Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

Petitioner prayed that proper Rules be framed for making provisions for registration of marriage of people of Sikh community.

State submitted that in the State, under the Uttarakhand Compulsory Registration of Marriage Rules, 2012, formulation of an arrangement/mechanism for the purposes of facilitation of proof of marriage ceremony (commonly known as Anand Karaj) customary among the Sikhs, had been proposed.

The Court considered it appropriate that necessary Rules must be framed by the State of Uttarakhand for registration of marriage of people of Sikh community under the Anand Marriage Act, 1909.

The Court directed the Chief Secretary, State of Uttarakhand to take appropriate steps for putting the aforesaid proposal before the Cabinet and after approval of the Cabinet also take steps for publishing the same in the Gazette and place the same before the Legislative Assembly.[Amanjot Singh Chadha v. State of Uttarakhand, 2022 SCC OnLine Utt 228, decided on 23-03-2022]


For State: Mr B.S. Parihar


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: H.S. Thangkhiew, J. while hearing a revision application allowed the same and directed the lower court to deal with the entire process expeditiously immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC.

The revision application under Article 227 of the Constitution was filed to seek the supervisory jurisdiction of the Court to quash and set aside order dated 18-02-2020, passed by the Court of the Assistant to Deputy Commissioner, Ri Bhoi District, Nongpoh, in Execution Case 01 of 2019. Title Suit 4 of 2016 was instituted by the petitioners as plaintiffs before the Court of the Assistant to Deputy Commissioner in the course of proceedings resulted in a compromise.

Petitioners approached the Lower Court for execution of the compromise deed dated 04-07-2016, vide Execution Case 1 of 2019.

Counsel for the petitioner,  submitted that after the compromise had been arrived at, settling the disputes raised in the Title Suit, the same was reduced to writing, and was jointly presented before the Lower Court on 04-07-2016.

Petitioners submitted that comprise arrived in settling the disputes raised in the Title Suit and the same was reduced to praying for judgment decree and order to be passed by the Court based on the mutual settlement. Court examined the parties, and disposed of the suit by allowing and accepting the settlement arrived at 04-07-2016, but no formal decree was drawn up.

Respondents filed 2 objections on 24-09-2019 and 28-11-2019 on the same premise. Lower Court took up for consideration and disposed of the entire execution case by the impugned order dated 18-02-2020 by holding that there was no decree and that the party were to resolve their own disputes. Petitioners on examination of the records, pointed for consideration before the Court. It was with the correctness of the impugned order which had rejected the application for execution filed under Order 21 Rule 15 of the CPC by the petitioner/plaintiff.

Court drew no decree and the petitioner was required to file an application under Section 151 read with Order 20 Rule 6-A CPC, before the lower Court for drawing the decree in accordance with the order dated 04-07-2016. Consequently, the impugned order dated 18-02-2020 was set aside and quashed. The Court opined that the entire process should be dealt expeditiously by the lower court immediately on receipt of the application under Section 151 read with Order 20 Rule 6-A CPC which shall be filed by the petitioner within a period of 4 weeks.[Delican Shadap v. Dal Nongtri, 2022 SCC OnLine Megh 33, decided on 03-03-2022]


For the Petitioner/Appellant(s) : Mr S.R. Lyngdoh

For the Respondent(s) : None


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: H. S. Thangkhiew J. dismissed the petition and affirmed that the petitioner was not eligible to avail family pension.

Petitioner’s father was an employee under the State and retired on 31-08-1997. Her younger brother and her husband expired in the year 2002. She became solely dependent upon her father who also expired in 2015, followed by her mother in 2016. Petitioner in these circumstances, made representation to the competent authorities for the grant of family pension to her, being a widowed daughter of the deceased pensioner under the scheme extended vide O.M. dated 23-02-2010, issued by the Finance Department, Government of Meghalaya which was however rejected.

Memorandum stated that the revised provisions shall apply to the State Govt. employees who retired/died in harness after 01-01-2007 and contains provisions for calculation of pension.

