Constitution of India, Article 226 -- Retail and Wholesale Drug License  -- Delay in submission of application beyond time granted by High court – Rejection on that ground – Justification of -- Ends of justice would be well served in case the applications that were filed by the petitioner beyond the time prescribed by High Court, are treated as being in compliance of order passed by High Court and adjudication thereof is done by the concerned Authority on merits of the same, after granting an opportunity of hearing to the respective parties – Petition allowed.

(Para 1-7)

Uttar Pradesh Municipalities Act, 1916 (II of 1916), Section 3, 4, 5 – Constitution of India, Article 243-Q – Inclusion in transitional area of Nagar Panchayat – Opportunity of hearing to effected partes -- Notification u/s 3 visits the persons living in the area notified with several civil consequences that may include taxation on properties, deprivation of benefits from government programs and schemes for village areas, etc. – Opportunity of making objections and /or suggestions after publication of draft notification and due consideration of the same by the Governor, are vital and mandatory requirements of the statute -- Each person resident of such area which is subject to such notification, is a stakeholder and is conferred a right by the Act, 1916 to make suggestions and objections -- Such suggestions and objections, when duly filed, have to be accorded due consideration by the Governor, and the State Government cannot brush aside an objection by means of a general denial on the ground that it was not received within the time provided in the draft notification where it has been demonstrated by the petitioner that the objection was duly dispatched and the delivery report of the postal department reflects its delivery to the addressee -- Objections of the petitioners were never considered – Impugned notification / order quashed.

(Para 11, 19, 20)

Constitution of India, Article 30(1) – Minority educational Institution – Legislative/ Administrative Power to change -- Article 30(1) can be classified as both an anti-discrimination provision and a special rights provision -- A legislation or an executive action which discriminates against religious or linguistic minorities in establishing or administering educational institutions is ultra vires Article 30(1).

-- Religious or linguistic minorities must prove that they established  the educational institution for the community to be a minority educational institution for the purposes of Article 30(1);

-- The right guaranteed by Article 30(1) is applicable to universities established before the commencement of the Constitution;

-- The right under Article 30(1) is guaranteed to minorities as defined upon the commencement of the Constitution. A different right-bearing group cannot be identified for institutions established before the adoption of the Constitution;

-- The incorporation of the University would not ipso facto lead to surrendering of the minority character of the institution. The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion. The Court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation; and

The following are the factors which must be used to determine if a minority ‘established’ an educational institution:

i. The indicia of ideation, purpose and implementation must be satisfied. First, the idea for establishing an educational institution must have stemmed from a person or group belonging to the minority community; second, the educational institution must be established predominantly for the benefit of the minority community; and third, steps for the implementation of the idea must have been taken by the member(s) of the minority community; and

ii. The administrative-set up of the educational institution must elucidate and affirm (I) the minority character of the educational institution; and (II) that it was established to protect and promote the interests of the minority community.

The view taken in Azeez Basha’ case AIR 1968 SC 662 that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled -- The question of whether AMU is a minority educational institution must be decided based on the principles laid down in the judgment.

(Para 160, 161)

Reference answered with majority opinion

Code of Civil Procedure, 1908 (V of 1908), Section 47, Order 21 -- Constitution of India, Article 227 – Expeditious disposal of execution petition -- Warrants of possession not executed -- Despite the Decree Holder (DH) being present, none came for execution of the warrants of possession -- Objections filed by the judgment debtor dismissed, however, second objections have been filed – Revision petition disposed off with a request to the Executing Court not to grant any unnecessary adjournments and to decide the execution application pending before it expeditiously and in accordance with law.

(Para 2, 3)

Constitution of India, Article 14 – Contractual employee -- Regularization of service -- Petitioner was appointed as a Driver in 2005 on contract basis -- Service of the petitioner was regularized in the year, 2012 -- Petitioner held entitled to regularization from the date of completion of one year contractual service after initial appointment, with all consequential benefits from the due date. Covered matter, Vikram Singh’s case 2023 :HHC: 13114 = (2023) Law Today Live Doc. Id. 19595.

(Para 7)

A. Code of Criminal Procedure, 1989 (XXIII of 1989), Section 482 – Constitution of India, Article 226 – Quashing of FIR/ Complaint – Duty of High Court -- Beyond holding that there are specific allegations, there is no other analysis by High Court -- Duty of the High Court, when its jurisdiction under Section 482 CrPC or Article 226 of the Constitution is invoked on the ground that the Complaint/ FIR is manifestly frivolous, vexatious or instituted with ulterior motive for wreaking vengeance, to examine the allegations with care and caution.

(Para 8)

B. Code of Criminal Procedure, 1989 (XXIII of 1989), Section 482 – Indian Penal Code, 1860 (45 of 1860), Section 498A, 323, 504, 506, 34 – Dowry case -- Quashing of FIR/ Charge-sheet – Husband not accused in criminal case -- While the husband institutes the civil suit, his wife has chosen to initiate criminal proceedings -- Interestingly, there is no reference of one proceeding in the other -- On 27.02.2013, the husband filed the Special Civil Suit against the three appellants, i.e. his father, stepmother and stepbrother seeking for a declaration that the property is ancestral in nature and that the father has no right to alienate or dispose of the property and also sought a declaration that he is entitled to use the trademark of the family business – Complainant/ wife filed the criminal complaint on 01.03.2013 alleging demand of dowry and threat by appellants that she and her husband will be denied a share in the property -- Provocation for the Complaint/ FIR is essentially the property dispute between father and son – FIR and Chargesheet quashed.

