Jyotsna Mengi vs Chairman on 30 March, 2009

Jammu High Court
Jyotsna Mengi vs Chairman on 30 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 205 OF 2006    
Jyotsna Mengi 
Petitioner
Chairman,J&K PSC & ors   
Respondent  
!Appellant in person
^Mrs. Seema Shekher, AAG AND Mr. D. C. Raina, Sr. Advocate with Mr. F.A.Natnoo, Advocate.    

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge  
 DATE: 30/03/2009 
: J U D G M E N T :

Per Barin Ghosh, CJ:

The Jammu and Kashmir Public Service Commission
invited applications for filling up of 124 posts in eight
different services by a notification dated December 28,
2001. Subsequently, by notification dated November 27,
2002, the number of posts was raised to 138. The
notifications mentioned that two posts have been reserved
for disabled persons. The appellant made a representation
2
that, having regard to the number of posts to be filled up,
the number of posts reserved for disabled persons should
be more. The said representation was not addressed to.
The appellant is a disabled person, for, she has locomotor
disability. She responded to the advertisement and sought
to be considered for the posts reserved for disabled
persons. She was, accordingly, considered and, having
regard to what has been stated in the judgment and order
under appeal, she was adjudged fourth best amongst
disabled candidates. The appellant having thus been
adjudged was not accommodated in the two posts reserved
for disabled persons and, hence, she filed the writ petition.
The writ petition having been dismissed, the present appeal
has been preferred.

On the basis of the papers and records produced
before us there is now no dispute that the person who was
adjudged best amongst disabled persons was, in fact, not a
disabled person and, accordingly, he was not considered in
the category of disabled persons. Accordingly, the second
and third candidates, adjudged amongst disabled persons,
3
have been accommodated in the advertised two posts
reserved for disabled persons. In the event a third post is
available. It is the contention of the appellant she should be
accommodated in such post.

We have made an endeavour to ascertain whether, in
fact, a third post was available or not and will discuss it
hereinafter, but before doing so, we must highlight that the
manner in which steps have been taken to fill up posts
reserved for disabled persons, the State has given a go-by
to the law made by it, namely, the Jammu and Kashmir
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1998, which came into
force on May 19, 1998.

In this connection, one must note sections 21 and 22
of the Act, which are set out below:

“21. Identification of posts which can be
reserved for persons with disabilities.
The Government shall.-

(a) identify posts, in the establishments
which can be reserved for the persons
with disabilities;

4

(b) at periodical intervals not exceeding three
years, review the list of posts identified
and up-date the list taking into
consideration the development in
technology.

22. Reservation of posts.

The Government shall appoint in every
establishment such percentage of vacancies not
more than three percent for persons or class of
persons with disabilities of which one percent,
each shall be reserved for persons suffering
from.-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in
the posts identified for each disabilities;
Provided that the Government may, having
regard to the type of work carried on in any
department or establishment, by notification,
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this Section.”
A look at sections 21 and 22 of the Act would amply make it
clear that, unless the State Government exempts any
establishment from the provisions of section 22 of the Act, it
is mandatory upon the Government to appoint in every
establishment disabled persons and, for that matter, to
identify the posts where disabled persons can be
accommodated. Periodical review for identifying the posts,
5
where disabled persons can be accommodated, is also a
mandate of law. The law, at the same time, mandates that
such review should be made at intervals not exceeding
three years.

The records show that a number of establishments of
the State have identified posts in which displaced persons
cannot be appointed, and while doing so, did not identify
even one single post, where they can be appointed. At the
same time, the Government by notification did not exempt
any such establishment from the provisions of section 22 of
the Act. The Government, therefore, acted and is still acting
in breach of the law made by the Legislature.
Further more, section 22 of the Act mandates
reservation for disabled persons of at least 3% of the total
vacancies. The Government appears to have made such
reservation, i.e., the minimum. Section 22 of the Act further
directs that 1% of the minimum of 3% vacancies shall be
reserved for persons suffering from blindness or low vision;
1% of 3% for persons suffering from hearing impairment
and the remaining 1% of 3% for persons suffering from
6
locomotor disability / cerebral palsy. The Government has
not done so. Records placed before us demonstrate that all
the reserved vacancies created for disabled persons are
being supplied by persons suffering from locomotor
disability. The Government, therefore, is acting in breach of
the law with impunity. We hope that the Government would
act in the manner the Legislature wants it to act. It is the
duty of the Government to identify posts in all
establishments which have not been exempted and which
may be supplied by a person suffering from blindness or low
vision and the percentage thereof should not be less than
1% in the establishment. Similar identification is required to
be made for persons suffering from hearing impairment and
from locomotor disability or cerebral palsy and those
identified posts are required to be supplied by the persons
having such disability. In course of dealing with the matter,
we have found that all posts reserved for disabled persons
are being supplied by persons suffering from locomotor
disability. We hope and expect that the Government mend
its ways and act in discharge of its statutory duty and
7
obligation owing to disabled persons as recognized by the
Legislature.

Coming to the case at hand, initially the appellant
contended that since in terms of the notifications, 138 posts
were to be filled in, there should have been at least 4 posts
available for being filled up by disabled persons. Later, on
realization that 3% reservation in every establishment being
the mandate, she contended before us that no information
has been supplied by the State as to how many vacancies
were available in different establishments for which
recruitment process was initiated by issuing the subject
notifications. Accordingly, we directed production of
appropriate records, including the roster and the
notifications pertaining to maintenance of roster, fixing the
roster points to accommodate persons with disabilities.
Such records have been produced along with appropriate
notifications.

It appears hat on September 29, 1998 a notification
was issued when it was directed that to effect the
reservation for physically disabled persons, a separate
8
register of 100 points shall be maintained in each identified
class of posts filled through direct recruitment in which point
nos.1, 34 and 67 will be reserved for the physically disabled
persons and every Head of Department may start point no.1
with any category of disability. The appellant contended
that, in view of such direction, in the event a post in any
establishment is filled in which it is the 34th post, there must
be 2 posts available for physically disabled persons. The
appellant contended that in Community Development and
National Extension (Gazetted) Service 34 posts were filled
in and, at the same time, in the Social Welfare (Gazetted)
Service 44 posts had been filled in and, accordingly, there
must be at least 4 posts available for filling up by disabled
persons.

learned counsel for the State submitted that
Government order dated September 29, 1998 was not
acted upon. She submitted that maintenance of a separate
register of 100 points for disabled persons and then filling
up the same by disabled persons only in point nos. 1, 34
and 67 did not work out. In the circumstances, the
9
Government came up with another order dated March 13,
2001 based on Cabinet decision dated February 8, 2001.
The said order, according to the learned counsel for the
State, authorised 3% reservation in direct recruitments
under the provisions of the said Act in gazetted and nongazetted
posts as identified by expert committee and
detailed in annexure thereto. The said annexure, as
aforesaid, only identified posts where physically
handicapped people cannot work. It was submitted that
based on the said Government order, three percent posts
have been reserved for persons with disability and,
accordingly, 1% is accommodated within the first 33 posts
in an establishment and then another in the next 67 posts
available and the third upto the 99th post available. The
manner, in which the Government has acted, as aforesaid,
is in breach of their obligation bestowed upon them by the
Legislature as contained in sections 21 and 22 of the Act.
The net result is that no person suffering from blindness or
low vision or from hearing impairment has been given the
benefit of reservation made for them. All those vacancies of
3% of the total vacancies are being supplied by persons
10
suffering from locomotor disability. Further, it has not come
on record that even one single person suffering from
cerebral palsy has obtained the benefit of reservation for
persons suffering from such disability. Though suffering
from locomotor disability and suffering from cerebral palsy
are quite different things, but since the Legislature has
classified them in one category, it goes without saying that
persons suffering from cerebral palsy are required to
compete with persons suffering from locomotor disability for
supplying one vacancy reserved for them.
There is no dispute that the 2 posts reserved for
physically handicapped persons have been supplied by
persons with locomotor disability who where above the
appellant in the merit list of persons suffering from
locomotor disability. At the same time, there is no dispute
that upto 34th post in Community Development and National
Extension (Gazetted) Service and upto 44th post in the
Social Welfare (Gazetted) Service have been supplied and,
accordingly, percentage-wise, 2 posts were available in the
said departments for physically handicapped persons.

11

Though the 44th post in Social Welfare (Gazetted) Service
has been supplied by a physically handicapped person, but
no post in the Community Development and National
Extension (Gazetted) Service has been supplied by a
physically handicapped person. The other post which has
been supplied by a physically handicapped person was in
the Accounts (Gazetted) Service. Therefore, there cannot
be any dispute, as contended by the appellant, that there
was at least one more post available for physically
handicapped persons in addition to the two posts as were
notified.

The question is should we direct that one additional
available post be supplied by the appellant. The appellant
has relied upon a judgment of the Hon’ble Supreme Court
rendered in the case of State of UP v Pawan Kumar
Tiwari, 2005(1) Supreme 3. In that case the Hon’ble
Supreme Court was concerned with filling up of 93 posts of
Civil Judge (Junior Division) in UP Judicial Service. The
Hon’ble Court was not concerned with an issue pertaining to
reservation for persons with disability; they were concerned
12
with reservation of 3 posts horizontally for the category of
freedom fighters and ex-servicemen, but in the general
quota. The said judgment, therefore, is of no help to the
appellant. The next judgment of the Hon’ble Supreme
Court, cited by the appellant, was rendered in Bhudev
Sharma v District Judge Bulandshahr, 2007(8) Supreme

192. In that case, the appellant before the Hon’ble Supreme
Court was a blind person. He was not given the benefit of
reservation, although 2% reservation for physically
handicapped persons was available. The Hon’ble Supreme
Court found that when altogether 30 posts were to be filled
in, 2% thereof works out to 0.6 and the same being more
than half, should have been rounded to one and,
accordingly, one post was available for filling up by a
physically handicapped person. The Hon’ble Supreme
Court, accordingly, ordered. The person who succeeded
before the Hon’ble Supreme Court in that case was a blind
person which must be kept in mind.