Rule 48, provides that an unmarried/widowed/divorced daughter, would be entitled to family pension and that a person would be entitled for family pension, only after other eligible family members in the first category have ceased to be eligible to receive it.

It was submitted that if a person retires in 2007 at the age of 58 years, he would attain the age of 80 only in the year 2029, effectively ignore the case of existing petitioners who have attained the age of 80 years or above, on or after 01-01-2007.

Formal amendments to the Meghalaya Civil Services (Pension) Rules 1983, were made and the Meghalaya Civil Services (Pension) Fifth Amendment Rules 2010, came into being on 04-11-2010. By the said amendment rules, Rule 1(2) has also provided that the rules shall be deemed to have come in force on 01-01-2007.

Fixation of cut-off date, though in this case, may seem unjust as the petitioner has been deprived of the benefit allowed by the amended rules, but the law as it prevails, has held it to be, not violative of Article 14 of the Constitution.

Court opined that affidavit of the State had clearly outlined the manner in which cut-off date arrived, and the process was undertaken by the Executive in this regard. The said decision is a reasoned policy decision, cannot be said to be arbitrary or violative of Article 14 of the Constitution. Petitioner thus was not eligible to avail family pension; she would be governed by the original Rule 48 of the Meghalaya Civil Services (Pension) Rules of 1983. The writ petition was dismissed.[Anindita Bhowmik v. State of Meghalaya, 2022 SCC OnLine Megh 27, decided on 25-02-2022]


Mr S. Sen, Adv. with Ms S. Shallam, Advocate for Petitioner

Mr N.D. Chullai, AAG with Ms I. Lyngwa, Advocate for the Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Manoj Kumar Tiwari and Alok Kumar Verma, JJ., decided on a petition which was filed seeking a writ order or direction in the nature of mandamus or any other writ declaring the Rule 6 of the Uttarakhand Subordinate offices clerical cadre employees (direct recruitment) Rule, 2004 as well as the amendment made thereto by virtue of notification dated 13.8.2013 so far it provides the 10% quota for Intermediate pass class IV employees and 15% Quota for high school pass class IV employee, as null and void.

Petitioners were Group-D employees serving in School Education Department of Uttarakhand Government. As per applicable service Rules, Group-D employees are eligible for promotion against Group-C posts in ministerial cadre. They were aggrieved by the part of proviso to Rule 6, which carved out a separate quota for promotion to High School pass employees within the 25% quota available to persons serving on Group-D posts. Compartmentalization of vacancies based on academic qualification had been challenged by the petitioners as arbitrary and unjust.

Counsel for the petitioners submitted that this amounted to artificial classification amongst Group-D employees, who constituted a homogeneous class of employees.

The court was of the opinion that challenge thrown by petitioners to proviso to Rule 6 of the aforesaid Rules was without any substance.

In Government service, conditions of service are determined by statutory rules framed under proviso to Article 309 of the Constitution and in exercise of its rule making power, State Government can amend or repeal the service rules, thereby altering the conditions of service. A Government servant does not have a vested right of promotion and the only right he has, is right to be considered for promotion in terms of the service rules.

The question that whether Group-D employees serving in Education Department can be further classified based on their academic qualification according to the courts had been decided in V. Markendeya v. State of A.P.,(1989) 3 SCC 191 where it was held that differentiation amongst graduate and non-graduate supervisors for the purpose of pay scale is not violative of Article 14 and 16 and also in the case of Government of Andhra Pradesh v. Dilip Kumar, (1993) 2 SCC 210 where Supreme Court had upheld classification on the basis of higher educational qualification in the matter of promotion.