(Para 9, 18)

C. Code of Criminal Procedure, 1989 (XXIII of 1989), Section 482 – Indian Penal Code, 1860 (45 of 1860), Section 498A, 323, 504, 506, 34 – Dowry case -- Quashing of FIR/ Charge-sheet – Husband not accused in criminal case -- Allegations are vague, lacking in basic details -- The essence of the complaint is in the alleged threat to deprive the husband any share in the property with respect to which the husband has already filed the suit for declaration – In DV complaint identical allegations were examined in detail, subjected to strict scrutiny, and rejected as being false and untenable – The case is instance of abuse of criminal process and it would not be fair and just to subject the appellants to the entire criminal law process – FIR and charge-sheet quashed.

(Para 9-18)

D. Code of Criminal Procedure, 1989 (XXIII of 1989), Section 482 – Constitution of India, Article 226 – Quashing of FIR – Charge-sheet filed -- There is no prohibition against quashing of the criminal proceedings even after the charge sheet has been filed.

(Para 16)

Constitution of India, Article 226 – Promotion during pendency of criminal case -- DPC – Charge-sheet thereafter – Putting the result in sealed cover – Legality of -- Disciplinary/ criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court -- Sealed cover procedure is to be resorted to only after issuance of the charge-memo/ charge-sheet -- Pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure.

-- Charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent.

-- It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened.

Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened -- Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law -- The ‘Sealed Cover’ wherein the assessment of the respondent was considered by the DPC was opened in court -- Letter shows that the DPC assessed the respondent to be ‘FIT’ for promotion -- Consequential steps in light of the above recommendations shall follow.

(Para 24-29)

A. Constitution of India, Article 226 -- Writ petition – Suppression of facts -- Deliberate suppression of relevant particulars, which were adverse to the claim -- The filing of the writ petition was, therefore, nothing short of an abuse of process and did not warrant examination on merits and liable to be non-suited on this short ground -- If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition should be dismissed at the threshold without considering the merits of the claim. K.D. Sharma’s case (2008) 12 SCC 481 relied.

(Para 12)

B. Constitution of India, Article 226 -- Writ petition – Delay and laches -- Cause of action arose in the year 1973, when the Union of India and the Defence department allegedly stopped paying rental compensation – Writ petition in the year 2006 -- A writ petition should be preferred within reasonable time -- Writ petition dismissed.

(Para 13-18)

Constitution of India, Article 227 – Hindu Marriage Act, 1955 (25 of 1955), Section 13, 21B – Long pendency of Divorce petition – Speedy disposal – Mandate of -- Suit of year 2020 -- Direction issued to the Principal Judge, Family Court to decided case in accordance with law maximum within a period three months in light of Section 21-B of Act, 1955 after providing opportunity of hearing to opposite party and without granting any unnecessary adjournment to either of the parties.

(Para 2-4)

Constitution of India, Article 226 -- Mutation entry – Inaction of authority – Direction sought for respondent No.2 to take immediate decision on the mutation application moved by petitioner -- NOCs of other legal heirs have already been submitted by the petitioner in the year 2013 – Direction issued to respondent No.2 to take a decision on the mutation application by a reasoned and speaking order not later than three months.

(Para 3-6)

Constitution of India, Article 227 – Suit of year 2014 – Early decision of case – Petition to issue a direction to Court to decide Original Suit within a stipulated time – Direction issued to Civil Judge (Senior Division) to decide the suit in accordance with law, if possible within a period of nine months after providing opportunity of hearing to all concerned and without granting any unnecessary adjournment to either of the parties, if there is no legal impediment.

(Para 2-4)

A. Constitution of India, Article 14 – Regularization of employee – Retrospective regularisation at par with junior -- Merely because High Court or the Supreme Court had not fixed any date for grant of benefit of regularization to the petitioners, the State Government is not absolved from its duty to grant the petitioner benefits at par with similarly situated persons -- State Cabinet has taken a decision to grant benefit of regularization to the petitioners prospectively, the same cannot be a valid reason to discriminate the petitioners.

(Para 20)

B. Constitution of India, Article 14, 16 – Regularization of Primary Assistant Teachers (PAT) -- Intelligible differentia – All the Incumbents under the PAT, GVU and Para Teachers Schemes formed a single class, keeping in view the object behind their appointments and treatment given to them by the State Government -- Exclusion of petitioners by not conferring upon them the benefit of regularization on completion of 8/10 years of service, as has been done in the case of GVU and Para Teachers, amounts to creation of a class without there being any intelligible differentia -- Since, the respondents have already granted such benefit to the Para Teachers w.e.f. 18.12.2014, the respondents directed to regularize the services of the petitioners with all consequential benefits from that date i.e. 18.12.2014.

(Para 21, 22)

Indian Penal Code, 1860 (45 of 1860), Section 294, 114, 34 – Constitution of India, Article 226 – Obscene act – Abettor – Employee/ Waiter of Bar -- Quashing of criminal proceedings -- Petitioner in the present case was a mere employee of the owner of Bar and he is found to be discharging his duty of serving the customers food and drink as per his employment profile -- No offense made out qua the Petitioner -- Petition allowed.

