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).
It is a complicated situation for me, I am a 40 year old lady. My husband was an abuser and we have legally divorced 6 years ago without any issues left. I left my hometown, came to Delhi to join a job and started staying with my brother who is never married and a confirmed bachelor. The situation evolved into a consensual relationship.
It is full of love and trust and now I am expecting a child at this age with my brother. Nobody has any knowledge about our relationship and assumes us as husband and wife. Given that no societal issues will arise, what is the legal status of our relationship? Can we safely put our names as parents in our child's birth certificate? Also can we get our relationship registered as a marriage?
Section 5 of the Hindu Marriage Act prohibits marriage between the prohibited relationship. Marriage with a real brother comes under the prohibited relationship therefore, such a marriage is null and void under Section 11 of the Hindu Marriage Act.
If he is not your real brother but comes under the “Sapind” then again such a marriage is null and void. In both conditions the court shall decree the marriage null and void upon the suit filed by any party to such a marriage.
Legal status of child
If a child is born out of such a wedlock, that child would have been legitimate if the marriage had been valid. A child if born in a marriage which is null and void under section 11, is legitimate under section 16 of the Hindu Marriage Act.
Marriage is a social bonding and birth is a natural phenomenon. How and when to take birth is not in the hands of a person and therefore, such a child cannot be deprived of proprietary benefits which he should have secured, if he would have been born within the valid wedlock of his father and mother.
Indubai Jaydeo Pawar and another v. Draupada alias Draupadi Jaydeo Pawar and other [2017 (4) ABR 525]
In Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others v. K. Devi and others 1996 AIR SCW 2337 the Hon’ble Supreme Court has held that a child born out of void marriage is legitimate for all practical purposes. The Supreme Court opined that:
In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.
That child will have proprietary rights as same as the child born out of a valid marriage. You can put your name to your child as his parents and get his birth certificate. But you cannot register your marriage because your marriage is void.
Appeal against dismissal of interlocutory application. My Grandparents had 7 children and among them 4 sons and 3 daughters. Joint family property is around 130 acres which was divided among all family members under Registered Family Settlement (RFS) in 1972 and my grandfather died in 1975 and grandmother died in 2010. Among 7 children, my mother is 6th one & who is a Minor during the time of such Registered Family Settlement. Out of a total 130 acres, only 6 acres of land was given to 3 daughters (2 acres for each daughter and the rest of them for 4 sons).
Apart from above stated properties, there were certain properties which were not covered under Registered Family Settlement and such properties were shared among only 4 sons (intestate properties) in 1985 as an unregistered partition deed without any consent/signature of any daughters. Further, there were certain properties which were purchased by one of the elder sons by utilising joint family funds without giving any share in such joint family funds to daughters.
At present, among 4 sons and their children, in 3 different courts, cases were filed for proper partition of such intestate properties which were divided among 4 sons through registered partition deed in 1985 without any consent of daughters. My mother filed IA to get implead in 2021 in July of last year and IS filed was dismissed stating that my mother received 2 acres share in a registered deed of 1972 and as such no more share in that but the order was silent with regard to intestate properties.
We filed a new case in respect of all intestate properties and now the case is pending before lower court. Further after filing a new case in jan 2022, further we filed an impleading application in the rest of the 2 cases of our joint family and in one case already interlocutory application is allowed and one more case its in objection stage and hope it will get allowed there also. But now the IA dismissed case got more of our properties and as such lower court lawyers also suggesting to file appeal to get impaled along with filing condonation for delay.
Kindly suggest can we go for a delay of more than 9 months and can file an appeal before HC now for getting impleading in IA dismissed case and if so later on we can club all three cases through district court and can run the case in one court.
Asked from: Andhra Pradesh
The ground upon which the court dismissed your interlocutory application is unsustainable. The pending case, in which you filed an interlocutory application, is related to the partition of property which is extraneous to the Registered Family Settlement Deed.
If the civil suit is filed (in which you had filed interlocutory application) towards the partition of property which was already divided in 1985 among the four brothers excluding the three sisters, then all the three sisters and their legal heirs are necessary party.
According to Order 1 Rule 10 of the code of civil procedure, the court can add any person as party at any stage of the proceedings, if the person whose presence before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the suit.
In Kasturi vs. Uyyamperumal and others [(2005) 6 SCC 733] the Supreme Court has held that: it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are:
- There must be a right to some relief against such party in respect of the controversies involved in the proceedings
- No effective decree can be passed in the absence of such a party.
In your case the dispute is relating to partition of property of deceased “A”. Hence all legal heirs of “A” are necessary parties. In absence of legal heirs as a party the court cannot pass an effective decree.
The court dismissed your IA because you got a share in the property “X” whereas the dispute is regarding to property “Y”. The said property “X” is extraneous to the said civil suit. Hence, the order becomes an erroneous order.
Your right is still alive hence, you can file an appeal against the dismissal of interlocutory application. The said order affects the rights of the party therefore it is appealable. You can file an appeal with the condonation of delay for the grant of interlocutory order.
Prosecution sanction by competent authority is granted after lapse of stipulated period mandated and specified under Section 19 of the P. C. amendment act 2018. Prosecution sanctioned not in three months is it valid? Whether the sanction is valid or invalid.? FIR No 03/2017 dt 27.2.2017. Final report dated 13.03.2019 for sanction is received by the sanctioning Authority on 30.04.2019. Mandated and specified period (including grace period) expired on 14.08.2019.
The PSO was ordered on 19.04.2021 and a copy of the same was served to the accused on 21.06.2021. Charge sheet is filed on 22.04.2022 in court of session. Court summons served on accused on 07.06.2022. The deemed sanction expires on 30.07.2019. Time limit to file charge sheet expired on 14.08.2019 as per the SC judgement in case Subramanian Swamy vs. Dr. Manmohan Singh & Another. Whether cognizance taken by court on delayed charge? Whether the PSO is valid? The PSO not following the stipulated period is invalid?
Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant unless the Central or the State Government, has accorded sanction.
There was no time limit for granting sanction prior to the amendment act 2018 coming into force. It is amended in pursuance of the guidelines issued by the Hon’ble Supreme Court in Dr. Subramanian Swamy vs. Dr. Manmohan Singh & Another [2012 Cri. L. J. 1519].
According to Section 19 of the Prevention of Corruption Act, the appropriate authority shall endeavour to convey the decision (sanction for prosecution) within three months from the date of receipt of proposal.
According to sub-section 3 of Section 19 (P. C. Act) no sentence, finding or order shall not be reversed only on the ground of absence of, any error, omission or irregularity in the sanction unless the opinion of the court a failure of justice has been occasioned thereby.
The Supreme Court in its judgement Dr. Subramanian Swamy [2012 Cri. L. J. 1519] mandated that “At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge-sheet/complaint in the Court to commence prosecution within 15 days of the expiry of the aforementioned time limit.”
You cannot challenge the validity of sanction on the ground that there is violation of provisions of Section 19 because it has been granted after the lapse of three months. Section 19 does not make it mandatory that in every case the appropriate authority must take its decision within the stipulated time period.
In P. P. Sharma vs State of Bihar [1992 Supp (1) SCC 222] the Supreme Court held that grant of sanction is an administrative act.
Delay in granting sanction does not vitiate the trial. Sanction is valid if the appropriate authority has granted after due consideration. Hence, delay in granting sanction cannot be treated as a sole ground which has vitiated the proceeding. If there is any defect in granting sanction then you can challenge it before the trial court.
In Nanjappa vs State of Karnataka [2015 AIR SCW 4432] the Supreme Court held that grant of proper sanction by a competent authority has been a sine quo non for taking cognisance of the offence.
I am a social worker and RTI activist. Since 2008 I have been active in seeking information pertaining to public importance. Many people have enmity because I have stopped their illegal business. They have threatened me to face dire consequences. Therefore, I have applied for security from the state government. The district level security committee has rejected my application. Is there any remedy when the district level security committee has rejected my application for providing security? Because I am still facing life threatening calls from these people. My advocate files an appeal before the division level committee but it is also dismissed. I want to challenge it in the High Court. Can I get any relief?
You have no right to file an appeal against the decision of the District Level Security Committee. The decision becomes final and there is no provision to appeal against the said decision. Therefore, your appeal has correctly been dismissed by the Division Level Committee.
You cannot get any relief from the High Court if you challenge the order of the Division Level Committee. In lack of provision to appeal there is no infirmity in the decision of the Division Level Committee.
In Akalu Ahir and others Vs. Ramdeo Ram [AIR 1973 SC 2145] Hon'ble the Supreme Court held that an appeal is a creature of statute and there is no inherent right of appeal. The same has been reiterated by the Hon’ble Supreme court in its umpteen judgments.
Hence, you will get no fruitful relief from the High Court. Instead, you should prefer a writ petition before the High Court under Article 226 and seek direction to provide police protection at the expense of the state. Protection of life and personal liberty is a fundamental right under Article 21 of the constitution.
In State of Uttar Pradesh v. Lalai Singh Yadav (1976) 4 SCC 213 the Supreme Court has held that the state is bound to secure the life of its citizens from threats and violence. Instead of challenging the decision of the Division Level Committee you should file a writ and demand security from the High Court.
My husband died during the service. At the time of his death in 2010, I was in shock therefore, could not apply for the compassionate appointment. One more thing is that my son was a minor and he was studying in class six. Now he became the major and completed his graduation. Hence, I applied for the compassionate appointment for my son in January 2022. But the government has rejected my claim of compassionate appointment due to delay. In this situation can my son get a compassionate appointment? Please guide me.
According to Section 5 of the U.P. Recruitment of Dependants of Government Servants Dying-in-harness, Rules, 1974, you have to make an application within five years from the date of the death of the Government servant.
The proviso of section 5 empowers the state government to relax the time limit for making such an application if the applicant had some satisfactory reasons for not applying within time.
Purpose of compassionate appointment
The purpose of compassionate appointment is to provide immediate relief to the bereaved family. Compassionate appointment is an exception to the general rule and no aspirant has a right to the compassionate appointment. Hence, you cannot claim compassionate appointment as a matter of right after twelve years since the death of your husband.
Sufficient reasons for delay
Section 5 of dying in harness rule 1974 provides that applicant should possess educational qualifications prescribed for the post or otherwise qualified for Government service. If you, as a wife of deceased government servant, did not possess the desired educational qualification or not fit for the government service then it is a valid reason for delayed application. Because you have no option except to wait till your son becomes eligible for government service.
Case law
In Vishal Saini v. State of U.P. and others [2021 (3) ADJ 74 (LB)] the applicant was minor at the death of his mother and there was no other person eligible for the compassionate appointment. He applied when he became the major and acquired the essential qualification. The Allahabad High Court has held that it is a satisfactory reason for delayed application and the applicant is entitled for the compassionate appointment.
You have applied for it after twelve years since the death of your husband. Therefore, in the application you should have to mention the reason for delay in making such an application.
How to challenge rejection order
If you have any satisfactory grounds for delay then you should file a writ petition in the High Court Allahabad for quashing of rejection order and direction for granting compassionate appointment. In devoid of satisfactory reasons for such an inordinate delay you are not entitled for the compassionate appointment under the dying in harness rule 1974.
Also read: Can married daugher elligible for compassionate appointment?