The Court finally directed the respondents to determine the number of vacancies available for promotion to High School pass candidates and to hold promotion exercise for supplying such vacancies from eligible candidates. If eligible candidates were not available for supplying such vacancies, then petitioners may be considered for promotion against such vacancies.[Devendra Singh Bora v. State of Uttarakhand, 2021 SCC OnLine Utt 1256, decided on 08-10-2021]


Advocates before the Court:

For the petitioners: Mr. Pradeep Kumar Chauhan, Mr. Ganesh Kandpal, Mr. Vinay Kumar and Mr. M.S. Bhandari, Advocate holding brief of Mr. Alok Dalalkoti

For the State: Mr. Pradeep Joshi

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y Chandrachud* and B. V. Nagarathna, JJ., had set aside the impugned interim order of Madras High Court holding it to be an attempt to re-write Rule 29(4) of the Copyright Rules 2013. The Bench remarked,

“The interim order converts the second proviso into a “routine procedure” instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out.”

A few broadcasters had approached the Madras High Court to challenge the validity of Rule 29(4) of the Copyright Rules 2013 on the ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is ultra vires Section 31D of the Act. The High Court, by its interim order had held that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is “apparently onerous”. Consequently, it directed that the petitioners before it may be permitted to resort to the second proviso to Rule 29(4) as a “routine procedure”, instead of an exception, subject to the duration of the ex post facto reporting being enlarged to fifteen days.

It was in the above backdrop that the instant appeal was initiated in the Supreme Court on the ground that the impugned interim order had the effect of re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(cD) of the Copyright Act 1957.

Statutory Mandate

By the Copyright Amendment Act 2012, Parliament incorporated the provisions of Section 31D. Under sub-section (1) of Section 31D, a broadcasting organization which is desirous of communicating to the public by way of a broadcast or performance of a literary or musical work and sound recording which has already been published, may do so subject to compliance with the provisions of Section 31D. Section 31D(2) incorporates five requirements, namely:

  • a prior notice;
  • in the manner prescribed;
  • of the intention to broadcast the work;
  • stating the duration and territorial coverage of the broadcast; and
  • payment to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.

Rule 29. Notice to owner for communication to the public of literary and musical works and sound recordings.—“(1) Any broadcasting organisation desirous of communicating to the public by way of broadcast or by way of performance of a published literary or musical work and sound recording under sub-section (1) of Section 31-D shall give a notice of its intention to the owner of the copyright and to the Registrar of Copyrights before a period of five days in advance of such communication to the public and shall pay to the owner of the copyright, in the literary or musical work or sound recording or any combination thereof, the amount of royalties due at the rate fixed by the Board in this regard:

Provided further that in case of communication to the public by way of broadcast or by way of performance of any published literary or musical work and sound recording or any combination thereof, in unforeseen circumstances, the notice shall, be given within twenty-four hours of such communication to the public:”

Contentions Raised

The appellants had challenged the interim order on the following grounds:

  1. By the interim order, the High Court re-wrote Rule 29(4), which is impermissible, in any event at the interim stage;
  2. The validity of Rule 29(4) was yet to be adjudicated upon and a presumption would attach to the constitutionality of both – the Rules and the Statute;
  3. There was no challenge to the validity of Section 31D in terms of which Rule 29 had been framed;
  4. The High Court had, in the course of its interim order, extended it only to the petitioners before it and to the broadcasters who had been impleaded as parties, as a result of which the pan-India operation of the Rule was left in the realm of uncertainty.

Observation and Analysis

Observing that the High Court had substituted the provisions of Rule 29(4) with a regime of its own, which was made applicable to the broadcasters and the petitioners before it, the Bench referred to the decision of the Constitution Bench in In Re: Expeditious Trial of Cases Under Section 13 138 of NI Act 188, wherein the Court had emphasized that, “the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe.”

Reiterating that the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language, the Bench expressed,

“Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft.”

Therefore, the Bench held that the High Court had entered the forbidden domain of legislative draft as it had held the broadcasters down to the requirement of prior notice, it had even modified the operation of Rule 29 by stipulating that the particulars which were to be furnished in the notice may be furnished within a period of fifteen days after the broadcast.

Hence, the Bench was of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Holding such exercise impermissible, the Bench expressed caution that it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.

Accordingly, the appeals were allowed and the impugned interim order was set aside.