(Para 1, 8-11.1)

Punjab Land Revenue Rules, Rule 15 – Constitution of India, Article 226 -- Appointment of Lambardar – Younger in age – Non-consideration of other factors – Effect of -- Petitioner was appointed as Lambardar by Collector, only on the ground that she is younger than the other candidates; whereas, the other factors, as envisaged under Rule 15 of the Punjab Land Revenue Rules, have not been taken into consideration – Commissioner remanded back the case, which order was upheld by the Financial Commissioner --  Case requires a fresh look at the level of District Collector is correct and does not call for any interference.

(Para 8.1-9)

Maharashtra Regional and Town Planning Act, 1966 (Maharashtra Act No. XXXVII of 1966), Section 2, 126(1) -- Development Control Regulations for Greater Bombay, 1991, Regulation 3(7), 33, 34 -- Constitution of India, Article 300A – Compensation for surrendering land and developing amenities -- Abandonment of claim -- Delay and laches – Writ petitioners constructed Development Plan Roads at their own cost and voluntarily surrendered the reserved lands to the Mumbai Municipal Corporation – Writ petitioners were granted Floor Space Index (FSI) and/or Transferrable Development Rights (TDR) in the form of Development Rights Certificates (DRC) equal to the gross area of the plots surrendered by them – Writ dismissed on delay and laches by High Court.

-- Held, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made -- In fact, a duty is cast on the State to pay compensation to the land losers as otherwise there would be a breach of Article 300-A of the Constitution -- Neither the doctrine of delay and laches nor the principle of abandonment of claim or waiver would apply in these cases.

(Para 2, 4.13, 18)

Constitution of India, Article 14, 226 -- Cancellation of tender – Defaulter/ Blacklisted was not ground for cancellation -- It being so, it does not lie in the mouth of the respondents to contest the claim of the petitioner by terming him as black listed, when such ground was not the reason for cancellation of tender -- Even otherwise, the respondents have not been able to substantiate their plea that the petitioner had been black listed – Communication did not mention any reason adverse to the petitioner – Writ petition allowed, period for which the bids were invited has already elapsed – Respondent burdened with costs of Rs.2,00,000/- (Rupees Two Lacs only) to be paid to the petitioner for compensating him for the loss caused to him without justifiable reason.

(Para 10-13)

Constitution of India, Article 226, 309 -- Feeder cadre – Promotional cadre – Whether PayScale can be same -- Sub Inspector is a promotion post from the feeder post of Panchayat Secretary – By revision, the pay scale of Panchayat Secretary was brought at par with the pay scale available to the post of Sub Inspector w.e.f. 01.01.2006 -- No revision of pay was given to the Sub Inspectors -- It is more than settled that the pay scale of promotional post has to be higher than the feeder post – Finance department rejected the proposal consecutively made by the administrative department without assigning any reason – Writ petition allowed, the respondents directed to revise the pay scale and to pay them entire arrears along with interest @ 6% per annum, failing which the arrears shall entail interest @ 9% per annum.

(Para 9-18)

Constitution of India, Article 22(5) – Detention order – Opportunity to represent – Supply of material – Right of -- Detention record reveals that the petitioner has been provided copies of detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statements of witnesses and other relevant documents (01 leaf), (total 06 leaves) -- It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement therein FIR is shown -- Even the copy of the dossier of detention has not been supplied – Petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board -- Preventive detention unsustainable in law -- Detention quashed.

(Para 7-9)

Constitution of India, Article 226, 300A, 309 – Leave encashment – Akin to property -- Merger of U.P. Basic Education Board to State of Uttarakhand -- Leave encashment is akin to a salary, which is property -- Depriving a person of his property without any valid statutory provision would violate Article 300-A of the Constitution of India -- Leave encashment paid on account of unutilized leave is not a bounty -- If an employee has earned it and the employee has chosen to accumulate his Earned Leave to his credit, then encashment becomes his right -- Writ allowed, a mandamus issued commanding the respondents to pay Leave Encashment of Earned Leave to the petitioners immediately, in accordance with law.

(Para 9-12)

Constitution of India, Article 226 -- Personal Assistant Cadre Employees’ Service Rules 2018, Rule 20 --  Procedure for Appointment by Direct Recruitment on Group ‘C’ Post Rules, 2008, Rule 5(4) – Appointment of Personal Assistant/ Stenographer -- Carry forward of posts – Procedure of -- Total 152 vacancies were advertised and only 110 candidates were selected -- 42 vacancies are still available – Respondent/ Commission has list of 1830 candidates in order of merit -- By applying the ratio of 1:4 i.e. 42 x 4=168 candidates can still be called for typing and shorthand test from the said list – Writ allowed, respondent-Commission directed to call the candidates, who fall in the list of 1830 candidates in the ratio of 1:4 whose names are there in the list after 648th candidate for supplying 42 vacancies on the post of Stenographer/Personal Assistant in the order of merit till the entire remaining 42 vacancies are filled or list of 1830 candidates is exhausted, whichever is earlier.

(Para 2, 3, 12-14)

Indian Penal Code, 1860 (45 of 1860), Section 302, 201 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Constitution of India, Article 21 – Murder – Regular bail -- Petitioner is in custody for more than 5 years -- An accused or an under trial has a fundamental right to speedy trial -- When a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-under trial on the ground that the charges are very serious -- Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude -- Out of 48 witnesses, only about 16 to 18 witnesses have been examined – Bail allowed.