The Legislature in section 22 of the Act did not stop by
saying that there should be reservation of 3% in the
13
vacancies for disabled persons; they categorised disabled
persons and said that each such category shall be entitled
to 1% reservation. They also gave the chronology of such
category. The first category has been identified as blindness
or low vision. Therefore, the first 1%, out of the 3% of
vacancies to be reserved for disabled persons, is to be
supplied by a person suffering from blindness or low vision.
The second 1%, out of the 3% of such vacancies, should be
supplied by a person suffering from hearing impairment and
the last 1% by a person suffering from locomotor disability
or cerebral palsy. In the case before the Supreme Court,
referred to above, the appellant being a blind person, was
entitled to the first post available for disabled persons;
whereas the appellant in the case at hand is entitled to the
third post available for disabled persons. That is the
distinction. In the circumstances, and despite holding that
one more post was available for disabled persons, we are
unable to issue a direction for appointment of the appellant.
We, however, direct the State as follows:

i) to identify posts in all establishments which can
be reserved for persons with disabilities. Those
14
posts must not be less than 3% of the posts
available in each of the establishments of the
State which have not been exempted;

ii) while identifying those posts, it must be
ascertained whether the vacancies therein can
be supplied by a person suffering from
blindness / low vision, or whether the same can
be supplied by a person suffering from hearing
impairment or whether the same can be
supplied by a person suffering from locomotor
disability / cerebral palsy;

iii) the posts to be so identified must not, in any
case, be less than 1% of the total posts
available in such establishments which can be
supplied by persons suffering from blindness /
low vision, and, similarly, at least 1% of such
posts to which can be supplied by persons
suffering from hearing impairment and at least
1% of such posts which can be supplied by
persons suffering from locomotor disability /
cerebral palsy;

iv) not exceeding 3 years, a review shall be made
in each such establishment of the State to reidentify
such posts and to update the same
taking into consideration the development in
technology;

15

v) the first of the 3% of the total vacancies should
be supplied by a person suffering from
blindness / low vision; the second by the
person suffering from hearing impairment and
the third by the person suffering from locomotor
disability / cerebral palsy;

vi) reservation for persons suffering from disability
shall be horizontal and, accordingly, a disabled
person shall fill up that post which is available
in the category to which he belongs, but as a
disabled person; and

vii) deficiencies in each establishment shall be
supplied soon and directions as above, would
be complied with before making new direct
recruitments.

With the directions as above, we dispose of the
appeal.

(Mansoor Ahmad Mir) (Barin Ghosh)
Judge Chief Justice.

Jammu,
.03.2009
A. H. Khan, JR.

Jyotsna Mengi vs Chairman on 30 March, 2009

Jammu High Court
Jyotsna Mengi vs Chairman on 30 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 205 OF 2006    
Jyotsna Mengi 
Petitioner
Chairman,J&K PSC & ors   
Respondent  
!Appellant in person
^Mrs. Seema Shekher, AAG AND Mr. D. C. Raina, Sr. Advocate with Mr.   
F.A.Natnoo, Advocate. 

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge  
 DATE: 30/03/2009 
: J U D G M E N T :

Per Barin Ghosh, CJ:

The Jammu and Kashmir Public Service Commission
invited applications for filling up of 124 posts in eight
different services by a notification dated December 28,
2001. Subsequently, by notification dated November 27,
2002, the number of posts was raised to 138. The
notifications mentioned that two posts have been reserved
for disabled persons. The appellant made a representation
2
that, having regard to the number of posts to be filled up,
the number of posts reserved for disabled persons should
be more. The said representation was not addressed to.
The appellant is a disabled person, for, she has locomotor
disability. She responded to the advertisement and sought
to be considered for the posts reserved for disabled
persons. She was, accordingly, considered and, having
regard to what has been stated in the judgment and order
under appeal, she was adjudged fourth best amongst
disabled candidates. The appellant having thus been
adjudged was not accommodated in the two posts reserved
for disabled persons and, hence, she filed the writ petition.
The writ petition having been dismissed, the present appeal
has been preferred.

On the basis of the papers and records produced
before us there is now no dispute that the person who was
adjudged best amongst disabled persons was, in fact, not a
disabled person and, accordingly, he was not considered in
the category of disabled persons. Accordingly, the second
and third candidates, adjudged amongst disabled persons,
3
have been accommodated in the advertised two posts
reserved for disabled persons. In the event a third post is
available. It is the contention of the appellant she should be
accommodated in such post.

We have made an endeavour to ascertain whether, in
fact, a third post was available or not and will discuss it
hereinafter, but before doing so, we must highlight that the
manner in which steps have been taken to fill up posts
reserved for disabled persons, the State has given a go-by
to the law made by it, namely, the Jammu and Kashmir
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1998, which came into
force on May 19, 1998.

In this connection, one must note sections 21 and 22
of the Act, which are set out below:

“21. Identification of posts which can be
reserved for persons with disabilities.
The Government shall.-

(a) identify posts, in the establishments
which can be reserved for the persons
with disabilities;

4

(b) at periodical intervals not exceeding three
years, review the list of posts identified
and up-date the list taking into
consideration the development in
technology.

22. Reservation of posts.

The Government shall appoint in every
establishment such percentage of vacancies not
more than three percent for persons or class of
persons with disabilities of which one percent,
each shall be reserved for persons suffering
from.-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in
the posts identified for each disabilities;
Provided that the Government may, having
regard to the type of work carried on in any
department or establishment, by notification,
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this Section.”
A look at sections 21 and 22 of the Act would amply make it
clear that, unless the State Government exempts any
establishment from the provisions of section 22 of the Act, it
is mandatory upon the Government to appoint in every
establishment disabled persons and, for that matter, to
identify the posts where disabled persons can be
accommodated. Periodical review for identifying the posts,
5
where disabled persons can be accommodated, is also a
mandate of law. The law, at the same time, mandates that
such review should be made at intervals not exceeding
three years.

The records show that a number of establishments of
the State have identified posts in which displaced persons
cannot be appointed, and while doing so, did not identify
even one single post, where they can be appointed. At the
same time, the Government by notification did not exempt
any such establishment from the provisions of section 22 of
the Act. The Government, therefore, acted and is still acting
in breach of the law made by the Legislature.
Further more, section 22 of the Act mandates
reservation for disabled persons of at least 3% of the total
vacancies. The Government appears to have made such
reservation, i.e., the minimum. Section 22 of the Act further
directs that 1% of the minimum of 3% vacancies shall be
reserved for persons suffering from blindness or low vision;
1% of 3% for persons suffering from hearing impairment
and the remaining 1% of 3% for persons suffering from
6
locomotor disability / cerebral palsy. The Government has
not done so. Records placed before us demonstrate that all
the reserved vacancies created for disabled persons are
being supplied by persons suffering from locomotor
disability. The Government, therefore, is acting in breach of
the law with impunity. We hope that the Government would
act in the manner the Legislature wants it to act. It is the
duty of the Government to identify posts in all
establishments which have not been exempted and which
may be supplied by a person suffering from blindness or low
vision and the percentage thereof should not be less than
1% in the establishment. Similar identification is required to
be made for persons suffering from hearing impairment and
from locomotor disability or cerebral palsy and those
identified posts are required to be supplied by the persons
having such disability. In course of dealing with the matter,
we have found that all posts reserved for disabled persons
are being supplied by persons suffering from locomotor
disability. We hope and expect that the Government mend
its ways and act in discharge of its statutory duty and
7
obligation owing to disabled persons as recognized by the
Legislature.

Coming to the case at hand, initially the appellant
contended that since in terms of the notifications, 138 posts
were to be filled in, there should have been at least 4 posts
available for being filled up by disabled persons. Later, on
realization that 3% reservation in every establishment being
the mandate, she contended before us that no information
has been supplied by the State as to how many vacancies
were available in different establishments for which
recruitment process was initiated by issuing the subject
notifications. Accordingly, we directed production of
appropriate records, including the roster and the
notifications pertaining to maintenance of roster, fixing the
roster points to accommodate persons with disabilities.
Such records have been produced along with appropriate
notifications.

It appears hat on September 29, 1998 a notification
was issued when it was directed that to effect the
reservation for physically disabled persons, a separate
8
register of 100 points shall be maintained in each identified
class of posts filled through direct recruitment in which point
nos.1, 34 and 67 will be reserved for the physically disabled
persons and every Head of Department may start point no.1
with any category of disability. The appellant contended
that, in view of such direction, in the event a post in any
establishment is filled in which it is the 34th post, there must
be 2 posts available for physically disabled persons. The
appellant contended that in Community Development and
National Extension (Gazetted) Service 34 posts were filled
in and, at the same time, in the Social Welfare (Gazetted)
Service 44 posts had been filled in and, accordingly, there
must be at least 4 posts available for filling up by disabled
persons.

learned counsel for the State submitted that
Government order dated September 29, 1998 was not
acted upon. She submitted that maintenance of a separate
register of 100 points for disabled persons and then filling
up the same by disabled persons only in point nos. 1, 34
and 67 did not work out. In the circumstances, the
9
Government came up with another order dated March 13,
2001 based on Cabinet decision dated February 8, 2001.
The said order, according to the learned counsel for the
State, authorised 3% reservation in direct recruitments
under the provisions of the said Act in gazetted and nongazetted
posts as identified by expert committee and
detailed in annexure thereto. The said annexure, as
aforesaid, only identified posts where physically
handicapped people cannot work. It was submitted that
based on the said Government order, three percent posts
have been reserved for persons with disability and,
accordingly, 1% is accommodated within the first 33 posts
in an establishment and then another in the next 67 posts
available and the third upto the 99th post available. The
manner, in which the Government has acted, as aforesaid,
is in breach of their obligation bestowed upon them by the
Legislature as contained in sections 21 and 22 of the Act.
The net result is that no person suffering from blindness or
low vision or from hearing impairment has been given the
benefit of reservation made for them. All those vacancies of
3% of the total vacancies are being supplied by persons
10
suffering from locomotor disability. Further, it has not come
on record that even one single person suffering from
cerebral palsy has obtained the benefit of reservation for
persons suffering from such disability. Though suffering
from locomotor disability and suffering from cerebral palsy
are quite different things, but since the Legislature has
classified them in one category, it goes without saying that
persons suffering from cerebral palsy are required to
compete with persons suffering from locomotor disability for
supplying one vacancy reserved for them.
There is no dispute that the 2 posts reserved for
physically handicapped persons have been supplied by
persons with locomotor disability who where above the
appellant in the merit list of persons suffering from
locomotor disability. At the same time, there is no dispute
that upto 34th post in Community Development and National
Extension (Gazetted) Service and upto 44th post in the
Social Welfare (Gazetted) Service have been supplied and,
accordingly, percentage-wise, 2 posts were available in the
said departments for physically handicapped persons.

11

Though the 44th post in Social Welfare (Gazetted) Service
has been supplied by a physically handicapped person, but
no post in the Community Development and National
Extension (Gazetted) Service has been supplied by a
physically handicapped person. The other post which has
been supplied by a physically handicapped person was in
the Accounts (Gazetted) Service. Therefore, there cannot
be any dispute, as contended by the appellant, that there
was at least one more post available for physically
handicapped persons in addition to the two posts as were
notified.