[Saregama India Ltd. v. Next Radio Ltd., 2021 SCC OnLine SC 817, decided on 27-09-2021]

____________________________________________________________________________________________

Report by: Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

____________________________________________________________________________________________

Counsels:

For the Appellants: Sr. Advocate Mukul Rohatgi and Sr. Advocate Akhil Sibal,

For the Respondents: Sr. Advocate Navroz Seervai and Sr. Advocate Neeraj Kishan Kaul


*Judgment by: Justice Dr. Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Legislation UpdatesRules & Regulations

On July 14, 2021, the Jharkhand Government has issued the Draft Code on Wages (Jharkhand) Rules, 2021. The Rules provide 9 Chapters further divided into 56 sections.

Key features of the Rules

  1. Manner of calculating minimum rate of wages: Minimum rate of wages shall be fixed on the day basis keeping in few of following criteria:
  • The standard working class family which includes a spouse and two children apart from the earning worker an equivalent of three adult consumption units;
  • a net intake of 2700 calories per day consumption unit; 66 mtrs cloth per year per standard working class family;
  • housing rent expenditure to constitute 10 percent of food and clothing expenditure.
  • fuel, electricity and other miscellaneous items of expenditure to constitute 20 percent of minimum wage;
  • expenditure for children education, medical requirement, recreation, and expenditure on contingencies to constitute 25 percent of minimum wages;
  • When the rate of wages for a day is fixed, then, such amount shall be divided by eight for fixing the rate of wages for an hour and multiplied by twenty-six for fixing the rate of wages for a month and in such division and multiplication the factors of one-half and more than one-half shall be rounded as next figure and the factors less than one-half shall be ignored.

2. Number of hours of work which shall constitute a normal working day shall be 9 hours.

3. An employee shall be allowed a day of rest every week which shall ordinarily be Sunday, but the employer may fix any other day of the week as the rest day for any employee or class of employees.

  • Any such employee shall not be required or allowed to work on the rest day unless he has or will have a substituted rest day for a whole day on one of the five days immediately before or after the rest day.

4. Where an employee in an employment works on a shift which extends beyond midnight then:

  • a holiday for the whole day means a period of twenty four consecutive hours beginning from the time when his shift ends; and
  • the following day in such case shall be deemed to be the period of twenty-four hours beginning from the time when such shift ends, and the hours after midnight during which such employee was engaged in work shall be counted towards the previous day.

5. The longer wage period for the purpose of minimum rate of wage shall be by the month.

6. The State Government shall fix the minimum wage not below the Floor Wages so fixed by the Central Government.

Legislation UpdatesRules & Regulations

Bar Council of India Legal Education (Post-Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education), Rules, 2020

 The said Rules have been notified in light of Sections 7(1)(h), (i); (ia); (ib); (ic); (2)(b); (c); 15(1); 49(1)(af); (d); (e) with a view to strengthen legal education at each level of undergraduate, post graduate, legal research, technology & court management, continuing legal education and professional and clinical skill development courses conducted off-line and on-line.

♦ Chapter-I of the said Rules consists of the General Provisions under which Definitions and the Qualification requirement of Faculty members are covered.

♦ Chapter-II is about the Post Graduate Degree Course in Law.

Under Chapter two a very significant point has been highlighted under Rule 6 which states that One Year Master Degree to be abolished.

A Master Degree Program in Law of one year duration introduced in India in 2013(as per notification) by the University Grants Commission shall remain operative and valid until the Academic Session in which these Regulations are notified and implemented but not thereafter at any University throughout the country.

A Master degree in any specialized branch of Law offered in the Open System to any graduate, such as Business Law or Human Right, or International Trade Law without having LL.B./BA.LLB as the requisite entry-level qualification shall not be designated as Master’s Degree in Law (LL.M.) but can be designated in any other manner attracting the immediate attention of anyone that such a degree holder may not be a Law graduate.

Master’s degree in Business Law may be designated as (MBL); Master’s in Governance and Public Policy as (MGPP), Master’s in Human Rights as (MHR), Master’s in Industrial Laws (MIL) etc., which cannot be considered equivalent to LL.M.