(Para 5)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Constitution of India, Article 21 -- Bail – Right of -- “Bail is the Rule and Jail is an Exception” – Objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory -- Right to a speedy trial is one of the rights of a detained person -- Courts shall also take into consideration the fundamental precept of criminal jurisprudence, “the presumption of innocence”, besides the gravity of offence(s) involved.

(Para 13)

B. Indian Penal Code, 1860 (45 of 1860), Sections 148, 149, 307, 160, 323, 325, 201 – Arms Act, 1959 (54 of 1959), Sections 25, 27, 54, 59 --  Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Attempt to murder – Regular bail -- Though the petitioner was named in the FIR but no specific role attributed to him -- Weapon recovered from the petitioner is yet to be co-related with the injury suffered by the injured before the learned trial court -- Incarceration of about one year and the trial is yet to begin as no charges have been framed -- 27 prosecution witnesses cited in challan -- Trial would take a long time -- Victim is now hale and hearty -- Bail allowed.

(Para 17, 18)

Constitution of India, Article 226 – Writ – Delay and laches – Seniority list challenged after 13 years – Petitioner is seeking entitlement to agitate his belated claim on the strength of directions issued by the Court in other case -- Assertion of petitioner that he has a fresh cause of action for filing the instant petition after judgment cannot be sustained -- Unexplained delay and laches in invoking Article 226 jurisdiction has repeatedly been held to be a serious impediment for grant of relief -- Claim of the petitioner suffers from delay and laches and cannot be entertained – Writ dismissed.

(Para 11-23)

Constitution of India, Article 226 – Service matter -- Recovery of benefits already drawn – Permissibility of -- Ad-hoc appointment as Assistant Teacher (L.T Grade), on 20.09.1986 -- Services regularized on 07.08.1993 -- After calculating ad-hoc period Selection Grade was sanctioned on 20.09.1996 – By the impugned orders dated 08.12.2017 and 05.09.2019, respondent-State cancelled the payment of Selection Grade to the petitioner -- Writ petition disposed of, with the observations that the benefit, if any, granted to the petitioner shall not be recovered -- Amount of recovery made from the petitioner, if any, shall also be paid back to the petitioner.

(Para 2-8)

Constitution of India, Article 14, 16 -- Recruitment and Promotion Rules, 1992, Rule 11 – Unequal promotion Quota – Principle of Intelligible defferentia -- Impugned Recruitment and Promotion Rules for the post of Deputy Director provide for 60% quota to the Principals promoted from the cadre of Headmasters and 40% to the Principals promoted from the cadre of Lecturers for being placed as Deputy Directors – No reasonable classification to the extent of providing unequal quota to the Principals promoted from the cadre of lecturers and Principals promoted from the cadre of Headmasters is in clear violative of Articles 14 and 16 of the Constitution -- Rule 11 as amended in 2005 quashed to that extent.

(Para 12, 17-20)

Uttarakhand Annual Transfer for Public Servants Act, 2017 (Uttarakhand Act No. 1 of 2018), Section 13(6) – Constitution of India, Article 226 -- Transfer of employee --  Petitioner is feeling difficulty in serving at Government ITI Dugadda, he wants to be transferred at a suitable place particularly in District Haridwar and made a representation -- Writ petition disposed of, respondent No.2 directed to take a decision on petitioner’s representation by a speaking and reasoned order, within a period of one week.

(Para 2-6)

Constitution of India, Article 226, 311 -- RGPSM’s General Service Conditions, Clause 4 -- Appointment in Sarv Shiksha Abhiyan / SSA -- Termination of service/ contract – Non-renewal of contract -- Appellant topped the revised Merit List, leading to her appointment -- While serving complaint(s) against her : (i) not punctual in attending to her duties, and; (ii) not correctly reported with regard to the events in the hostel -- She, inter alia, frankly admits to being late on occasion, but to compensate for her late-coming, she used to sit till late evening in the office for completion of work.

-- Clause 4 makes it clear that ordinarily, for inefficiency, one month’s notice is sufficient -- The Clause also makes it clear that if someone is found to have indulged in “undesirable activities”, the Mission Director was competent to terminate such person’s services “with immediate effect”.

-- Ld. Single Judge of High Court quashed the order holding that the termination orders being stigmatic in nature, relating to alleged misconduct involving moral turpitude, the same could not have been passed without holding a regular enquiry.

Respondents have placed themselves in a Catch-22 situation – If it is a case of termination simpliciter and non-stigmatic, then one month’s notice was required to be issued to the appellant, which was not done – If impugned order to be seen as falling under the latter part of Clause 4, it would be stigmatic -- Impugned order does visit the appellant with evil consequences and would create hurdles for her re further employment – Order of Ld. Single Judge, upheld, appellant held entitled to all consequential benefits including notional continuation in service at par with other similarly-situated employees, but with the back wages restricted to 50% -- In view of the long passage of time, liberty denied to the respondents to proceed afresh against the appellant as was granted by the learned Single Judge.

(Para 12, 30-36)

Constitution of India, Article 226 -- Dismissal from service – Acquittal in criminal case – Right to re-instatement -- In departmental proceedings petitioner found guilty of misappropriation of 80 Urea bags and embezzlement of Rs.29,656/- and award was passed against petitioner – No appeal/ revision filed against by petitioner – Held, acquittal from criminal proceedings does not automatically entitle an employee to reinstatement -- No ground to interfere with impugned dismissal order.

