Analysis on order for maintenance of wives, children and parents under the Code of Criminal Procedure - The Daily Guardian
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Analysis on order for maintenance of wives, children and parents under the Code of Criminal Procedure

The primary target is to forestall vagrancy by method of technique to give a rapid solution for the
individuals who are in torment. The object of the provision being to prevent destitution, it has been
found that what is really required by the wife is to maintain a way of life which is neither sumptuous
nor penurious, yet is unassumingly predictable with the status of the family.

Shivanshu Goswami

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INTRODUCTION

In today’s legally advanced society, every human being has the right to enjoy his or her rights purely on the grounds of being human which is provided by the rule of law. At the very outset, the right of any human being is based on mankind’s increasing demand for a civilised society. Despite the presence of many rights and laws to protect them, the reality is far from this truth, thereare provisions but to avail the same one has to suffer many hardships too .Women, children and elderly people are the most affected by this.

Though women, children and elderly people are considered to be most delicate and in much need of protection, these are in fact in the ones whose rights are being encroached everyday, everywhere in the world and their protection must be sought with paramount importance. The notion of ‘maintenance’ in India is covered both under Section 125 of the Code of Criminal Procedure, 1973 (Section 125) as well as the personal laws. This idea further gets its roots from Article 15(3) reinforced by Article 39 of the Constitution of India, 1950 (the ‘Constitution’).

In Indian law, the term ‘maintenance’ includes an right to food, clothing and shelter, being available to the wife, children and parents. It is a part of social justice and the natural duty of a man to maintain his wife, children and parents, when they are unable to maintain themselves. The phenomenon of maintenance is to prevent immorality and destitution and ameliorate the weak economic condition of women and children.

OBJECT OF SECTION 125

The procedures under these sections are not punishing in nature. The motive isn’t to rebuff an individual for disregard to keep up those whom he will undoubtedly keep up however to forestall vagrancy by upholding obligation by method of synopsis strategy to give an expedient solution for the individuals who are in trouble.

This is a common arrangement as it doesn’t make any differentiation between people having a place with various religions or stations and it has no relationship with individual laws of the gatherings. In Mohd Ahmed Khan v. Shah Bano Begum, the SC held that that the provisions of section 125 applies to all .

The rights of a destitute wives or a minor claiming preservation on this chapter and the treatments furnished are essentially civil right. The apex court defined section 125 of the code of criminal procedure, 1973 as a measure of social justice and specially enacted to protect women and children falls within the constitutional sweep of article 15(3) and reinforced by article 39.

The primary target is to forestall vagrancy by method of technique to give a rapid solution for the individuals who are in torment. The object of the provision being to prevent vagrancy and destitution, it has been found by us that what is really required by the wife is to maintaina way of life which is neither sumptuous nor penurious, yet is unassumingly predictable with the status of the family.

PURPOSE OF SECTION 125

The purpose of enacting section 125 of the code is not recognized or created as a right as such in favour of a wife. It is intended to ameliorate social problem which concerns destitution or vagrancy. “The primary object of the section is to prevent starvation and vagrancy of person and enable a discarded wife and a helpless child to get the much needed and urgent relief in one or the other form that is convenient to them’’.

ENTITLED PERSONS WHO CAN CLAIM AND GET MAINTENANCE

Section 125 of Cr.P.C deals with order of maintenance of wives, children and parents. Under The Cr.P.C., the following can claim and get maintenance.

1. Wife from her husband.

2. Legitimate or illegitimate minor child from his father.

3. His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain itself.

4. His father or mother from his son or daughter.

ESSENTIAL CONDITION FOR INVOKING SECTION 125

The right of a wife for maintenance is not an absolute right under the section 125 Cr.P.C, the very same is circumscribed by the fact that she is unable tokeep up herself and further the spouse having adequate methods ignored or wouldn’t look after her.

No doubt, there is a clear distinction between the locus standing or competence to file a petition for maintenance under section 125 of the code by any of the person illustrated in the section and there being entitled on merits to particular amounts of maintenance there under.