The question is should we direct that one additional
available post be supplied by the appellant. The appellant
has relied upon a judgment of the Hon’ble Supreme Court
rendered in the case of State of UP v Pawan Kumar
Tiwari, 2005(1) Supreme 3. In that case the Hon’ble
Supreme Court was concerned with filling up of 93 posts of
Civil Judge (Junior Division) in UP Judicial Service. The
Hon’ble Court was not concerned with an issue pertaining to
reservation for persons with disability; they were concerned
12
with reservation of 3 posts horizontally for the category of
freedom fighters and ex-servicemen, but in the general
quota. The said judgment, therefore, is of no help to the
appellant. The next judgment of the Hon’ble Supreme
Court, cited by the appellant, was rendered in Bhudev
Sharma v District Judge Bulandshahr, 2007(8) Supreme

192. In that case, the appellant before the Hon’ble Supreme
Court was a blind person. He was not given the benefit of
reservation, although 2% reservation for physically
handicapped persons was available. The Hon’ble Supreme
Court found that when altogether 30 posts were to be filled
in, 2% thereof works out to 0.6 and the same being more
than half, should have been rounded to one and,
accordingly, one post was available for filling up by a
physically handicapped person. The Hon’ble Supreme
Court, accordingly, ordered. The person who succeeded
before the Hon’ble Supreme Court in that case was a blind
person which must be kept in mind.

The Legislature in section 22 of the Act did not stop by
saying that there should be reservation of 3% in the
13
vacancies for disabled persons; they categorised disabled
persons and said that each such category shall be entitled
to 1% reservation. They also gave the chronology of such
category. The first category has been identified as blindness
or low vision. Therefore, the first 1%, out of the 3% of
vacancies to be reserved for disabled persons, is to be
supplied by a person suffering from blindness or low vision.
The second 1%, out of the 3% of such vacancies, should be
supplied by a person suffering from hearing impairment and
the last 1% by a person suffering from locomotor disability
or cerebral palsy. In the case before the Supreme Court,
referred to above, the appellant being a blind person, was
entitled to the first post available for disabled persons;
whereas the appellant in the case at hand is entitled to the
third post available for disabled persons. That is the
distinction. In the circumstances, and despite holding that
one more post was available for disabled persons, we are
unable to issue a direction for appointment of the appellant.
We, however, direct the State as follows:

i) to identify posts in all establishments which can
be reserved for persons with disabilities. Those
14
posts must not be less than 3% of the posts
available in each of the establishments of the
State which have not been exempted;

ii) while identifying those posts, it must be
ascertained whether the vacancies therein can
be supplied by a person suffering from
blindness / low vision, or whether the same can
be supplied by a person suffering from hearing
impairment or whether the same can be
supplied by a person suffering from locomotor
disability / cerebral palsy;

iii) the posts to be so identified must not, in any
case, be less than 1% of the total posts
available in such establishments which can be
supplied by persons suffering from blindness /
low vision, and, similarly, at least 1% of such
posts to which can be supplied by persons
suffering from hearing impairment and at least
1% of such posts which can be supplied by
persons suffering from locomotor disability /
cerebral palsy;

iv) not exceeding 3 years, a review shall be made
in each such establishment of the State to reidentify
such posts and to update the same
taking into consideration the development in
technology;

15

v) the first of the 3% of the total vacancies should
be supplied by a person suffering from
blindness / low vision; the second by the
person suffering from hearing impairment and
the third by the person suffering from locomotor
disability / cerebral palsy;

vi) reservation for persons suffering from disability
shall be horizontal and, accordingly, a disabled
person shall fill up that post which is available
in the category to which he belongs, but as a
disabled person; and

vii) deficiencies in each establishment shall be
supplied soon and directions as above, would
be complied with before making new direct
recruitments.

With the directions as above, we dispose of the
appeal.

(Mansoor Ahmad Mir) (Barin Ghosh)
Judge Chief Justice.

Jammu,
.03.2009
A. H. Khan, JR.

Jyotsna Mengi vs Chairman on 30 March, 2009

Jammu High Court
Jyotsna Mengi vs Chairman on 30 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 205 OF 2006    
Jyotsna Mengi 
Petitioner
Chairman,J&K PSC & ors   
Respondent  
!Appellant in person
^Mrs. Seema Shekher, AAG AND Mr. D. C. Raina, Sr. Advocate with Mr. F.A.Natnoo, Advocate.    

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge  
 DATE: 30/03/2009 
: J U D G M E N T :

Per Barin Ghosh, CJ:

The Jammu and Kashmir Public Service Commission
invited applications for filling up of 124 posts in eight
different services by a notification dated December 28,
2001. Subsequently, by notification dated November 27,
2002, the number of posts was raised to 138. The
notifications mentioned that two posts have been reserved
for disabled persons. The appellant made a representation
2
that, having regard to the number of posts to be filled up,
the number of posts reserved for disabled persons should
be more. The said representation was not addressed to.
The appellant is a disabled person, for, she has locomotor
disability. She responded to the advertisement and sought
to be considered for the posts reserved for disabled
persons. She was, accordingly, considered and, having
regard to what has been stated in the judgment and order
under appeal, she was adjudged fourth best amongst
disabled candidates. The appellant having thus been
adjudged was not accommodated in the two posts reserved
for disabled persons and, hence, she filed the writ petition.
The writ petition having been dismissed, the present appeal
has been preferred.

On the basis of the papers and records produced
before us there is now no dispute that the person who was
adjudged best amongst disabled persons was, in fact, not a
disabled person and, accordingly, he was not considered in
the category of disabled persons. Accordingly, the second
and third candidates, adjudged amongst disabled persons,
3
have been accommodated in the advertised two posts
reserved for disabled persons. In the event a third post is
available. It is the contention of the appellant she should be
accommodated in such post.

We have made an endeavour to ascertain whether, in
fact, a third post was available or not and will discuss it
hereinafter, but before doing so, we must highlight that the
manner in which steps have been taken to fill up posts
reserved for disabled persons, the State has given a go-by
to the law made by it, namely, the Jammu and Kashmir
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1998, which came into
force on May 19, 1998.

In this connection, one must note sections 21 and 22
of the Act, which are set out below:

“21. Identification of posts which can be
reserved for persons with disabilities.
The Government shall.-

(a) identify posts, in the establishments
which can be reserved for the persons
with disabilities;

4

(b) at periodical intervals not exceeding three
years, review the list of posts identified
and up-date the list taking into
consideration the development in
technology.

22. Reservation of posts.

The Government shall appoint in every
establishment such percentage of vacancies not
more than three percent for persons or class of
persons with disabilities of which one percent,
each shall be reserved for persons suffering
from.-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in
the posts identified for each disabilities;
Provided that the Government may, having
regard to the type of work carried on in any
department or establishment, by notification,
subject to such conditions, if any, as may be
specified in such notification, exempt any
establishment from the provisions of this Section.”
A look at sections 21 and 22 of the Act would amply make it
clear that, unless the State Government exempts any
establishment from the provisions of section 22 of the Act, it
is mandatory upon the Government to appoint in every
establishment disabled persons and, for that matter, to
identify the posts where disabled persons can be
accommodated. Periodical review for identifying the posts,
5
where disabled persons can be accommodated, is also a
mandate of law. The law, at the same time, mandates that
such review should be made at intervals not exceeding
three years.

The records show that a number of establishments of
the State have identified posts in which displaced persons
cannot be appointed, and while doing so, did not identify
even one single post, where they can be appointed. At the
same time, the Government by notification did not exempt
any such establishment from the provisions of section 22 of
the Act. The Government, therefore, acted and is still acting
in breach of the law made by the Legislature.
Further more, section 22 of the Act mandates
reservation for disabled persons of at least 3% of the total
vacancies. The Government appears to have made such
reservation, i.e., the minimum. Section 22 of the Act further
directs that 1% of the minimum of 3% vacancies shall be
reserved for persons suffering from blindness or low vision;
1% of 3% for persons suffering from hearing impairment
and the remaining 1% of 3% for persons suffering from
6
locomotor disability / cerebral palsy. The Government has
not done so. Records placed before us demonstrate that all
the reserved vacancies created for disabled persons are
being supplied by persons suffering from locomotor
disability. The Government, therefore, is acting in breach of
the law with impunity. We hope that the Government would
act in the manner the Legislature wants it to act. It is the
duty of the Government to identify posts in all
establishments which have not been exempted and which
may be supplied by a person suffering from blindness or low
vision and the percentage thereof should not be less than
1% in the establishment. Similar identification is required to
be made for persons suffering from hearing impairment and
from locomotor disability or cerebral palsy and those
identified posts are required to be supplied by the persons
having such disability. In course of dealing with the matter,
we have found that all posts reserved for disabled persons
are being supplied by persons suffering from locomotor
disability. We hope and expect that the Government mend
its ways and act in discharge of its statutory duty and
7
obligation owing to disabled persons as recognized by the
Legislature.

Coming to the case at hand, initially the appellant
contended that since in terms of the notifications, 138 posts
were to be filled in, there should have been at least 4 posts
available for being filled up by disabled persons. Later, on
realization that 3% reservation in every establishment being
the mandate, she contended before us that no information
has been supplied by the State as to how many vacancies
were available in different establishments for which
recruitment process was initiated by issuing the subject
notifications. Accordingly, we directed production of
appropriate records, including the roster and the
notifications pertaining to maintenance of roster, fixing the
roster points to accommodate persons with disabilities.
Such records have been produced along with appropriate
notifications.

It appears hat on September 29, 1998 a notification
was issued when it was directed that to effect the
reservation for physically disabled persons, a separate
8
register of 100 points shall be maintained in each identified
class of posts filled through direct recruitment in which point
nos.1, 34 and 67 will be reserved for the physically disabled
persons and every Head of Department may start point no.1
with any category of disability. The appellant contended
that, in view of such direction, in the event a post in any
establishment is filled in which it is the 34th post, there must
be 2 posts available for physically disabled persons. The
appellant contended that in Community Development and
National Extension (Gazetted) Service 34 posts were filled
in and, at the same time, in the Social Welfare (Gazetted)
Service 44 posts had been filled in and, accordingly, there
must be at least 4 posts available for filling up by disabled
persons.

learned counsel for the State submitted that
Government order dated September 29, 1998 was not
acted upon. She submitted that maintenance of a separate
register of 100 points for disabled persons and then filling
up the same by disabled persons only in point nos. 1, 34
and 67 did not work out. In the circumstances, the
9
Government came up with another order dated March 13,
2001 based on Cabinet decision dated February 8, 2001.
The said order, according to the learned counsel for the
State, authorised 3% reservation in direct recruitments
under the provisions of the said Act in gazetted and nongazetted
posts as identified by expert committee and
detailed in annexure thereto. The said annexure, as
aforesaid, only identified posts where physically
handicapped people cannot work. It was submitted that
based on the said Government order, three percent posts
have been reserved for persons with disability and,
accordingly, 1% is accommodated within the first 33 posts
in an establishment and then another in the next 67 posts
available and the third upto the 99th post available. The
manner, in which the Government has acted, as aforesaid,
is in breach of their obligation bestowed upon them by the
Legislature as contained in sections 21 and 22 of the Act.
The net result is that no person suffering from blindness or
low vision or from hearing impairment has been given the
benefit of reservation made for them. All those vacancies of
3% of the total vacancies are being supplied by persons
10
suffering from locomotor disability. Further, it has not come
on record that even one single person suffering from
cerebral palsy has obtained the benefit of reservation for
persons suffering from such disability. Though suffering
from locomotor disability and suffering from cerebral palsy
are quite different things, but since the Legislature has
classified them in one category, it goes without saying that
persons suffering from cerebral palsy are required to
compete with persons suffering from locomotor disability for
supplying one vacancy reserved for them.
There is no dispute that the 2 posts reserved for
physically handicapped persons have been supplied by
persons with locomotor disability who where above the
appellant in the merit list of persons suffering from
locomotor disability. At the same time, there is no dispute
that upto 34th post in Community Development and National
Extension (Gazetted) Service and upto 44th post in the
Social Welfare (Gazetted) Service have been supplied and,
accordingly, percentage-wise, 2 posts were available in the
said departments for physically handicapped persons.