(Para 2-4)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Bail – Principles – Court observed, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment -- On account of non-grant of bail even in straight forward open and shut cases, Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency -- Trial courts and the High Courts attempt to play safe in matters of grant of bail -- Trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.

(Para 53)

B. Prevention of Money-Laundering Act, 2002 (15 of 2003), Section 3, 45 – Prevention of Corruption Act, 1988 (49 of 1988), Section 7, 7A, 8, 12 -- Indian Penal Code, 1860 (45 of 1860), Section 420, 201, 120B -- Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Corruption case -- Regular bail – Bar contained in Section 45 of PMLA – Prolonged incarnation – Speedy trial – Right of -- Long incarceration running for around 17 months, trial even not having been commenced, the appellant has been deprived of his right to speedy trial – Right to speedy trial and the right to liberty are sacrosanct rights – 493 witnesses have been named, the case involves thousands of pages of documents and over a lakh pages of digitized documents -- Not even the remotest possibility of the trial being concluded in the near future – Keeping the appellant behind the bars for an unlimited period of time would deprive his fundamental right to liberty under Article 21 of the Constitution – Bail allowed, stringent conditions imposed.

(Para 49-58)

Constitution of India, Article 226 – Nikah/ Muslim marriage in autorickshaw – Conversion of religion -- CBI enquiry – Witnesses of marriage stated that neither did they participate in the marriage nor have signed the marriage certificate -- Marriage solemnized appears to be an eye wash as by no stretch of imagination, a Maulvi/Quazi under the Mohammedan law can be expected to perform NIKAH in an auto-rickshaw, without the presence of two witnesses coupled with the place of solemnization of marriage stated to be at Masjid, raises a profound and conspicuous suspicion which needs to be debunked by conducting probe through an independent and Central agency i.e. CBI.

-- CBI will conduct a thorough and fair inquiry into the matter particularly from the perspective as to whether any such attempt of coordinated and illegal conversion for the sake of marriage has been made and the motive behind the marriage of getting it solemnized in an auto-rickshaw without the presence of any witnesses and an attorney; and also whether the Maulvi/Quazi was competent enough to perform the marriage as per the desired customs and rituals of the Muslim religion, at such a ‘place’, and also to inquire into the credentials of the attorney.

(Para 2-6)

Constitution of India, Article 226 – Benefit of increments withdrawn from employee – Recovery of -- Petitioner is working as SS Master, which is a Class-III Post -- Benefit of the increments given in the year 2011, withdrawn in the year 2021 after a period of ten years – Held, no recovery can be made from the petitioner -- Any recovery done from the petitioner be refunded back to him within a period of eight weeks.

(Para 6-9)

Haryana Canal and Drainage Act, 1974 (29 of 1974), Section 20(3), 55(4)(6) – Constitution of India, Section 226, 227 -- Nakka from the watercourse – Finality of order – Once the matter regarding provisioning of Nakka to the land of respondent No. 3 and/or father of respondent No. 3 was considered and decided by the Superintending Canal Officer and the said order having attained finality, it would be just and expedient not to permit the same issue being agitated again -- Superintending Canal Officer by directly entertaining application of respondent No. 3 and by passing the impugned order has unsettled the settled position, which has not only prevented the finality of decision that has been reached at, but has conveyed a wrong message that a litigant may go on filing applications for a relief claimed and even if the same is denied, it could be granted at some subsequent stage -- This is clearly against public policy and administration of justice -- Civil writ petition allowed and the impugned orders set aside.

(Para 11)

Constitution of India, Article 136 -- Supreme Court Rules, 2013, Order 22 Rule 3, 4, Order 5 Rule 1(19)  – Special Leave Petition (SLP) Civil/ Criminal -- Certified copy of impugned order – Requirement of – Exemption of -- Petitions shall be accompanied by a certified copy of the judgment or order appealed from -- If the certified copy is not available on the date of presentation of a special leave petition, proof of application for such copy has to be adduced for the court to consider the prayer for exemption -- This practice direction has to be observed by all litigants who propose to file special leave petitions both on the civil side as well as on the criminal side with effect from 20th August, 2024.

(Para 12-17)

A. Constitution of  India, Article 226 -- Custody of children -- Writ of habeas corpus – Maintainability of -- Effort to secure temporary custody of the children through a Writ of Habeas Corpus, especially when both the children are girls and are living with their mother, can neither be entertained nor appreciated.

(Para 1)

B. Code of Civil Procedure, 1908 (V of 1908), Section 13(f) -- Custody of children – Order of Foreign court – Compliance of -- Compliance to an order claimed to have obtained from the District Court, Family Court Division, State of Minnesota, U.S.A -- A foreign judgment violative of Indian law is not conclusive between the parties and thus, Indian Courts are not bound to follow it -- This principle is also statutorily recognized by Section 13(f) of the Civil Procedure Code, 1908 – Hence, the aforesaid order is not binding on the respondents or the children.