However the premise for both is essentially the existence or otherwise of their separate income or means of support besides other factors stipulated under this section. Legitimacy of the marriage with the end goal of outline continuing under segment 125 Cr.P.C is to be resolved based on the proof welcomed on record by the parties.

The standard of proof in the marriage in such proceedings is not as strict as is required in the trial of offence under section 494 IPC. If the claimant in the proceeding under section 125 of the code succeed in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can revert the presumption.

That the contention is not proved by leading necessary evidence. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the set procedure was complete as per the Hindu rights in. the proceeding under section 125Crpc.

WIFE

A woman is considered as the “wife” only if her marriage with the man is legally valid. The Kerala High court in- MambekkattuNANU v. VAS- ANTHA observed that it only on the strength of extended definition of the expression “wife” occurring in explanation (b) to section 125 of the code, that she is entitled to claim maintenance as a divorced wife.

In the case of CHANMU- NIYAV.VIRENDRA SINGH, the Supreme court has de- fined “wife” and includes even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, strict proof of marriage should not be the precondition of maintenance under section 125 of Cr. P.C.

In the case of SIRAJ- MOHMEDKHAN JANMO- HAMADKHAN V. HAFI- ZUNNISA YASINKHAN, the Supreme Court held that maintenance can be al- lowed to the wife when her husband is impotent.

A wife can guarantee and get upkeep from her better half in the accompanying conditions.

  1. If she is divorced by her husband.
  2. If she has obtained divorce from her husband.
  3. If she has not remarried.
  4. If she is not able to look after herself.

A wife cannot claim and get maintenance from her hus- band in the following condi- tions.

  1. She is living in adultery.
  2. She refuses to live with her husband without any valid reasons.
  3. She is living separately from her husband by mutual consent.

LIVE-IN RELATIONSHIP

Domestic relationship in the nature of marriage.

I n   t h e   c a s e   of  D. VELUSWAMY V. D.PATCHAIAMMAL, the Supreme Court observed that for a relationship in the nature of marriage-

a. The couple must hold themselves out to society as being akin to spouses.

b. They should be of legal age to marry.

  • They must be otherwise qualified to enter into legal marriage including being unmarried.
  • They must have lived together as per their will and held themselves out to the world as being a kin to spouses for a significant period of time. Further Supreme Court ruled that not all Live-In- Relationship will amount to a relationship in the nature of marriage to get the benefit the conditions mentioned by the court must be satisfied and this has to be proved by evidences.

LEGITIMATE OR ILLEGITIMATE MINOR CHILD

Male and female kids, independent of whether they are brought into the world inside or outside the legitimately substantial marriage of the dad and mother can guarantee Maintenance.

SON

‘Minor’ means a person who, under the provision of section 3 of the Indian Majority Act 1875 is deemed not to attained his majority I.E above the age of 18 years. Minor son (legitimate or illegitimate is entitled to get maintenance under section125 of Cr.P.C.

DAUGHTER

If minor daughter (legitimate or Illegitimate ) is unmarried, then she is entitled to get maintenance from her father and if she is married, then she is also entitled to get maintenance from her father but the Magistrate has to be satisfied that her husband has not essential and sufficient means for the maintenance of his minor wife.

In the case of SHAHBUDDIN V. STATE OF UP a minor daughter attaining majority during pendency of the application for maintenance was held entitled to maintenance up to the date of majority.

MOTHER AND FATHER

Both the mother and the dad, regardless of whether normal or assenting, can guarantee upkeep from any at least one of their youngsters. Girls are additionally obligated to pay support to their mom and father. A stage mother can guarantee support just in the event that she is widow and doesn’t have characteristic conceived girls or children.

In the case of PANDURANG BHAURAO PABHADE V. BABURAO DABHADE, Bombay High court has held that the father or mother can claim maintenance under section 125(1)(d) if he or she is unable to maintain himself or herself. But it is also important that if parents claim maintenance to their children, children must have sufficient mean to maintain their parents and yet neglects or refuse to maintain the father or mother.