11

Though the 44th post in Social Welfare (Gazetted) Service
has been supplied by a physically handicapped person, but
no post in the Community Development and National
Extension (Gazetted) Service has been supplied by a
physically handicapped person. The other post which has
been supplied by a physically handicapped person was in
the Accounts (Gazetted) Service. Therefore, there cannot
be any dispute, as contended by the appellant, that there
was at least one more post available for physically
handicapped persons in addition to the two posts as were
notified.

The question is should we direct that one additional
available post be supplied by the appellant. The appellant
has relied upon a judgment of the Hon’ble Supreme Court
rendered in the case of State of UP v Pawan Kumar
Tiwari, 2005(1) Supreme 3. In that case the Hon’ble
Supreme Court was concerned with filling up of 93 posts of
Civil Judge (Junior Division) in UP Judicial Service. The
Hon’ble Court was not concerned with an issue pertaining to
reservation for persons with disability; they were concerned
12
with reservation of 3 posts horizontally for the category of
freedom fighters and ex-servicemen, but in the general
quota. The said judgment, therefore, is of no help to the
appellant. The next judgment of the Hon’ble Supreme
Court, cited by the appellant, was rendered in Bhudev
Sharma v District Judge Bulandshahr, 2007(8) Supreme

192. In that case, the appellant before the Hon’ble Supreme
Court was a blind person. He was not given the benefit of
reservation, although 2% reservation for physically
handicapped persons was available. The Hon’ble Supreme
Court found that when altogether 30 posts were to be filled
in, 2% thereof works out to 0.6 and the same being more
than half, should have been rounded to one and,
accordingly, one post was available for filling up by a
physically handicapped person. The Hon’ble Supreme
Court, accordingly, ordered. The person who succeeded
before the Hon’ble Supreme Court in that case was a blind
person which must be kept in mind.

The Legislature in section 22 of the Act did not stop by
saying that there should be reservation of 3% in the
13
vacancies for disabled persons; they categorised disabled
persons and said that each such category shall be entitled
to 1% reservation. They also gave the chronology of such
category. The first category has been identified as blindness
or low vision. Therefore, the first 1%, out of the 3% of
vacancies to be reserved for disabled persons, is to be
supplied by a person suffering from blindness or low vision.
The second 1%, out of the 3% of such vacancies, should be
supplied by a person suffering from hearing impairment and
the last 1% by a person suffering from locomotor disability
or cerebral palsy. In the case before the Supreme Court,
referred to above, the appellant being a blind person, was
entitled to the first post available for disabled persons;
whereas the appellant in the case at hand is entitled to the
third post available for disabled persons. That is the
distinction. In the circumstances, and despite holding that
one more post was available for disabled persons, we are
unable to issue a direction for appointment of the appellant.
We, however, direct the State as follows:

i) to identify posts in all establishments which can
be reserved for persons with disabilities. Those
14
posts must not be less than 3% of the posts
available in each of the establishments of the
State which have not been exempted;

ii) while identifying those posts, it must be
ascertained whether the vacancies therein can
be supplied by a person suffering from
blindness / low vision, or whether the same can
be supplied by a person suffering from hearing
impairment or whether the same can be
supplied by a person suffering from locomotor
disability / cerebral palsy;

iii) the posts to be so identified must not, in any
case, be less than 1% of the total posts
available in such establishments which can be
supplied by persons suffering from blindness /
low vision, and, similarly, at least 1% of such
posts to which can be supplied by persons
suffering from hearing impairment and at least
1% of such posts which can be supplied by
persons suffering from locomotor disability /
cerebral palsy;

iv) not exceeding 3 years, a review shall be made
in each such establishment of the State to reidentify
such posts and to update the same
taking into consideration the development in
technology;

15

v) the first of the 3% of the total vacancies should
be supplied by a person suffering from
blindness / low vision; the second by the
person suffering from hearing impairment and
the third by the person suffering from locomotor
disability / cerebral palsy;

vi) reservation for persons suffering from disability
shall be horizontal and, accordingly, a disabled
person shall fill up that post which is available
in the category to which he belongs, but as a
disabled person; and

vii) deficiencies in each establishment shall be
supplied soon and directions as above, would
be complied with before making new direct
recruitments.

With the directions as above, we dispose of the
appeal.

(Mansoor Ahmad Mir) (Barin Ghosh)
Judge Chief Justice.

Jammu,
.03.2009
A. H. Khan, JR.

Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009

Jammu High Court
Rajinder Kumar Sharma vs Jyoti Sharma on 30 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 64 OF 2006    
Rajinder Kumar Sharma  
Petitioner
Jyoti Sharma 
Respondent  
!Mr. Z. A. Shah, Senior Advocate with Mr. Vipan Gandotra, Advocate
^M/s. P. N. Raina, Rahul Bharti and Sindhu Sharma, Advocates 

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Mansoor Ahmad Mir, Judge  
 DATE: 30/03/2009 
: J U D G M E N T :

Per Barin Ghosh, CJ:

In the writ petition, which has been allowed by the
judgment and order under appeal, the petitioner2
respondent sought a writ of certiorari quashing the
reference made to Lok Adalat and also the order passed
by Lok Adalat. It was contended that the reference to Lok
Adalat was impermissible. The said contention has been
accepted. It was also contended that Lok Adalat could not
pass the order on the date the same was passed, as on
that date, Lok Adalat had no authority to deal with the
matter. The said contention too has been accepted.
The facts giving rise to filing of the writ petition are
that the appellant filed a petition seeking dissolution of his
marriage with the petitioner-respondent by decree of
divorce on the grounds of cruelty and desertion, which are
available grounds in terms of Section 13 of the Jammu
and Kashmir Hindu Marriage Act, 1980. The petitionerrespondent
not only contested the petition but also filed an
application seeking dismissal thereof, since she returned
3
to her matrimonial home and started residing with the
appellant. Upon dismissal of her application, the
petitioner-respondent also filed a revision application.
Soon after dismissal thereof, the appellant and the
petitioner respondent, on January 21, 2004, filed a petition
for dissolution of their marriage by a decree of divorce on
mutual consent as may be had under Section 15 of the
Act. In the said petition, amongst others, they stated that
they are government employees and have not cohabited
since April 20, 2002. In the application, it was also stated
that the appellant will pay a sum of Rs. 4.00 lacs in cash
or by way demand draft to the petitioner-respondent in lieu
of full and final maintenance. It was also stated that the
petitioner-respondent shall have one-third share in the
house of which the appellant was the owner. The petition
contained the plan of the house and demarcated one-third
4
portion thereof which would come to the share of the
petitioner-respondent.

On January 21, 2004 itself, the appellant and the
petitioner-respondent deposed before court stating that
they have of their own volition, after understanding the
true purport of the petition for divorce on mutual consent,
have filed the same. After such deposition was recorded,
both of them and their counsel requested the Court to put
up the case before Lok Adalat. In the circumstances, the
Court by an order dated 21st January, 2004 directed the
case to be put up before Lok Adalat on January 27, 2004.
On January 27, 2004, the appellant as well as the
petitioner-respondent deposed before Lok Adalat and,
while doing so, not only stated that they want divorce on
the terms and conditions contained in the said petition for
5
divorce on mutual consent, but also a decree to that effect
be passed by Lok Adalat. Thereupon, before Lok Adalat,
the appellant paid a sum of Rs. 1.00 lac in cash and
another sum of Rs. 3.00 lacs by Demand Draft to the
petitioner-respondent on January 27, 2004. Thereafter,
Lok Adalat on January 27, 2004 passed the order
dissolving the marriage of the appellant and the petitionerrespondent
after recording that the appellant and the
petitioner-respondent were told in Lok Adalat to reconsider
the petition for mutual divorce and were advised to live
together but they declined to do so.

Soon thereafter, the writ petition was filed. In the writ
petition, it was contended that in relation to the petition for
divorce by mutual consent, there was no dispute requiring
compromise or settlement by Lok Adalat and, accordingly,
the same could not be referred to Lok Adalat. It was also
6
stated that the reference was bad, inasmuch as the court
failed to record its satisfaction before referring the petition
for divorce by mutual consent to Lok Adalat. It was also
contended that the petition for mutual consent could not
be decided on the date the same was purported to be
decided by Lok Adalat, for, on the date the same was
considered and disposed of, Lok Adalat had no jurisdiction
to decide the same. As aforesaid, the Writ Court accepted
such contentions.

We have heard at length the counsel appearing on
behalf of the parties and have considered the materials
before us.

The moot point urged was whether the Court lacked
inherent jurisdiction to refer the said petition for divorce on
mutual consent to Lok Adalat and, if not, whether the
7
same was improper exercise of jurisdiction? The other
point is whether Lok Adalat lacked inherent jurisdiction to
pass a decree for divorce on mutual consent on the date
the same was passed and, if not, whether the exercise of
such jurisdiction was improper?

It was urged by the learned counsel for the petitionerrespondent
that disputes inter se parties in connection
with a litigation can be referred to Lok Adalat, but when a
joint petition was filed by both the parties to the lis,
seeking divorce on mutual consent, there was no dispute
inter se them and, accordingly, the petition for divorce by
mutual consent could not be referred to Lok Adalat. It was
additionally contended that it was incumbent upon the
Court before referring the petition for divorce by mutual
consent to satisfy itself that the dispute is such that the
same may be resolved through the intervention of Lok
8
Adalat, but in the instant case, the same was not done. It
was contended that in any event, before expiry of six
months from the date of presentation of a petition for
divorce on mutual consent, neither the court nor Lok
Adalat could deal with the same and, accordingly, Lok
Adalat, as on the date of passing of the decree for divorce
on mutual consent, lacked inherent jurisdiction to pass the
decree. Additionally, it was stated that in any event, it was
the bounded duty of Lok Adalat to wait for six months from
the date of presentation of the petition for divorce on
mutual consent in order to afford the parties to the petition
an opportunity to reconsider their consent for divorce on
mutual consent and that having not been done, the decree
for divorce is improper.