(Para 3)

Constitution of India, Article 142 – Civil Services examination of 2014 – Re-medical test in 2024 -- Petitioner qualified in Prelims, Mains and also the Interview -- Though the petitioner was declared to be ‘temporarily unfit’ after the medical examination dated 29.04.2015 -- Petitioner assumed that he had lost out and overlooked the chance that was provided to him on 14.07.2015, when he was called for re-examination – Court considered it appropriate to grant a limited relief, directing the respondents to re-schedule the re-medical test -- Almost a decade has passed, in the event the petitioner qualifies, he shall neither claim appointment in the 2014 Batch, nor will he be entitled to seniority in the Batch -- If he is to be given appointment, his services shall commence from the date of the appointment – Court exercised jurisdiction under Article 142 of the Constitution of India to do complete justice, as such shall not be treated as a precedent in any case.

(Para 1, 11-15)

A. Compassionate appointment -- Principle of compassionate appointment has been put in place to ameliorate suffering that is cast upon members of a family upon the sudden death of the earning member -- Compassionate appointment cannot be claimed as a matter of right -- A person, claiming an appointment on such ground, has to demonstrate his relationship to the deceased person and eligibility for appointment -- Same cannot be done without placing all relevant documents before the competent authority.

(Para 7)

B. Constitution of India, Article 311 -- Compassionate appointment by fraud – Termination from service -- Protection under Constitution of India – Availability of -- Fraud vitiates all proceedings -- Respondent-employees having obtained their position by fraud, would not be considered to be holding a post for the purpose of the protections under the Constitution.

(Para 2.2, 14)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 439 --  Constitution of India, Article 21 -- Automatic cancellation of bail -- Whether High Court can impose a condition of automatic cancellation of bail order -- Cancelling of bail order directly affects freedom of a person which affects his fundamental rights -- Reasonable opportunity of hearing is a fundamental right under the Constitution of India – Held, if there is an automatic cancellation of bail order, then valuable right of natural justice is denied to accused -- Such condition could not be made part of the bail order.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 362 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 403 – Constitution of India, Article 21 -- Automatic cancellation of bail -- Review of order -- Court is barred from reviewing or altering its own order under Section 362 of Cr.P.C./ 403 of B.N.S.S., 2023 -- Both sections are pari materia -- While recalling a judgment Court has to apply its mind and has to look into the facts of the case, therefore, bar u/s 362 of Cr.P.c. or new Section 403 of B.N.S.S., 2023 will be operative, but there are certain exceptions when Court can recall/relook into the judgment and violation of fundamental rights is one of the said exceptions -- If condition of automatic cancellation of bail order is hit by Article 21 of the Constitution of India, then order will be revived and Court can consider the application for modification also.

(Para 7)

Constitution of India, Article 14, 15, 16, 21, 309 -- Appointment as constable – Denial of appointment due to pregnancy – Legality of – Now non-availability of post – Ground of -- Motherhood should never and can never be the basis for denying public employment opportunities to women – Maternity should not be seen as a barrier but as a fundamental human right of every woman -- Respondent’s plea that the vacancies of Constable in 2016 and 2018 already stand filled and therefore, the petitioner cannot now be appointed – Held, respondents having acted in a most illegal and arbitrary manner in rejecting the petitioner’s request for deferment of PET cannot now be permitted to urge that she cannot be appointed – Writ petition allowed with costs of Rs. 1,00,000/- -- Arrears of backwages will however, as volunteered by the petitioner, restricted to 50%.

(Para 10-15)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Constitution of India, Article 21 -- NDPS Case – Commercial quantity – Regular bail -- Petitioner has already incarcerated 2 years and 11 days in custody and not involved in any other case -- Probability of his false implication cannot be ruled out particularly in the light of the fact that police party was in a private vehicle, details of which have not been mentioned – Charges framed on 13.2.2023, wherein out of 9 prosecution witnesses, only 2 have been examined so far, meaning thereby the trial will take long time which tantamount to violation of right to life and liberty as has been enshrined in Article 21 of the Constitution of India even including the right to speedy trial -- “Bail is a rule, jail is an exception” is the basic principle of criminal jurisprudence – Petitioner ordered to be released on regular bail.

(Para 5-9)

Constitution of India, Article 14, 16, 309 -- Daily wagers – Regularisation of services – Natural justice -- If the competent authority takes a policy decision within the permissible framework, its benefit must be extended to all those who fall within the parameters of such a policy -- Authorities cannot be permitted to pick and choose in such circumstances -- Eligibility of respondent no.1 for the post he holds has not been controverted -- The fact that he initially entered through the process in conformity with Articles 14 and 16 of the Constitution is not a serious issue – High Court directed the petitioners to confer the status of a regular employee on respondent No.1 – No reason to interfere, SLP dismissed -- Petitioners/ State directed to grant all the benefits, including arrears of pay and seniority, to respondent No.1 from the due date.

(Para 5-8)

Constitution of India, Article 226 -- Right to challenge – Compliance of impugned order passed in writ – Effect of -- Judgment sought to be challenged in the Writ Appeal was already complied with under threat of contempt – Held, compliance of an order under threat cannot take away the right of a party as available to challenge the same.

(Para 14, 15)

A. Constitution of India, Article 21 -- Right to bail – Right to Life and liberty – Restrictions imposed by Statute – Effect on Constitutional Court -- Right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct -- A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed -- In that event, such statutory restrictions would not come in the way.

(Para 32)

B. Constitution of India, Article 21 -- Right to bail – Right to Life and liberty – Restrictions imposed by Statute – Effect on Constitutional Court -- In the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to leError! Hyperlink reference not valid.an in favour of constitutionalism and the rule of law of which liberty is an intrinsic part -- In the given facts of a particular case, a constitutional court may decline to grant bail -- But it would be very wrong to say that under a particular statute, bail cannot be granted --  It would run  counter to the very grain of our constitutional jurisprudence.

