board can easily qualify the candidate of its own choice.
In Union Public Service Commission v. Girish Jayanti Lal Vaghela (2006) 2 SCC 482 the Supreme Court has held that the selection procedure which did not give fair chance to the candidate to compete in the examination violates the fundamental right. You should file a writ petition before the High Court under Article 226 of the Constitution of India for cancellation of the examination and issuing a mandamus writ.
The High Court will cancel the examination and direct the board, through the mandamus writ, to conduct a fresh examination on the OMR sheets.
I rented my house in March 2021 through a rental agreement. Police verification was done at that time but I couldn't collect the same because of being out of Station due to Corona. Now the man of property dealer who had dealt with this case has all of sudden left the job and is not traceable so all these documents are not available with me.
The tenant is also not in the flat and has not paid rent for two months. After several attempts I could contact him and he paid rent for one month saying his father is in ICU and he will pay rent shortly but I can't trust him. What should be my next course of action in the above circumstances? Should I wait for some more time?
You should send to him a demand cum legal notice for the payment of rent due for one month. He has promised to pay the dues very shortly therefore, the notice should be in the pursuance of that promise. You have to show in the notice that partial payment has been made by him and promised to pay the remaining very shortly.
No need to wait for the performance of his promise. He may or may not obey the promise hence, you should prepare the ground for claiming the dues through the court of law. Send the notice as soon as possible.
When he made the partial payment he accepted the financial liability i.e. dues of rent. It shall prove your case even in devoid of rental agreement. So, send the legal notice and claim the payment of dues within a stipulated period of time.
There is a girl who was live in relationship from last 2 years. She married a person and after marriage disclosed this fact. Her husband filed a petition under section 12(1) of HMA and a case of breach of trust and cheating was also filed against her. What are the provisions by which marriage can be declared as void in this situation?
Sexual intercourse before marriage is not a ground to render the marriage void. Adultery is a ground of divorce under Section 13 of the Hindu Marriage Act. But sexual intercourse with an unmarried girl does not constitute the offence of adultery.
Section 12 of the Hindu Marriage Act provides some grounds upon which a marriage is voidable. Deception, fraud, compulsion etc are the grounds of voidable marriage. But Section 12 does not recognise premarital sex as a ground of voidable marriage. In this condition the husband cannot receive any relief from the court. All the cases are baseless. There is no cheating on the part of wife. She was not bound to disclose the premarital sex at the time of marriage. Premarital unchestity is not a ground of nullity under Section 12 of the Hindu Marriage Act.
My employee started his own business without my consent and he converted my business to his firm. He used all my clients data and relations he built up as my employee for his personal benefit. While he is doing so, he enjoys all benefits like salary allowance. Can I file a criminal case against him? If possible, which section in IPC?
You can sue him for the loss you suffered from the breach of contract and fraud. He has breached the terms of agreement when he used the data of clients. As per the standard agreement between the employer and employee the employee cannot do business with the clients of the employer. If he does so he shall be liable to compensate the employer.
As you said that he has used your clients data for establishing business relations with them. This act constitutes fraud under Section 17 of the Indian Contract Act.
File a civil suit
You should file a civil suit for the damages or compensation for the loss you suffered due to fraud and breach of your ex-employee. He is bound to compensate because he has deceived you by stealing data of clients and doing business with them.
Section 73 of the Indian Contract Act gives you a right to claim damages for the loss. It is an undisputed fact that he was your client. Before joining he had no business with your clients. After quitting the job he has started his own business and dealing with your clients. These facts are sufficient to prove that he has deceived you by stealing data of your clients.
Can an Employee of a Private company start his own company while working?
Question: I was working in a Private Company. My employer terminated me as I have started my own company during my job. My employee contract does not mention stopping any employee to start another company. Can an Employee of a Private company start his own company while working? There was nothing mentioned in the Employee Contract to stop an Employee. Can I request you to send me any legal documents to prove this as per company law or any document?
Asked from: Gujarat
If the work contract does not restrict the employee to open own company while working with the employer’s company, the employer cannot claim that the employee has breached the work contract because the employee has owned a company during employment.
You should claim compensation against the employer (company) for the breach of work agreement. You should send a legal notice and claim compensation because you have lost a job due to breach of agreement.
Failing which, you can lodge a case against the company in the labour tribunal. If you wish you can file a civil suit instead of filing a case before the labour tribunal.
I want adjustment in amount of maintenance under Section 125 crpc. My wife has filed a case in Section 125 crpc for maintenance. I have been ordered to pay maintenance. Hence I have been paying the maintenance to my wife since 2009 till 2020. Now, the problem is that my wife when claiming for maintenance she produced evidence that my earning is about 60,000/- per month as a salary.
When I was working in dubai I got sixty thousand as salary. Now, after that, I have lost the job & since my health problem & age 54 years. I cannot work or get any job. now, on 15-09-2021, again the same application is made, that i am earning rs. 60,000/- per month. judges are not listening to the truth & always have given the wrong order. please suggest what to do? I am suffering from high sugar level, HIV (+ve), does not have gall bladder, fracture in leg.
Asked from: Madhya Pradesh
You should file a revision before the High Court if that order has been passed by the Family Court otherwise file revision before the Court of Sessions. When you have lost your job and are suffering from severe health problems the court is bound to decrease the amount of maintenance.
According to Section 127 of the code of criminal procedure (crpc) the court has the power to amend the order of maintenance on the changes of circumstances. The circumstances of the case have changed. You have lost your job and are not able to earn sixty thousand rupees. Hence, the court must decrease the amount of maintenance.
Adjustment in amount of maintenance
The husband pays maintenance out of the net income. Court excludes the expenses and liability of the husband from his salary or income. Then the court decides the amount of maintenance. You have been suffering from severe health problems so the net income has already decreased. Therefore, the court is bound to adjust the amount of maintenance.