The learned counsel for the appellant submitted that
it is not the disputes but a lis that can be referred to Lok
9
Adalat and when both the parties are seeking such
reference, it is not necessary for the court to satisfy that
the lis may be referred to Lok Adalat, which satisfaction
becomes necessary when the request for reference is
made by one of the parties to the lis. By referring to
various judgments, the learned counsel for the appellant
submitted that the wait period of six months is not
mandatory, the same is directory. He additionally
submitted that since Lok Adalat did not lack inherent
jurisdiction, the decree of divorce granted by Lok Adalat
cannot be said to be illegal but may only be said to be an
improper exercise of jurisdiction, and since such
jurisdiction was exercised at the request of the petitionerrespondent
also, the petitioner-respondent is estopped
from contending that exercise of such jurisdiction by Lok
Adalat was improper.

10

In reply, the learned counsel for the petitionerrespondent
contended that parties to a lis, even by
agreement, cannot vest jurisdiction in a court or an
Authority which does not have jurisdiction, which can only
be vested by a statute.

In order to appreciate respective contentions and
submissions of the parties, it would be necessary for us to
look into the laws governing the field. Before we take a
closer look at Section 15 of the Act, it would be
appropriate on our part to take note of certain salient
features of said Section. A decree for divorce by mutual
consent, if is to be had under Section 15 of the Act, both
the parties to the marriage together are required to file a
petition therefor. They can do so only when they have
been living separately for a period of one year at least
11
before presentation of the petition. They must say in the
petition that they have mutually agreed that the marriage
should be dissolved. Once such a petition is filed, both the
parties are required to move the court to seek divorce by
mutual consent, but they can so move not before expiry of
six months from the date of presentation of the petition
and not later than eighteen months from the said date. It
provides that the petition may be withdrawn in the
meantime, i.e., within eighteen months after presentation
thereof. When the Court is thus moved, it becomes
obligatory for the Court to hear the parties and to make
inquiries and to be satisfied that the marriage had been
solemnized and that the averments made in the petition
are true. Only then the court may pass a decree of divorce
which shall be effective from the date of the decree.

12

When, therefore, a joint petition for dissolution of
marriage by mutual consent is filed, apparently, there is no
dispute inter se parties to the petition as regards the
object thereof. Therefore, if a dispute between the parties
to the lis can only be referred to Lok Adalat, then of
course, a petition for divorce by mutual consent can not be
referred to Lok Adalat. At the same time, it is settled law
that if the forum, even if chosen or agreed to by the
parties, lacks inherent jurisdiction, any thing done by the
said forum is per se illegal.

We are, therefore, required to look at the appropriate
provisions of law. Section 18 of the Jammu and Kashmir
Legal Services Authorities Act, 1997, deals with Lok
Adalats. Sub-section 4 thereof provides as follows:
“(4) Lok Adalat shall have jurisdiction to
determine and to arrive at a compromise or
13
settlement between the parties to a dispute in
respect of,–

(i) any case pending before; or

(ii) any matter which is falling within the
jurisdiction of and is not brought
before, any court for which the Lok
Adalat is organized:

Provided that the Lok Adalat shall have no
jurisdiction in respect of any case or matter
relating to an offence not compoundable under
any law.”

We have to understand the meaning of the words
“parties to a dispute in respect of any case pending
before”. Whereas, the learned counsel for the appellant
submitted that the words “parties to a dispute” have been
used to confine vesting of jurisdiction to arrive at a
compromise or settlement between them and not to others
or strangers; the learned counsel for the petitionerrespondent
submitted that unless there is a dispute, there
cannot be parties thereto.

14

A compromise or settlement, no doubt, can be
arrived at between warring parties or between disputing
parties. When an application is filed by both parties
seeking same relief, it may be correctly contended that
they are neither warring nor disputing parties. However,
the object of vesting jurisdiction in Lok Adalat is to arrive
at a compromise or settlement between the parties to a
dispute in any case pending before any court for which
Lok Adalat is organized. A dispute in respect of any case
pending before any court for which Lok Adalat is
organized means any dispute in relation thereto and not
necessarily a dispute arising out of the disagreement
between parties. There may not be any dispute in
between the parties to a petition for divorce by mutual
consent but since vesting of jurisdiction in Lok Adalat is to
arrive at a compromise or settlement in between them, the
15
dispute may be in respect of the very case pending before
the court for which Lok Adalat is organized, including
those pertaining to the obligation of the court to resolve
the lis. Therefore, it would not be appropriate to hold that
unless there is a dispute between the parties in any case
pending before any court; Lok Adalat shall have no
jurisdiction to arrive at a compromise or settlement
between such parties. It is true that ordinarily dispute
means ‘disagreement’ and, accordingly, parties to a
dispute would ordinarily mean ‘parties who disagree’ and
vesting of jurisdiction in Lok Adalat is to arrive at a
compromise or settlement in between them. Accordingly,
ordinarily, when there is a disagreement between the
parties in any case pending before a court for which Lok
Adalat is organized, Lok Adalat shall have jurisdiction, but
limiting thus and no further would be a too narrow
16
construction, for, as we have stated above, the parties to a
dispute would not mean, only the parties who are in
disagreement, but also those parties who seek redressal
through the intervention of court, may be they are seeking
same relief in agreement with each other. In Smt. Shilpa
v. Abhinav,
reported in 2008 AIRSCW 8033, a petition for
divorce by mutual consent has been entertained by Lok
Adalat of the Hon’ble Supreme Court, which suggests that
Lok Adalat organized for Hon’ble Supreme Court had
authority to do what it did.

Learned counsel for the petitioner-respondent
submitted that in the judgment referred to above, the
question of jurisdiction of Lok Adalat was not addressed.
He submitted that if the interpretation we have given is
accepted, then the words ‘to a dispute’, as provided in
Sub-section 4 of Section 18 of the Act, would become
17
otiose. He submitted that without reading the said words in
the Statute, the same meaning, as we have given, can be
had by reading ‘between the parties in respect of any case
pending before’. It is true that in the case referred to
above, the question whether the Hon’ble Supreme Court
Lok Adalat has jurisdiction over a petition for grant of
divorce by mutual consent was not gone into. However,
the interpretation given by us would not make the words
‘to a dispute’, used in Sub-section 4 of Section 18 of the
Act, otiose, inasmuch as vesting of jurisdiction in Lok
Adalat to arrive at a compromise or settlement is not only
in between the parties in respect of any case pending
before any court for which Lok Adalat is organized, but
also in relation to a dispute, but such dispute need not be
a dispute in between them, but may be also with regard to
the case pending before the court, settlement whereof
18
does not depend only on agreement of the parties but also
depends upon other factors, including satisfaction of the
court as a pre-condition for obtaining what the parties
desired to obtain by consent or agreement. In terms of
Section 28 (1) (c) of the Jammu and Kashmir Hindu
Marriage Act, 1980, when a divorce is sought on the
ground of mutual consent, the court is required to be
satisfied that the consent has not been obtained by force,
fraud or undue influence and, therefore, an application for
grant of divorce on the ground of mutual consent
inherently raises a dispute as to whether the consent has
been obtained by force, fraud or undue influence.
We, therefore, hold that Lok Adalat has jurisdiction in
respect of a petition presented for obtaining divorce by
mutual consent and it does not lack inherent jurisdiction in
respect thereof.

19

In terms of Sub-section (1) of Section 19 of the
Jammu and Kashmir Legal Services Authorities Act, if the
parties agree, the court is bound to refer the case to Lok
Adalat. Only when one of the parties makes an application
for referring the case to Lok Adalat, the court is required to
satisfy that there are chances of settlement and that the
matter is an appropriate one to be taken cognizance of by
Lok Adalat. In the instant case, the parties agreed and,
accordingly, the court had no other option but to refer the
case to Lok Adalat.

Sub-section (2) of Section 15 of the Jammu and
Kashmir Hindu Marriage Act, 1980 is as follows:-
“2. On the motion of both the parties made not
earlier than six months after the date of the
presentation of the petition referred to in subsection
(1) and not later than eighteen months
after the said date, if the petition is not withdrawn
20
in the meantime, the court shall, on being
satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a
marriage has been solemnized and that the
averments in the petition are true, pass decree of
divorce declaring the marriage to be dissolved
with effect from the date of the decree.”

It is, therefore, clear that the court can be
activated to consider a petition for divorce by mutual
consent on the motion of both the parties. The
embargo is on the parties. They can move the court not
earlier than six months after the date of the
presentation of the petition. It does not say that before
expiry of six months after the date of the presentation
of the petition, the court shall have no power to
consider the petition. Therefore, if the court considers
the petition on the motion of both the parties made
earlier than six months after the date of presentation of
the petition, it would not be appropriate to hold that the
21
court lacked inherent jurisdiction to consider the
petition when the same was considered. It is true that
the object of the sub-section is to grant the parties to
reconsider the consent given by them within a period of
at least six months after the date of presentation of the
petition and, accordingly, it would be appropriate on the
part of the court not to permit the parties to move the
court for consideration of the petition before expiry of at
least six months after the date of presentation of the
petition, but if the court does not do so, it cannot be
said because the court did not do so, it lacked
jurisdiction to consider the petition, for, despite the
embargo, the parties moved earlier.

It is one thing that the court had no jurisdiction at
all, i.e., it lacked inherent jurisdiction, the other is that
the court had jurisdiction but it exercised such
22
jurisdiction improperly. The consequence of the first
episode would be total nullity; whereas exercise of
improper jurisdiction would result in a wrong order. In
order to understand the outcome of exercise of
jurisdiction by the court which lacked inherent
jurisdiction and the outcome of exercise of jurisdiction
by the court when it did not lack inherent jurisdiction but
decided the same illegally or incorrectly, we have taken
note of the judgment of the Hon’ble Supreme Court
rendered in the case of Official Trustee, West Bengal
v. Suchindra Nath Chatterjee,
reported in AIR 1969
SC 823, where the Hon’ble Supreme Court held that
what is relevant is whether the court had the power to
grant the relief asked for in the application made to it
and that if the court had competence to pronounce on
the issue presented for its decision then the fact that it
23
decided that issue illegally or incorrectly, is wholly
besides the point. Since we have held that neither the
court lacked inherent jurisdiction to refer the case to
Lok Adalat, nor Lok Adalat lacked inherent jurisdiction
to pass the decree for divorce by mutual consent as on
the date it passed the same, it cannot be said that the
reference to Lok Adalat and the decree for divorce
passed by Lok Adalat are nullity.

It is true that a writ of certiorari can be sought to
correct an illegal order passed by an inferior authority.
We are ad idem with the learned counsel for the
petitioner-respondent that Lok Adalat should not have
permitted the parties to move it to have the petition for
divorce considered by them before expiry of six months
from the date of presentation thereof, but not having
done so at the instance of the petitioner-respondent
24
too, it would be inappropriate on our part to permit the
petitioner-respondent to question such inaction on the
part of Lok Adalat. It is true that the parties, by consent,
cannot vest jurisdiction to a court which does not have
jurisdiction to entertain the litigation, but as aforesaid,
the bar in Section 15 (2) of the Jammu and Kashmir
Hindu Marriage Act, 1980, is not on the court but is on
the parties, and if the parties have breached the bar
consciously, they cannot be permitted to take
advantage thereof.