(Para 32)

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 8, 20, 27-A, 29, 60, 37 -- Constitution of India, Article 21 -- NDPS Case – Regular bail – Commercial quantity -- Petitioner is in custody since 08.09.2021 i.e. for the last more than 2 years and 10 months -- Out of 16 witnesses cited by the complainant, statement of only one witness has been concluded -- Charge framed way back on 18.07.2022 -- Conclusion of the trial is likely to take long time -- Petitioner is the first offender and has not been found to be involved in any other case -- Rigors of Section 37 of the NDPS is required to be balanced with Article 21 of the Constitution of India, which provides fundamental right to life and liberty -- Right to speedy trial forms a facet of Article 21 -- Petitioner admitted to regular bail.

(Para 7-12)

A. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) – Arbitration – Deposit of amount as pre-condition – Legality of -- A clause which seeks deposit of a part of the claimed amount to avail of the remedy of arbitration is one which would be illegal and unlawful as it is barring a legal remedy from being invoked without deposit of money -- No remedy can be subjected to payment of money, unless authorised by law -- Such a clause in a contract lacks legitimacy and would not be enforceable.

(Para 76)

B. Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11(6) --  Constitution of India, Article 19, 21 -- Employment agreement -- Lock-in period of three years -- Covenants in employment contracts -- Lawful and reasonable covenants which are operative during the term of employment are valid and enforceable -- Such covenants are not in violation of the fundamental rights as provided in the Constitution of India -- Reasonable lock-in periods in employment contracts that apply during the term of employment are valid in law and do not violate Fundamental Rights as enshrined in the Constitution of India -- Disputes relating to lock-in periods that apply during the subsistence of employment contracts, are arbitrable in terms of the Act, 1996.

(Para 78)

A. Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 1(3), 4, 531 – Procedure in criminal cases after BNSS (w.e.f. 01.07.2024):

I. The Code of Criminal Procedure, 1973 stands repealed w.e.f. 01.07.2024. Ergo; no new/fresh appeal or application or revision or petition can be filed under Code of Criminal Procedure, 1973 on or after 01.07.2024.

II. The provisions of Section 4 and Section 531 of BNSS, 2023 are mandatory in nature as a result whereof any appeal/ application/ revision/ petition/ trial/ inquiry or investigation pending before 01.07.2024 are required to be disposed of, continued, held or made (as the case may be) in accordance with the provisions of Code of Criminal Procedure, 1973. In other words; any appeal/ application/ revision/ petition filed on or after 01.07.2024, is required to be filed/ instituted under the provisions of BNSS, 2023.

III. Any appeal/ application/ revision/ petition filed on or after 01.07.2024 under the provisions of Cr.P.C., 1973 is non-maintainable & hence would deserve dismissal/ rejection on this score alone. However, any appeal/ application/ revision/ petition filed upto 30.06.2024 under the provisions of Cr.P.C., 1973 is maintainable in law. To clarify; in case any appeal/ application/ revision/ petition is filed upto 30.06.2024 but there is defect (Registry objections, as referred to in common parlance) and such defect is cured/ removed on or after 01.07.2024, such appeal/ application/ revision/ petition shall be deemed to have been validly filed/ instituted on or after 01.07.2024 and, therefore, would be non- maintainable.

IV. Section 531 of BNSS shall apply to "revision", "petition" as also "petition of complaint" (ordinarily referred to as complaint before Magistrate) with the same vigour as it is statutorily mandated to apply to "appeal/ application/ trial/ inquiry or investigation" in terms of Section 531 of BNSS.

(Para 9)

B. Constitution of India, Article 20 -- Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 1(3), 4, 531 – Procedure in criminal trial – Retrospective or Prospective -- Prohibition under Article 20 pertains to only conviction/ sentence under a law, which has been enacted later on, but not trial thereof -- There is no gainsaying that BNSS is essentially a criminal procedural law whereas BNS provides for substantive criminal law – It is trite law that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts, even where the alteration which the statute makes has been disadvantageous to one of the parties -- No person has a vested right in any course of procedure -- He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode.

(Para 8.3, 8.4)

C. Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 528, 531 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Indian Penal Code, 1860 (45 of 1860), Section 406, 498A – Quashing of FIR/ Report u/s 173 Cr.P.C. -- Petition u/s 482 Cr.P.C on 03.07.2024 – Maintainability of -- The Criminal Procedure Code of 1973 stands repealed w.e.f. 01.07.2024 -- Petition u/s 482 Cr.P.C. is non-maintainable, dismissed -- Petitioner shall be at liberty to file an appropriate petition invoking the provisions of BNSS, as and if permissible in law.

(Para 10)

Himachal Pradesh Judicial Service Rules, 2004, Rule 5(c) – Constitution of India, Article 233 -- Appointment of Additional District and Sessions Judge – Eligibility criteria -- Continuous practice as an advocate – Minimum period of 7 year of practice – Exclusion of judicial service period – Practicing Advocate at the Bar of a minimum period of seven years as on the last date fixed for receipt of the applications -- There is no requirement that such practice as an Advocate must be continuous as on the date of making application for the said post -- Respondent no. 4 has cumulatively more than 7 years of active practice, thus he is eligible to be considered for appointment to the post of Additional District Judge as per Rule 5 (c) – Rule 5(c) upheld, “Note” below clause (c) of Rule 5 (permitting counting of Judicial service of a candidate towards counting of 7 years practice as Advocate for being eligible to be appointed as Additional District Judge), declared unenforceable and struck down.