SECTION 126 PROCEDURE: PERSONAL PRESENCE

Section 126(2) of the code provides as to under what circumstances the evidence can be recorded when the non-applicant is not personally present. With the permission of the court, the personal presence (including recording of evidence) of the court will proceed in the presence of with in sub section (2) of section 126 of the code shows to some extent that the non-applicant is bound to remain present on every hearing of the case (unless his presence is dispensed with) and it is this which may go to show that the proceeding under section 125 of the code to some extent, are of quasi-judicial nature.

It has been held in ARUN KUMAR V. CHANDAN BAI, that if the non-applicant is absent, but his counsel is present, evidence can be recorded in the presence of the counsel. Such recording of the evidence is quite legal.

JURISDICTION

In a proceeding under section 126 of the code of Court has jurisdiction to entertain the application where the applicant resides. The question regarding the jurisdiction of the Court to entertain the petition of the wife and daughter for maintenance in KUMUTHAN V. KAMNAPPAZ it was held that the husband was living within the jurisdiction of the court Trichy, the court at Trichy had jurisdiction to entertain the maintenance petition.

The Supreme Court observed that the court below have failed to take note of the provisions contained 126 of Cr.P.C. Under the said section it is permissible for proceeding under section 125 to be taken against a person in any district:

a. Where he is, or
b. Where he or his wife re- sides, or
c. Where he last resided with his wife or mother of an illegitimate child.
: Proof to be taken within the sight of an individual against whom support is to be requested.
: If an individual is readily keeping away from summons, at that point ex-parte proof is taken all things considered.

Also, recently Hon’ble Supreme Court in the case of Rajnesh V. Neha, 2020 SCC Online SC 903 The bench of Justice Indu Malhotra and R. Subhash Reddy, JJ has framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

The directions came in a case which revealed that the application for interim maintenance un- der Section 125 Cr.P.C. has remained pending before the Courts for seven years now, and there have been difficulties encountered in the enforcement of orders passed by the Courts, as the wife was constrained to move successive applications for enforcement from time to time.

WILFUL NEGLECT OF COURT: EX PARTE ORDER CAN BE PASSED

Under section 126 of the code the Magistrate is empowered to proceed to hear and determine the application under section 125 of the code, ex parte if he is satisfied that the person against whom the maintenance order is proposed to be made is wilfully avoiding service count of change in circumstance of pay, and consequently paying or receiving maintenance and party is entitled to move an application for alteration of the order of maintenance where there is such a change of circum- stances.

However, rise in the cost of living is certainly a change in circumstances and changes must be in circumstances themselves and not on proof already exist- ing circumstances themselves and not on proof of already existing circum- stances on record.

CONCLUSION

It is apparent from the ongoing Judicial decisions that the Indian courts have been dynamically liberal in choosing cases relating to support.

The bone of conflict any- way is whether a mistress can get qualified for get up- keep just from the factum of living with a wedded man, combined with the contest concerning whether the bigamy is lawfully al- lowable. While it shows up from the choices went under the individual laws that the equivalent might be conceiv- able, legal choices relating to Section 125 keep on main- taining the view that upkeep can be asserted uniquely by a legitimately married spouse.

It can be concluded that the need for protection for the rights of women and children and elderly people must undergo a revolutionary transition if we desire to live in a safe and secure world and seeking it should become one of our chief pursuits. Chapter 9 of the Code of Criminal Procedure is essential for the protection of the rights of the divorced wife and children and aged parents. It is made to protect them from unusual livelihood.

Maintenance is the duty of everyone who has sufficient means for the same, and our statues, as well as procedural laws, provides enough and clear cut measures that could be opted by the aggrieved to get maintenance.

Shivanshu Oswami is an Advocate at Allahabad High Court (Lucknow Bench).

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC

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The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.

FACTS OF THE CASE:

The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.

The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.

MUMBAI NCLT PROCEEDINGS

An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.

the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.

NCLT DECISION:

An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.

It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.

NCLT PROCEEDINGS:

An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.

The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.

Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.

The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.

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ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS

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The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.

The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.

An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.

Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.

on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.

The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.

the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.

It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.

The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.

It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.

Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.

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