It was contended that the public policy of giving an
opportunity to rethink, as contained in sub-section 2 of
Section 15 of the Jammu and Kashmir Hindu Marriage
Act, 1980, would be defeated if the decree passed by
Lok Adalat is not interfered with. It is true that sub25
section 2 of Section 15 of the Act contains a public
policy whereby and under it grants time of at least six
months to the parties to rethink the consent given by
them for dissolution of their marriage, but a person,
who did not wait for the time given for such rethinking,
cannot be permitted to turn around and contend that he
should be permitted to rethink after having had
concluded the matter at his/her own volition.
It was contended that the said decree was
obtained by fraud, coercion and intimidation. There was
no scope to prove the same in a writ petition. For that,
it was obligatory on the part of the petitionerrespondent
to approach Lok Adalat.

26

For the reasons as above, we set aside the
judgment and order under appeal and dismiss the writ
petition.

(Mansoor Ahmed Mir) (Barin Ghosh)
Judge Chief Justice.

Jammu,
30.03.2009
Tilak, Secy.

Haji Mohammad Ishaq vs State Of J&K & Ors on 16 March, 2009

Jammu High Court
Haji Mohammad Ishaq vs State Of J&K & Ors on 16 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR At SRINAGAR             
LPA No. 261 of 2007 
Haji Mohammad Ishaq   
   Haji Tahir Hussain & ors
   petitioner
State of J&K & ors.
 respondents    
!Mr. M. A. Qayoom, Advocate  
  Mr. G. A. Lone, Advocate
^ Mr. Hashim Hussain, Dy. AG  
   Mr. M. Y. Bhat, Advocate
   Mr. G. N. Shaheen, Advocate

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice M. Yaqoob Mir, Judge
Date: 16/03/2009 
: J U D G M E N T:

Per Barim Ghosh, CJ (Oral)
Villagers of certain villages situated within the district of Kargil
represented for creation of
a new block to bring those villages within the said new block. They represented
that the block in
which they have been clubbed is inconvenient for them, for, they have to travel
a
2 long distance to reach to the block headquarter where they are required to
discharge many a
duties and functions in connection with the lands held by them in the villages.
This representation
was being considered by the political executive when the location of the
proposed headquarters of
the new block, if sanctioned to be created, was also being considered.
Ultimately, a political
decision was taken to grant to the villagers of those villages a new block. The
said decision was
communicated by a Government decision dated July 6, 2005 when it was stated that
the
headquarters of the said newly constituted block shall be at Rahimthang.
In the writ petition field by three petitioners in their personal capacity, they
contended that the
executive decision of fixing the headquarter of the new block, flowing from the
political decision to
create the said new block, was erroneous, improper, arbitrary and capricious,
inasmuch as
Rahimthang as the headquarters for the new block is not only inconvenient for
the villagers, but the
decision to select Rahimthang as the headquarters of the said new block is also
contrary to the
conscious decision of the State to locate all the State facilities in the
village of Trespoon where not
only the hospital is situate but also the sheep breeding farm has come up
alongwith post office and
other facilities. It was stated that village Trespoon was
3 selected for all those facilities in view of the fact that the said village
has become a halqa
Panchayat which suggests that a large number of
People are residing at the said village. It was suggested that there is no just
reason why ignoring
Trespoon, Rahimthang was chosen. In the counter affidavit filed by the State,
while opposing the
writ petition, it almost took a stand that the choice of Rahimthang having been
made by the
executive, the same is not interfereable and not, at least, at the instance of
the writ petitioners. In
other words, they contended that whatever they had done is beyond question and
in particular by
the petitioners. The private respondents, who were parties to the writ petition
contended that taking
into consideration the reasons as were then taken note of, it was decided to
have the headquarters of
the new block at Rahimthang. While the writ petition was pending, a corrigendum
was issued on
July 22, 2005 replacing the words “HQ. Rahimthang” to “HQ. Rahimthang-
Marpothang” in the
original notification dated July 6, 2005. On May 19, 2006 on the writ petition,
an order of status
quo was passed. Soon thereafter, by an order dated July 10, 2006, the said
corrigendum was
cancelled. The above actions led to filing of a fresh writ petition by the
petitioners challenging the
corrigendum as well as the rescission thereof. In that writ petition, they added
one more private
respondent who was then a Minister of
4the State. It was contended that it was at his instance Rahimthang was decided.
They also filed a
contempt petition, contending that the order of status quo has been breached by
issuing the order
rescinding the corrigendum.

The learned Single Judge, who dealt with the writ petitions, dismissed the same
and also disposed
of the contempt petition, principally, on the ground that the bases for fixing
headquarter is based on
consideration of executive requirement and, accordingly, executive exigency and
preference
outweighs anything else. While doing so, the learned Judge took notice of the
judgment of the
Hon’ble Supreme Court rendered in the case of Union of India v. Kannadapara
Sanghatanegala
Okkuta & Kannadigara, 2002(10) SCC 226. The learned Judge also took note of a
judgment of the
Hon’ble Supreme Court rendered in the case of Delhi Science Forum v. Union of
India, 1996 (2)
SCC 405. While the later case dealt with policy decision, with which we are not
concerned here
inasmuch as fixation of headquarter in no certain terms can be said to be a
political decision or a
policy decision, but the first mentioned case of the Hon’ble Supreme Court may
apply. At the same
time, however, the same applies to headquarters of a venture with which public
as such has no
direct or indirect interaction. In other words, when the
5headquarter of an organization with which the people have generally no scope of
interaction, and
is purely for meeting the requirement of administration, i.e., headquarter of a
railway, is to be set
up, the decision of the organization alone to locate the same should be taken
note of and, in that
connection, that decision itself will hold, for, it is the convenience of the
organization alone that is
to be taken note of. However, when the headquarter of a block is to be located,
where the people
will interact and will be interacted, the decision to locate the same must be
taken in the backdrop of
convenience of the people also for whose benefit the political decision to
create a new block has
been taken. The executive, while implementing such a political decision, cannot
escape by saying
that it has taken the decision. It would be required to show that, in the facts
and circumstances of
the case, the decision taken was a reasonable decision.
It is well settled in law that the writ Court does not deal with the decision
rendered by an inferior
authority. The writ Court also does not sit in appeal on a decision rendered by
an inferior authority.

The writ Court is only to see whether the decision making process adopted was
fair and reasonable.

In the instant case, the process to select Rahimthang as the headquarter of the
new block has not
come on record. No record suggesting that there had been an application of
6mind to ascertain public convenience or inconvenience was produced before the
writ Court. This
Court gave an opportunity to produce the same. The records have been produced
but they do not
contain anything from where it can be gathered that any effort had been made,
while fixing the
headquarter of the new block at Rahimthang, to ascertain public convenience and
inconvenience.

The conclusion, therefore, would be that the decision making process of
selecting Rahimthang as
the headquarter of the new block was so faulty that the decision rendered by
adopting such
procedure is vitiated as an illegal exercise of power and authority.

Learned counsel for the State submitted that the writ petitions, at the
instance of three
petitioners not residing in the village Rahimthang, are not maintainable. He
submitted that the writ
petitions were not representative actions, and, accordingly, people of the new
block were not
interested in the manner interest had been shown by the petitioners. It was
submitted that in the
event the grievance of the petitioners are to be taken note of, then in future
people residing in other
villages, where also the headquarter has not been set up, would come and express
their grievance.

The political decision to give a new block has been taken to benefit each and
every resident of
those villages which have been clubbed together under the said block. The
7said decision is for the benefit of each of such villagers. Each of them has
equal right of being
treated fairly. Each of them has a right to contend that he has not been fairly
treated in the matter of
selecting the headquarter. It is such right the petitioners have invoked in the
said writ petitions. It
cannot be said that as individuals they do not have any right to approach the
Court and they were
required to approach the Court only as representatives of other villagers
residing in the locality.

The answer which the petitioners expect from the State would have been the
answer to any
other person as that of the petitioners challenging or questioning the decision
to have the
headquarter of the new block at Rahimthang. The answer in all such cases would
have been
establishment on facts that an effort was made to ascertain public element in
choosing the site of
the headquarter. That being absent in the instant case, in all other cases that
may come in future, the
State will face the same fate.

Learned counsel for the private respondents, namely, villagers who reside
in the village
Rahimthang, submitted that at the time proposal was made for carving out a new
block for the
villages in question, considering the situation of Rahimthang, it was decided
that Rahimthang
would be the best located place for having the
8 headquarter of the new block. It is true that in a letter it was so indicated,
but while doing so,
surprisingly, one of the halqa panchayats, which formed part of the new block,
had been totally left
out. The said state of affair clearly demonstrates that while writing the said
letter, the manner in
which the said officer, i.e., the writer thereof, was obliged to discharge his
duties owing to the
villagers of the said villages, did not discharge the same and, accordingly,
that letter cannot be said
to be a piece of evidence suggesting that the executive discharged its
obligation in selecting
Rahimthang as headquarter of the said block in public interest or by taking into
account public
elements. It is true that before the decision was taken, a report was submitted
where it was stated
that Rahimthang be the headquarter of the new block to be created, but the fact
remains that the
report did not suggest why Rahimthang and not any other village shall not be
selected for
establishing the block headquarters.

The conclusion, therefore, would be that the decision to establish
headquarter of the new
block at Rahimthang is a product of caprice based on ipse dixit of the officers
of the State and,
therefore, cannot stand the test of law.

Learned counsel for the private respondents cited a Single Bench judgment
rendered in
Bijita Saha v. State of Tripura, AIR

9. 2006 Guahati 61, for the preposition that the writ Court cannot direct change
of location of a
hospital to be set up by the State. We do not think that the same can be an
absolute preposition. If
on the basis of ipse dixit and mala fide on the part of the officers of the
State, a benefit by way of a
hospital is to be given to the people, but is given to a class of people,
ignoring the mass, the writ
Court will not backtrack from issuing appropriate writs. The other judgment
cited by the said
learned counsel was rendered in the case of Uttaranchal Training and Employment
Karamchari
Samgharsh Samiti v. State of Urraranchal, reported in AIR 2005 Uttaranchal 58,
for the
preposition that decision of location of a Government office rests in the
Government and the writ
Court has no jurisdiction to interfere therewith. In that case, the question was
shifting of the
Directorate of Employment and Training from Haldwani. Though such an office of
the Government
is established for the benefit of the people but the people have no direct
interaction therewith;

whereas headquarter of a block is established only for the purpose of
interacting with and by the
people and not for any other purpose.

In the circumstances, these appeals are allowed and the judgment under order and
appeal is set
aside. The writ petitions are allowed but, at the same time, no further
steps be taken in the
10contempt petition and the same be deemed to have been closed. The Government
is directed to
ascertain, within a period of six months from today, in such manner and mode as
it may deem fit
and proper, which location of the headquarter for the said new block would best
suit the public
purpose for which the said block has been carved out and thereupon to install,
within a period of
further six months therefrom, the headquarter of the said block at such
location. It goes without
saying, that within a period of six months from today, the Government of its
own, would issue
appropriate notification, if necessary, altering the headquarter of the said
block upon consideration
of what has been directed above. It is made clear that until such time such new
notification is
issued, it shall be perfectly valid and justified for the Government to operate
the headquarters for
the said newly created block at and from where the same is operating at present.