(Para 42-68)

A. Constitution of India, Article 12, 13, 226 -- Army Welfare Education Society / Private Educational  Institution – Service dispute – Maintainability of writ –

-- Whether the appellant Army Welfare Education Society is a “State” within Article 12 of the Constitution of India so as to make a writ petition under Article 226 of the Constitution maintainable against it?

-- Whether a service dispute in the private realm involving a private educational  institution and its employees can be adjudicated upon in a writ petition filed under Article 226 of the Constitution?

Held, High Court committed an egregious error in entertaining the writ petition holding that the appellant society is a “State” within Article 12 of the Constitution -- School run by the Appellant Society imparts education -- Relationship is that of an employee and a private employer arising out of a private contract -- If there is a breach of a covenant of a private contract, the same does not touch any public law element -- The school cannot be said to be discharging any public duty in connection with the employment of the respondents.

(Para 42, 46)

B. Doctrine of legitimate expectation -- Features :

-- First, legitimate expectation must be based on a right as opposed to a mere hope, wish or anticipation;

-- Secondly, legitimate expectation must arise either from an express or implied promise; or a consistent past practice or custom followed by an authority in its dealings;

-- Thirdly, expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be treated as a legitimate expectation;

-- Fourthly, legitimate expectation operates in relation to both substantive and procedural matters;

-- Fifthly, legitimate expectation operates in the realm of public law, that is, a plea of legitimate action can be taken only when a public authority breaches a promise or deviates from a consistent past practice, without any reasonable basis.

-- Sixthly, a plea of legitimate expectation based on past practice can only be taken by someone who has dealings, or negotiations with a public authority. It cannot be invoked by a total stranger to the authority merely on the ground that the authority has a duty to act fairly generally.

The aforesaid features, although not exhaustive in nature, are sufficient to help in deciding the applicability of the doctrine of legitimate expectation to the facts of the case.

(Para 48, 49)

C. Doctrine of legitimate expectation – Arbitrariness in State action -- It is clear that legitimate expectation, jurisprudentially, was a device created in order to maintain a check on arbitrariness in State action -- It does not extend to and cannot govern the operation of contracts between private parties, wherein the doctrine of promissory estoppel holds the field.

(Para 49)

D. Doctrine of legitimate expectation – Schol run by Society – Applicability upon -- Even if the function being performed by a private educational institution in imparting education may be considered as a public function, the relationship between the administration of such an institution and its employees remains a contractual one, falling within the ambit of private law -- No statutory obligation on the appellant society which requires that the salaries and allowances of the respondents are to be kept at par with what is payable to teachers of Government institutions -- Appellant society, for the purposes of its relationship with its employees, cannot be regarded as a public or Government authority -- Doctrine of legitimate expectation will have no applicability to the facts of the case.

(Para 50-52)

Constitution of India, Article 21, 226 -- Medical reimbursement -- Unapproved hospital -- Partial reimbursement at PGI rates – Son of the petitioner is handicapped, also a mentally challenged person suffering from severe abdominal pain/ emergency condition, shifted to the unapproved hospital and on the date of admission, he was operated upon and was discharged on the next day – Held, it would be inhuman to say employee should keep on searching the list of approved hospitals and should first go to an approved hospital or a government hospital by ignoring the developing pain and at the risk of life -- It would be not only perverse but it will also be violative of Right to Life guaranteed under Article 21 of the Constitution of India – Writ petition allowed -- Respondents directed to pay full medical reimbursement.

(Para 8-10)

A. Constitution of India, Article 14 -- Show cause notice – Non-service of – Effect of – Rule of natural justice -- In the absence of any material to show that the Show Cause Notice was served on the respondent at all, it has to be presumed that the action of the Assistant Provident Fund Commissioner in setting the respondent ex parte and proceeding to assess damages and interest, is arbitrary, illegal and violative of principles of natural justice.

(Para 23)

B. Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), Section 7I, 7Q, 14B – Quantum of damages – Power of -- Contention that under 2nd Proviso to Section 14-B of the Act, only the Board of Trustees was empowered to reduce the quantum of damages and that the Central Government Industrial Tribunal-cum-Labour Court-I, Chandigarh, had no such power – Court disagreed with said plea – Held, as an Appellate Authority, the said Tribunal acting u/s 7-I of the Act, can exercise all the powers of the Primary Authority/ Adjudicating Authority.

(Para 30, 31)

Constitution of India, Article 14, 226 – Termination of service --  Involvement in FIR u/s 376/342 RPC -- Rule of natural justice – Opportunity of hearing -- Respondents without affording any opportunity of being heard to the petitioner have terminated/dis-engaged the petitioner from the service which is palpably bad in the eyes of law as the order impugned has been passed in violation of the principles of natural justice -- Otherwise also, the petitioner in the instant case stands acquitted of the charges on the basis of which he was disengaged -- Order disengaging the petitioner as SPO set aside – Services restored with all consequential benefits excluding the payment of emoluments for the period from disengagement till the date of restoration of service.

(Para 11-13)