All India Common Entrance Test

Bar Council of India (either directly or through its Trust) may annually conduct a Post Graduate Common Entrance Test in Law (PGCETL) for admission in Master Degree course in Law in all Universities and until the PGCETL is introduced the present system followed by respective Universities shall be followed.

♦Chapter III consists of Rules with regard to Educational upgradation and efficiency enhancement and Professional Education.

Bar Council of India through the B. C. I. Trust shall introduce two professional efficiency enhancement continuing education courses only for Advocates who are enrolled with any State Bar Council.

Para legal/Court management Courses

 BCI Trust may conduct para-legal (including land survey work, notarization, registration and all other judicial work of court and lawyers’ chamber management) and technology & Court Management courses of suitable duration on-line and/or off-line to facilitate para-legal works and court-management to cover updated education and training.

♦ Chapter IV comprises Rules for Equivalence and Miscellany

 Equivalence of Post Graduate Degree obtained from a Foreign University

 (1) In order to qualify for test of equivalence of LL.M. degree obtained from any foreign University the Masters’ Degree in Law course must have been taken only after obtaining the LL.B. degree from any foreign or Indian University which is equivalent to the recognized LL.B. degree in India.

(2) LL.M. degree obtained from a Foreign University, which has been prosecuted without an equivalent LL.B. degree shall not be equivalent to Indian LL.M. degree such as follows:

(i) LL.B. is a three/four year first undergraduate course in which case One year or Two years of study in LL.M. in the foreign University forms part of the LL.B. program to consider the LL.B. with or without a Bridge course as equivalent to Indian LL.B.

(ii) LL.M. is obtained without having any equivalent LL.B.

(3) One year LL.M. obtained from any foreign University is not equivalent to Indian LL.M. degree. However, one year LL.M. degree obtained after an equivalent LL.B. degree from any highly accredited Foreign University may entitle the person concerned to be appointed as a visiting professor in an Indian University for at least one year so as to consider such One year LL.M. degree with one-year teaching experience as a Visiting Faculty/internee faculty/clinical faculty the Master degree obtained on one year term may be considered equivalent.

→ Read the detailed rules here: NOTIFICATION


Bar Council of India

[Notification dt. 02-01-2021]

Legislation UpdatesRules & Regulations

G.S.R. 571(E).—In exercise of the powers conferred under sub-sections (1), (2), (3), (4), (8), (9), (10) and (11) of Section 125 and sub-section (6) of Section 124 read with Section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules, further to amend the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016, namely –

1. (1) These rules may be called the Investor Education and Protection FundAuthority (Accounting, Audit, Transfer and Refund)Second Amendment Rules, 2019.

(2) The provisions of these rules, Other than rule 6 (i), 6 (iv), 6 (v), 6(vi), 6(vii) and 6 (viii), shall come into force with effect from the 20th day of August, 2019.

(3) The provisions of rule 6 (i), 6 (iv), 6 (v), 6(vi), 6(vii) and 6 (viii), shall come into force with effect from the 20th day of September, 2019.

* Please follow the link to read the detailed amendments notified by the Government: NOTIFICATION


Ministry of Corporate Affairs

[Notification dt. 14-08-2019]

Legislation UpdatesRules & Regulations

G.S.R. 360(E)—In exercise of the powers conferred by Sections 6, 8 and 25 of the Environment (Protection) Act, 1986 (29 of 1986) read with sub-rule (4) of Rule 5 of the Environment (Protection) Rules, 1986, the Central Government, after having dispensed with the requirement of notice under clause (a) of sub-rule (3) of Rule 5 of the said rule in public interest, hereby makes the following rules further to amend the Bio-Medical Waste Management Rules, 2016, namely:—

1. (1) These rules may be called the Bio-Medical Waste Management (Second Amendment) Rules, 2019.

    (2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Bio-Medical Waste Management Rules, 2016 (hereinafter referred to as the said rules), in Rule 4, in clause (d), the following Explanation shall be inserted, namely:-

“Explanation.- For removal of doubts, it is hereby clarified that the expression “Chlorinated plastic bags” shall not include urine bags, effluent bags, abdominal bags and chest drainage bags.”.