Also read: Wife already receiving maintenance in DV Case and in Divorce case. Is it legal?
However, the husband is bound to maintain his wife. If the husband is jobless, this fact does not absolve the right of a wife to get maintenance from the husband. But the court is bound to fix a reasonable and justifiable amount of maintenance. Income of the husband is a crucial factor to decide the amount of maintenance.
Therefore, you should file a revision application and seek adjustment of maintenance amount as per the current circumstances of the case. Your case is genuine and you’ll get justice from the court. Adduce relevant documents about your income and health expenses. Those documents will help the court to adjust the amount of maintenance.
If the bridegroom is 21 years and bride is 22 and they want to marry against the consent of their parents. What will be the cause for this? Can they marry?
Section 5 of the Hindu Marriage Act does not forbid a marriage if it has been solemnised against the consent of parents. If the age of the bridegroom is above 21 years and bride is above 18 years they can solemnise their marriage with their own consent. The consent of parents is not necessary or mandatory for such a marriage.
Consent of parents is not mandatory
Right to choose a life partner is now a fundamental right. The Supreme Court has held in the Shakti Vahini Case that the right to marry a person of one’s choice is a fundamental right under Article 21, 19(1)(a) and 14 of the Constitution of India.
Recently the Supreme Court has held that the consent of the family or community or clan was not necessary when two adults agree to marry each other.
In the Laxmibai Chandaragi case the Supreme Court has opined that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice.
In Asha Ranjan v. State of Bihar (2017) 4 SCC 397; the Supreme Court has held that the right or choice is not is not expected to succumb to the concept of “class honour” or “group thinking”. Justice K.S. Puttaswamy v. Union of India once again the apex court opined that the autonomy of an individual inter alia in relation to family and marriage is integral to the dignity of the individual.
It is thus evident that adult men and women have the right to solemnise their marriage as per their wish and consent of parents is not mandatory at all. You can solemnise marriage without the consent of parents. If your parents initiate any false criminal proceeding like FIR for abduction then you should approach the High Court. The High Court will quash such proceeding on the ration of Lata Singh v. State of U.P., (2006) 5 SCC 475. You will get proper police protection if the threats are imminent.
I want to solemnise marriage but age of bridegroom is below 21 years. We are in a relationship for past 4 years. And we decide to get married. But the girl's family doesn't allow her to do so. They First emotionally black mailed her. But she doesn't listen to them. And the next day she tried to escape with me and get married. But their parents make us fake promises that please come, we will do your marriage, please come soon. And the girl trusted her parents and went back home with me.
They told us to call your parents too. We will have a conversation with them about how to do this. And that they told us that they will solemnise our marriage after diwali. For my happiness my parents accept our relationship. But the girl's father cheated the next day. He called me and my father to do a talk and then some relatives shouted at us to go back home.
We will not do marriage in another caste, and when the girl argues they start beating her with a belt.. Now they have locked her in a room and taken her cell phone also. My Name is XXX I 'm 20 years old, and I'm a defence personnel. Her name is XXX, She is 21 years old. She is a "Baniya". Please Help. What are the things I can do ? What are my rights?
Bridegroom’s age is below 21 years: You are incompetent to solemnise marriage under the Hindu Marriage Act. According to Section 5 of the Hindu Marriage Act the bridegroom must attain the age of twenty one years at the time of marriage. Currently your age is twenty years therefore, you cannot solemnize marriage.
Offence under Section 18 of the Hindu Marriage Act
If you solemnise marriage you will commit an offence under Section 18 of the Hindu Marriage Act. That offence is punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both. However it does not render your marriage void but you will face criminal charges.
Conditions of a valid marriage
You should wait for one year then solemnise marriage according to the Hindu Marriage Act. Because you will become capable of fulfilling all the conditions of a valid Hindu Marriage.
You both are Hindus hence, you can solemnise marriage with your own consent. Section 5 of the Hindu Marriage Act does not forbid such a marriage which is solemnised against the consent of parents.
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-
- Neither party has a spouse living at the time of the marriage;
- At the time of the marriage, neither party- a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or c) has been subject to recurrent attacks of insanity;
- The bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
- The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
- Parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.
My tenant has not been paying rent since November 2019. I am a 68 year old person from Visakhapatnam. I gave my shop on rent to a person for tailoring. He paid the rent for the last time in Aug 2019 through phonepe. From Nov 2019 he stopped paying current bills also. So I tried to call him to warn him about these things but he didn't pick up the phone then. So I locked the shop in Feb 2020 having no other option and sent him an sms to meet me, vacate the shop and pay the outstanding rent.
He then came to and blackmailed me that if I didn't give him the shop back. He would harass me through the police. As I didn't give him the shop. He filed a wrong complaint against me in the police station in July 2020. But police told him to pay rent first and then do anything in court or in the presence of elders.
Suddenly on 28th Dec 2020 at 2 am he tried to break the lock of the shop. When I heard the noise, called the police and video recorded it and next day filed a complaint against him on which no action was taken till now. I am losing 2 yrs of rent because of him. I have no other sources of income and my children are still young. Please tell me how I can evict him and collect my outstanding rent of 2 yrs?
First of all you should file an FIR for the offence of house breaking under section 456/511 of the Indian Penal Code. He has committed the said offence when he tried to break the lock. This is a cognisable offence hence, you can record the First Information Report in the nearest police station.
You should file a civil suit for the eviction of the tenant because he has not been paying the rent since November 2019. Before filing the civil suit you should send a demand notice to pay the rent. Demand notice is a condition precedent for filing of civil suit for the eviction of the tenant who has defaulted in paying the rent.