                                (M. Yaqoob Mir)              (Barin Ghosh)
                                                Judge                           Chief
Justice
                        
Srinagar
16.03.2009 
A. H. Khan, JR 

In The High Court Of Jammu & Kashmir … vs Union Of India And Ors on 4 March, 2009

Jammu High Court
In The High Court Of Jammu & Kashmir … vs Union Of India And Ors on 4 March, 2009
       

  

  

 

 
 
 IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU            
SWP No. 625 of 07  
Col. Rajan Bakshi
Petitioner
Union of India and ors
Respondent  
!M/s SS Lehar, Sr.Adv. with Akshay Anand and Meharbaan Singh   
^Mr V.K. Magoo, ASGI,  with Respondent No.4 in person  

Hon'ble Mr Justice Nirmal Singh, Judge
DATE : 04/03/09 
:J U D G M E N T :

Petitioner is seeking writ in the nature certiorari quashing
order dt. 16th of Jan’06, passed by respondent No.4, whereby the
statutory complaint dt. 3rd of March’04, filed by the petitioner has
been accepted partially and further expunging the entire assessment
recorded by the respondent No.3 in the ACR of the petitioner w.e.f.
March’98 to June’98. Direction is also sought for quashing order dt.
22nd of Feb’07, passed by the respondent No.4, whereby the statutory
complaint of the petitioner dt. 8th of May’06, has been dismissed and
expunging the low grading awarded to the petitioner in the ACR
pertaining to the period Sept’01 to 30th of June’02.
Writ is also sought in the nature of mandamus commanding
upon the respondents to consider the case of the petitioner for
appointment/promotion to the rank of Brigadier w.e.f. the date his
juniors were so promoted.

The case set up by the petitioner is that in the month of Oct’95,
he was posted as SPO in Central Ordinance Depot (COD) which
posting was given to him solely on the basis of merit and outstanding
2
performance.It is stated that during the above posting, the petitioner
earned 5 CRs out of which three were outstanding for which nine
points were given and two were assessed above average for which
he was awarded 8 points. It is stated that the petitioner was getting 9
points consistently i.e. outstanding CRs from June’96 to Nov’96,
Dec’96 to May’97 and June’97 to Feb’98.

The grievance of the petitioner is that for the period w.e.f.
March’98 to June’98 i.e. only for three months, his CRs which were
initiated by the concerned Initiating Officer were graded low by
respondent No.3,who was the Reviewing Officer and this was done
with malafide intention. To substantiate the assertion regarding
malafide on the part of said respondent, it is stated that the
Reviewing Officer-respondent No.3 after taking over the duties of
ADG OS(TS) asked the petitioner as to how the distribution of Rate
Contract Batteries is to be made to various suppliers. It is stated that
as per the prevailing practice, the order was to be placed before two
firms i.e. M/s Geep India, New Delhi and M/s Novino which is a
Japanese Collaboration firm, but the said respondent told the
petitioner to place more orders to the M/s Geep India, which was
declined by the petitioner. It is stated that the petitioner thereafter
brought the matter to the notice of Commandant, who directed the
petitioner to follow the past norms unless there is some direction
otherwise by the Army Headquarters. It is stated that the orders were
placed before the two firms as per the practice as a result of which
respondent No.3 was annoyed and it was only on this basis, the said
respondent who was the Reviewing Officer, with a malafide intention
degraded the CRs of the petitioner for the aforementioned three
months which resulted in non consideration of the petitioner’s case
for further promotion.

The petitioner further submitted that as he was not
communicated about the low gradation of his CRs for the
aforementioned period and this fact came to his notice only in
March’04, he without any delay, filed the statutory complaint in
March’04 itself, which was partially allowed and the authority
3
concerned expunged the assessment made by the RO on twelve
points but no relief regarding further promotion was given to the
petitioner as the assessment made by the RO was not expunged in
toto.

The further case as projected by the petitioner is that in April’01,
the petitioner was transferred and posted as Dir. (OS) (Col), HQ
Southern Command, where respondent No.3, became his Initiating
Officer. It is stated that in the month of April/May’02, when the
marriage of daughter of respondent No.3 was fixed, number of
functions were arranged in the house of said respondent with the
help of Resources available in Rajinder Singh Institute, Pune. It is
stated that it was during this period again that the official relations of
the petitioner and the respondent No.3 who was now his Initiating
Officer became extravagant and this resulted in downgrading of the
CRs of the petitioner for the period Sept’01 to June’02, by the
Reviewing Officer namely Lt. Gen.MA Gurbaxani. It is stated that this
was done due to the adverse feed back by the respondent No.3 (IO)
to the Reviewing Officer of the petitioner. It is stated that the
petitioner thereafter filed another Statutory complaint on 8th of May’06
before the competent authority, which was rejected vide order dt. 22nd
of Feb’07. It is stated that while deciding the second statutory
complaint of the petitioner, the respondents did not consider the
service record of the petitioner and his previous CRs. It is stated that
the downgraded CRs of the petitioner were never communicated to
him and it was only when No.2 Selection Board held in Jan’06 , did
not empanel the petitioner for promotion to the rank of Brigadier, that
he came to know about his adverse CRs for the period Sept’01 to
30th of June’02. It is the above action of respondents regarding
downgrading of CRs of the petitioner for the period March’98 to
June’98, Sept’01 to June’02, and the resultant rejection of the
statutory complaints filed in this regard and non consideration of his
case for promotion to the next higher rank, which is the subject
matter of challenge in the present petition.

4

Counter has been filed by respondent-Union of India, stating
therein that the assessment of the officers in the CRs is regulated by
Special Army Order (SAO) of 1989 dt. 3rd of May’89, which stands
replaced by Army Order 45 of 2001, and other relevant policies
issued from time to time. The entire assessment of an officer in any
CR consists of the assessment made by three different reporting
officers i.e. IO, RO and SRO and these assessments are made
independent of each other. While considering an officer for
promotion to the next rank above the rank of Colonel, the Selection
Board takes into consideration number of facts and the
selection/rejection of an officer for further promotion depends upon
his overall service profile and the comparative merit within his batchmates.
It is stated that in the present case, the petitioner whose case
was considered by the Selection Boards, was not found suitable for
further promotion after taking into consideration his overall service
profile. It is stated that on considering the petitioner’s earlier statutory
complaint, the competent authority partially accepted the same and
expunged those remarks of the RO which were inconsistent with the
service profile of the petitioner. It is stated that the second complaint
filed by the petitioner dt. 8th of May’06 was also considered but the
same having been found without any basis was rightly rejected vide
order impugned dt. 22nd Feb’07. It is thus stated that the petitioner
cannot have any grievance.

Learned counsel for the petitioner submits that it was the
malafide intention on the part of respondent No.3 which ultimately led
to the downgrading of CRs of the petitioner and his resultant non
consideration for promotion to the next higher rank. In order to justify
the stand taken in this regard, learned counsel for the petitioner drew
my attention to the circumstances which led to such a situation. It was
stated that non fulfilment of the desire of the respondent No.3
regarding placing the order for supply of batteries to M/s Geep India
Ltd, was one of the reason which led to downgrading of the CRs of
the petitioner for the earlier period i.e. March’98 to June’98, by the
aforementioned respondent who was the Reviewing Officer of the
5
petitioner at the relevant time. It was further stated that it was again
due to uncongenial atmosphere during the initiation of the CRs for the
period Sept’01 to June’02, when the respondent NO.3 was the
Initiating Officer that the CRs of the petitioner for the aforesaid period
were downgraded by the Reviewing Officer on the feedback of
respondent No.3. It was thus stated that in both the cases,
respondent No.3 was instrumental in downgrading the CRs of the
petitioner which resulted in spoiling his career.
Learned counsel for the petitioner further submitted that when
the respondent authorities considered the earlier complaint filed by
the petitioner against his down-gradation for the period March’98 to
June’98, and expunged 12 downgraded qualities as assessed by the
respondent No.3 as Reviewing Officer, then there was no reason not
to expunge the remaining assessment made by the said officer. It
was further stated that even while rejecting the second complaint
filed for expunging the adverse remarks made during the period
Sept’01 to June’02, no reasons have been given by the authority
concerned. It is submitted that in terms of amendment made in para
33 of Special Army Order, 1989, referred to above, (here-in-after
referred to as Order of 1989), all Confidential Reports which are
endorsed by the IO and the RO are to be forwarded to the SRO and
in terms of para 101, it is incumbent upon the Senior Reporting
Officer to endorse specific remarks on the assessment made by the
junior reporting officer by indicating reasons. In terms of para 102 of
the said Order, it is obligatory on the part of Senior Reporting Officer
to see that the Confidential Report has been made keeping in view
the provisions of the Order of 1989. It is stated that in the present
case, the reports of the petitioner were not forwarded to the SRO in
terms of para 33 of Order of 1989 and therefore, in absence of any
endorsement to be made by the SRO as per the provisions of paras
101 and 102, the said Confidential Reports which have been
downgraded cannot be made the basis of rejecting the claim of the
petitioner for promotion to the next higher rank. It is further submitted
that the downgraded CRs of the petitioner were never communicated
to him and he was not warned verbally or in writing by his superior
6
officer regarding any shortcoming. It is stated that the Reporting
officers of the petitioner have otherwise not done the spot visit in
order to assess the performance of the petitioner. It is stated when
the Confidential report of the petitioner is not based on the material
available on record, then this should not be taken into consideration
by the authorities concerned and direction may be issued to reassess
the same. Reliance in this regard is being placed on a
judgment passed by this Court in the Case of Capt. Rajiv Ranjan v.
UOI and ors, SWP No. 1525/94 decided on Ist of Jan’2000.
The further plea put forth by the learned counsel for the
petitioner is that when no reasons are mentioned for downgrading the
CR of an officer or nor the change is communicated to the said
officer/employee, such entries should not be allowed to continue on
record. Reliance in this regard is being placed on a judgment of the
Apex Court reported as JT 1996 (1) SC 641, UP Jal Nigam and
others v. Prabhat Chandra Jain and ors.