3. In Schedule III to the said rules, against serial number 3, in column (3), in item (viii), for the brackets and letters
“(viii)”, the brackets and letters “(vii)” shall be substituted.


[Notification dt. 10-05-2019]

Ministry of Environment, Forest and Climate Change

Legislation UpdatesNotifications

EFIs may participate in commodity derivatives contracts traded in stock exchanges in IFSC subject to the following conditions:-
  •  The participation would be limited to the derivatives contracts in non-agricultural commodities only,
  •  Contracts would be cash settled on the settlement price determined on overseas exchanges, and
  •  All the transactions shall be denominated in foreign currency only.
The Exchanges are advised to:
i. take steps to make necessary amendments to the relevant bye-laws, rules and regulations for the implementation of the same.
ii. bring the provisions of this circular to the notice of the members of the exchange and also to disseminate the same on their website.
This circular is issued in exercise of powers conferred under Section 11 (1) of the Securities and Exchange Board of India Act, 1992, to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.
SEBI/HO/MRD/DRMNP/CIR/P/2019/39
[Circular Dt. 18-03-2019]
Securities Exchange Board of India
Legislation UpdatesRules & Regulations

G.S.R. 210(E)— In exercise of the powers conferred by clause (da) and clause (f) of sub-section (2) of Section 29 of the Securities and Exchange Board of India Act, 1992, (15 of 1992), the Central Government hereby makes the following rules further to amend the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, namely:-

1. Short title and commencement— (1) These rules may be called the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Amendment Rules, 2019.

                   (2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995 (hereinafter referred to as “the said rules”), in the opening para, for the words, brackets, figures and letter “clause (da) of sub-section (2) of Section 29”, the words, brackets, figures and letter “clause (da) and clause (f) of sub-section (2) of Section 29” shall be substituted.

3. In the said Rules, in Rule 1, in sub-rule (1), the words “by Adjudicating Officer” shall be omitted.

4. In the said rules, in Rule 2, in clause (c), for the word, figures and letter “Section 15-I”, the words, brackets, figures and letters “sub-section (4A) of Section 11 or sub-section (2) of Section 11B or Section 15-I of the Act” shall be substituted.

5. In the said Rules, in Rule 4, –

(i) in sub-rule (1), after figures and letter “15E,” at both the places where it occurs, the figures and letters “15EA, 15EB,” shall be inserted;

(ii) for the words “adjudicating officer”, wherever they occur, the words “the Board or the adjudicating officer” shall be substituted.

6. In the said Rules, in Rule 5, –

(i) for the words “adjudicating officer”, wherever they occur, the words “the Board or the adjudicating officer” shall be substituted;

(ii) for the word and figures “Section 15-I”, wherever they occur, the words, brackets, figures and letters, “sub-section (4A) of Section 11 or sub-section (2) of Section 11B or Section 15-I of the Act” shall be substituted.

(iii) after sub-rule (4), the following sub-rule shall be inserted, namely:-

“(5) The Board or the adjudicating officer who has passed an order, may rectify any error apparent on the face of record on such order, either on its own motion or where such error is brought to his notice by the affected person within a period of fifteen days from the date of such order.”

Explanation: For the purpose of this rule, “error apparent on the face of record” shall mean any typographical errors that creep in inadvertently into the order and includes such other errors that do not require a long drawn out reasoning process to ascertain such a mistake.”

7. In the said rules, in Rule 6, for the words “adjudicating officer”, the words “the Board or the adjudicating officer” shall be substituted.

[F. No. 5/05/FM/2017]

Ministry of Finance

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Bench of Manojit Bhuyan, J. disposed of a writ petition filed for leave encashment benefit with direction to the respondent authority to make an assessment of the number of days standing at the credit of the petitioner towards leave encashment benefits.

Petitioner prayed for a direction to the respondent authority to make a cash payment in lieu of unutilized earned leave standing at his credit until the date of his retirement on superannuation. It was stated that as per rules of the Gauhati University, he was entitled to leave encashment of the unutilized earned leave for 300 days.

The Court held that leave encashment benefit could be extended only for the maximum permissible 300 days. What would be the cash benefit for the number of days of unutilized earned leave must require an evaluation/calculation by the authorities concerned. It cannot be automatically for 300 days altogether. [Bishnu Chakraborty v. Gauhati University, 2019 SCC OnLine Gau 868, Order dated 18-02-2019]

Legislation UpdatesRules & Regulations

G.S.R. 108(E)— In exercise of the powers conferred by sub-section (1), read with clauses (i), (j), (jj), (jjj) and (k) of sub-section (2) of Section 73 of the Prevention of Money-laundering Act, 2002 (15 of 2003), the Central Government hereby makes the following rules further to amend the Prevention of Money- laundering (Maintenance of Records) Rules, 2005, namely:—

1. (1) These rules may be called the Prevention of Money-laundering (Maintenance of Records) Amendment Rules, 2019.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Prevention of Money-laundering (Maintenance of Records) Rules, 2005 (hereinafter referred to as the said rules), in rule 2, in sub-rule (1),-

  1. (i)  for clause (aaa), the following clause shall be substituted, namely:-‘(aaa) “Aadhaar number” shall have the meaning assigned to it in clause (a) of Section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (18 of 2016);’
  2. (ii)  clauses (aac) and (aad) shall be omitted;
  3. (iii)  in clause (d),

    1. (a)  after the words “driving licence,”, the words “proof of possession of Aadhaar number” shall be inserted;
    2. (b)  after the third proviso, the following proviso shall be inserted, namely:-“Provided also that where the client submits his proof of possession of Aadhaar number as an officially valid document, he may submit it in such form as are issued by the Unique Identification Authority of India;”Please refer the link for detailed notification: NOTIFICATION

Ministry of Finance

[F. No. P.12011/24/2017-ES Cell-DoR]

Legislation UpdatesRules & Regulations

G.S.R. 85(E)—In exercise of the powers conferred by clause (b) of sub-section (2) of Section 156 of the Indo-Tibetan Border Police Force Act, 1992 (35 of 1992), and in supersession of the Indo-Tibetan Border Police Force, Armourer Cadre (Group ‘B’ & ‘C’ posts), Recruitment Rules, 2010, except as respects things done or omitted to be done before such supersession, the Central Government hereby makes the following rules regulating the method of recruitment to Group ‘B’ and ‘C’ posts in Armourer Cadre in Indo-Tibetan Border Police Force, namely:—

1. Short title and commencement—(1) These rules may be called the Indo-Tibetan Border Police Force, Armourer Cadre (Group ‘B’ and ‘C’ posts), Recruitment Rules, 2019.

     (2) They shall come into force on the date of their publication in the Official Gazette.

2. Application—These rules shall apply to the posts specified in column (1) of the Schedule annexed to these rules.

3. Number of post, classification and level in the pay matrix—The number of said post, their classification and level in the pay matrix attached thereto shall be as specified in columns (2) to (4) of the said Schedule.

4. Method of recruitment, age-limit and other qualifications, etc.—The method of recruitment, age limit, qualifications and other matters relating thereto, shall be as specified in columns (5) to (13) of the aforesaid Schedule.

5. Disqualification— No person, —

     (a) who has entered into or contracted a marriage with a person having a spouse living; or

      (b) who, having a spouse living, has entered into or contracted a marriage with any person, shall be eligible for        appointment to the said post :

Provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operation of this rule.

6. Medical Fitness—Notwithstanding anything contained in these rules, only those persons who are in medical category SHAPE-I, shall be eligible for appointment under the provisions of these rules.

Please follow the link for detailed notification: Notification

Ministry of Home Affairs

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Veerender Singh Siradhana, J. dismissed a civil writ petition filed by the petitioner against his transfer from Rajasthan State Consumer Dispute Redressal Commission, Jaipur to District Consumer Dispute Redressal Forum, Jaisalmer.

The petitioner was employed as a class IV employee in the Commission at Jaipur for last 24 years. By the impugned order, as many as six employees including the petitioner were transferred. Feeling aggrieved, the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal who directed the Commission to consider the representation of the petitioner. However, the Commission declined his representation. Aggrieved, the petitioner approached the High Court.

The High Court, while perusing the record, noted that the only grievance put forth by the appellant was that he had a son and four daughters, who were of marriageable age, and therefore, he ought to have been retained at Jaipur. Placing reliance on the Supreme Court decision in Gobardhan Lal v. State of U.P., (2004) 11 SCC 402, which dealt with the scope and extent of judicial review in matters of transfer of an employee, the High Court observed, by a catena of judgments it is now well settled that transfer is an incident of service. Unless transfer is effected in violation of any mandatory statutory rule or having adverse consequences on conditions of service, the same is not to be interfered with by the Courts as an Appellate Authority. In light of the discussion as mentioned herein, the Court declined to interfere with the impugned transfer order as passed by the Competent Authority. The petition was thereby dismissed. [Vinod Kumar Bairwa v.  Rajasthan State Consumer Dispute Redressal Commission, 2018 SCC OnLine Raj 1358, dated 29-5-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of V.K. Tahilramani, Acting CJ, and M.S. Sonak, J. dismissed a writ petition filed challenging the order of Maharashtra Administrative Tribunal (MAT) whereby the claim of the petitioner to be appointed as a peon in the office of Deputy Conservator of Forests was dismissed.

The petitioner had applied for the said post in pursuance of the advertisement issued by the respondents. The post was for the reserved category and the petitioner belonged to the Other Backward Classes. He obtained 90 marks in the written test equal to the marks secured by Respondent 4, who was finally appointed to the said post on the basis of higher qualifications. The petitioner challenged the appointment before the MAT, which was dismissed. Feeling aggrieved, the petitioner was before the High Court.

The High Court perused Rule 4(3) of Maharashtra Civil Services (Regulation of Seniority) Rules 1982, on which reliance was placed by the petitioner. The said Rule provides that if two persons were appointed on the same date, the person with the earlier date of birth would be placed at a higher position in the seniority list. On the same analogy it was contended that in case of candidates securing equal marks, the candidate with the earlier date of birth should be appointed. The Court held the contention of the petitioner to be misconceived as much as the said Rule pertains to the matter of seniority in service and could not be applied in the matter of appointment. Holding thus, the Court found no fault in the order impugned. Accordingly, the petition was dismissed. [Yogehsh H. Mhaskar v.  State of Maharashtra, 2018 SCC OnLine Bom 1157, dated 03-05-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Shampa Sarkar, J. dismissed a writ petition filed by a student of BA English (Honors), holding that it could not pass orders in violation of policies of educational bodies.

The petitioner was a student of BA English (Honors) Part I in the University of Calcutta. She appeared in Part I examination in which she failed. She applied for re-evaluation but the marks remained unchanged. Thereafter, she applied for production of her answer script to the Authority concerned; however, the same was not supplied to her. The petitioner sought an order from the High Court to be allowed to appear in Part II examination as a special case.

The High Court perused the record and found that the result of Part I exam was published in 2017. A copy of petitioner’s answer script was sought to be produced in January 2018. Thereafter, till May 2018, the petitioner did not take any step regarding inaction of the respondent. The High Court categorically observed that it cannot permit any candidate to sit in any examination if they are ineligible under the rules. Further, ‘the writ court sitting in judicial review, cannot pass any order in violation of the rules and policies of the educational bodies’. The examination rules stated that any candidate who had failed in Part I examination, will have to repeat the same exam. The petitioner did not have any vested right to appear in Part II examination. Moreover, the petitioner was sleeping over her right since January 2018. In such circumstances, the petition was dismissed. [Sangita Ganguly v. University of Calcutta, 2018 SCC OnLine Cal 2953, dated 23-5-2018]