Learned counsel for the respondent-Union of India, however,
countered the above pleas of the counsel for the petitioner by
projecting that in terms of para 33 referred to above, when there is a
difference of 2 or more marks between the assessment made by the
IO and RO, only then the report is to be forwarded to the SRO for his
endorsement. It is stated that in case, the difference is less than 2
between the assessment made by the IO and RO, then, the SRO
need not to make any endorsement or to record any reasons. In the
case of the petitioner also, as the difference was less than 2,
therefore, the CR of the petitioner was not forwarded to SRO for his
endorsement. It is stated that the provisions of the Order of 1989
have thus been fully complied with. So far as plea of the petitioner
that no spot visit was done, placing reliance on a judgment passed by
the High Court of Delhi in the case of CWP No.6925/01, Col RK
Thakar v. UOI, decided on 29th of Aug’08, it is stated that no spot
verification is necessary by any of the Reporting Officer. Placing
reliance on a judgment of the Apex Court reported as (2001)10 SCC
424, Amrik Singh v. UOI and two other judgments of Delhi High Court
7
rendered in the case of D.S. Pandey v. UOI, CWP No.6575/02,
decided on 31st of May’05 and Col Amarjeet v. UOI, CWP
No.5632/08, decided on 5th of Aug’08, it is stated that this court in writ
jurisdiction cannot sit as an appellate court over the decision of the
Selection Board.

Before adverting to the pleas raised by the counsel for the
parties, it would be apt to notice paras 33 (amended), 101 and 102 of
Order of 1989, on which reliance has been placed by both the sides.
The said provisions read as under:-

“33.All CRs will be endorsed by the IO and the RO and
forwarded to the SRO as specified in the channel of Reporting. The
SRO will be required to endorse the CR under the following
conditions:-

(a) When there is difference of 2 or more marks between the
assessment of IO and RO in the Box Grading.

(b) When between IO and RO only one person has endorsed.

(c) Outstanding, low and Below Average assessment by IO and/or
RO.”

“101: It will be incumbent upon the senior reporting officers (i.e.
RO/SRO/NSRO and HTO/Head of Arm or Service) to endorse
specific remarks on the assessment by the junior reporting officer for
the following in pen picture:-

(a) Whether the assessment by junior reporting officer is “Liberal”,
“Justified” or “Strict”.

(b) Recommendations for expunction of assessment which is not
considered to be objective. These recommendations will need
to be supported by reasons.

“102: In addition, it will also be obligatory for the senior reporting
officers to ensure that the CR has been rendered in accordance with
the provisions contained in the SAO and that the conditions for
consistency in reporting have been complied with.”

8

A perusal of para 33 of the Order of 1989, as amended, shows
that all CRs are to be endorsed by the IO and RO and these are to be
forwarded to the SRO as specified in the Channel of Reporting. The
SRO is to endorse the CR if there is difference of two or more marks
between the assessment made by the IO and RO in Box Grading or
when out of two reporting officers i.e IO and RO ,only one has
endorsed the CR or when the CR has been endorsed as outstanding,
low and below average by the IO and RO. But in each case, the CR
has to be forwarded to the SRO. Further, a perusal of paras 101 and
102, noticed above, shows that it is incumbent upon the Senior
Reporting officer to endorse specific remarks on the assessment
made by the Junior reporting officer as to whether the same is
‘liberal’, justified’ or strict and it is further obligatory on the part of
Senior Reporting Officer to ensure that the CR has been endorsed in
accordance with the provisions contained in the Order of 1989.
So far as the CRs of the petitioner for the period March’98 to
June’98, are concerned, the adverse entries made in the said CRs
were not communicated to the petitioner. As noticed above, he came
to know about degradation of his CRs in the month of March’04 and
thereafter he filed a statutory complaint before the authority
concerned. The said authority after examining the record, considered
and decided the statutory complaint of the petitioner by passing order
dt. 16th of Jan’06. The operative part of the said order reads as
under:-

“666..The statutory complaint of the officer has been
examined in the light of his career profile, relevant records and
analysis/recommendations of the Army HQs. It is observed that all
the CRs in the reckonable profile are fair, objective, well
corroborated and performance based except the following
assessment of RO in CR 03/98-06/98:-

a/ Para 11) -Decisiveness.

b/ Para 11(d) -Dependability.

c/ Para 11(e) -Drive and determination.

9

d/ Para 11(k) -Maturity.

e/ Para 11(l) -Stamina
f/ Para 11(m) -Tenacity
g/ Para 12(a) -Knowledge of Own Arm/Service and its
practical application on ground
h/ Para 12(b) -Knowledge of other Arms and Services.
i/ Para 12) -Effectiveness in training of his Command
j/ Para 12(e) -Effectiveness in carrying out administration
of his Command
k/ Para 12(f) -Equipment management and ability to utilise
resources economically.

l/ Box grading at Para 19.

7. The Central Government, therefore, orders expunction
of above mentioned assessment of RO on grounds of
inconsistency.

8. Subject to the partial relief ordered as above to IC-
36939F Col Rajan Bakshi, AOC, the Central
Government, rejects his Statutory Complaint dated 03rd
March 2004 submitted against CR 03/98-06/98.”

The petitioner in his statutory complaint had alleged malafide
against the RO, which is apparent from the order itself referred to
above, passed by the competent authority, stating that the RO was
interested in favouring a particular supplier of ANPRC battery. It was
stated that due to his forthright approach, the RO could not succeed
in granting benefit to a particular firm. The petitioner had also
narrated the incident regarding distribution of rate contract batteries
to various suppliers which is also borne out from order dt. 16th of
Jan’06, passed by the competent authority. The said order of the
competent authority which makes mention of the stand taken by the
petitioner in his statutory complaint reads as under:-
“6..3. The officer alleges that the RO was interested in
favouring a particular supplier of ANPRC battery. However, due to his
forthright approach, the RO could not succeed. In the Statutory
10
Complaint, he has given detail regarding the distribution of rate
contract battery to various suppliers.

4. As per the officer, he resisted the move to work out the cost
of battery on transportation model. As a result, the RO could
not oblige the firm he wanted to. He alleges that the RO was
also interfering in orders of other items as well. The RO
became more demanding as this was the time when the
impugned CR was initiated. The officer also states that the
RO continued to ask favours after his departure from COD.
The RO did not visit the COD during his tenure and did not
listen to briefing as well which SPO gives to all VIPs. He has
interacted with him only on telephone and never met him.
The RO’s knowledge about the performance of the officer
was inadequate and he was never given any performance
counselling6666″

The competent authority, as noticed above, after considering
the statutory complaint of the petitioner expunged twelve adverse
remarks made by the respondent No.3- RO concerned of the
petitioner, in his CRs for the period March’98 to June’98. The said
adverse entries were expunged on the basis of inconsistency
whereas the ground taken by the petitioner regarding the malafide on
the part of RO was not considered at all, which malafide is writ large
on the face of it. Even on filing of the said statutory complaint by the
petitioner, comments were invited from DDG (Proc), namely IDS
Boparai. The said officer submitted his parawise comments. In his
comments to sub para (ii) to (v) of the complaint filed by the
petitioner, it has been observed as under:-

“(b) Sub Para (ii) to (v): On going through the correspondence
att, I recall that the petitioner had come to me and told me that Maj
Gen GS Kohli, VSM (Retd) desired that Ms Geep India, New Delhi be
allotted heavy portion of the sanctioned ANPRC Btys. Allotment of hy
portion of the btys to one firm had serious repercussions for the Army
when there were only two sources in the country and the btys did not
have any civil end use. I told the petitioner to follow the correct norms
11
as in past, and distribute btys in proportion as per firms capacity so
as to ensure both sources are kept alive and competitiveness
ensured thereby. I also told the petitioner categorically that no
deviation in the allotments would be made unless written directions
contrary to our recommendations are received from the Army HQ.
Subsequently, we received letters from DDG OS (L&E) to work out
transportation model cost matrix for distributi9on of btys to the firms.
This would have given clear advantage to Ms Geep- India located in
Central India (Allahabad) over the o0ther firm Ms Novino located at
Vadodra and would have proved extremely damaging for the Army
subsequently, if the other source had dried and Army had to deal with
only one firm. Accordingly, Army HQ was apprised of the
consequences of allotting btys on transportation model Cost Matrix
vide our letter No. 14021/Y3/FS/Prov/BC dt. 07 Aug 98 (Appx G) and
asked for clear cut policy. I had given clear instrs to the petitioner to
follow the correct procedure and transparency in all transaction
irrespective of the auth approaching him. I am sure that the Offr
(Petitioner) had followed my instrs scrupulously and apprised me time
to time if any higher official approached him.”

In para 5 of the comments furnished by the aforesaid officer, it
has been observed as under:-

“5. Notwithstanding the above, the Petitioner is an extremely
hard working Offr who has carried out his duties with utmost
dedication till last day of his stay in COD Agra. The fact that COD
Agra could meet all the requirements of the Fd Army in OP
RAKSHAK & PARAKRAM is testimony of the sound provisioning and
procurement made during his tenure as SPO.”

Ultimately, after making the above noticed comments, the
officer concerned made following recommendation:-
” Recommendation: I recommend that the complaint be
examined on its merit and if the assessment of the RO is out of tune
12
with the performance of the petitioner in that appointment/overall
performance, the same may be expunged.”

A perusal of the above comments and the ultimate
recommendation made by the DDG(Proc), shows that the petitioner
had rightly alleged the malafide against his RO-respondent No.3 in
his statutory complaint but the authority concerned while disposing of
the said complaint filed by the petitioner in this regard did not rightly
consider the above aspect of the matter and partially accepted the
statutory complaint by expunging only twelve adverse entries made
by the RO only on the basis of inconsistency, which in my opinion, is
not in accordance with the law. When the malafide on the part of the
RO of the petitioner stood proved, which is apparent from the perusal
of the comments furnished by the DDG(Proc) noticed above, then, all
the adverse entries made in the CRs of the petitioner by the then RO
i.e. respondent No.3 for the period March’98 to June’98, should have
been expunged and should not have been taken into consideration by
the authority concerned in rejecting the claim of the petitioner for
further promotion, if any. All these adverse entries made in the CR
of the petitioner for the period referred to above, by the RO
concerned with malafide intention, thus, would be deemed to have
been expunged. The order dt. 16th of Jan’06, passed by respondent
No.4 whereby the first statutory complaint of the petitioner has been
partially accepted without adverting to the plea of the petitioner
regarding malafide is also not sustainable.

The other adverse entries which are also being sought to be
quashed pertain to the period Sept’01 to June’02. Again the malafide
on the part of respondent No.3 who was IO of the petitioner for the
said period is projected to be the cause of downgradation of the CR
for the relevant period.

As noticed above, the stand of the petitioner in this regard is
that respondent No.3 who was not having cordial relations with the
petitioner was instrumental in downgrading the CRs of the petitioner
by giving a wrong feed back to the RO of the petitioner, who himself
13
was an honest officer. The other plea for not taking into consideration
the said adverse entries is that as per relevant Order/instructions, the
CRs of the petitioner for the aforementioned period were not
forwarded to the SRO for his endorsement. It is further stated that
even the above adverse entries were not communicated to the
petitioner.

The record pertaining to the assessment made by the IO and
RO concerned during the above period has been produced by the
respondent-Union of India. A perusal of the same shows that the
respondent No.3 who was the IO of the petitioner during the said
period of dispute has not downgraded the CRs of the petitioner but it
is the RO who has downgraded his CRs for the relevant period. The
petitioner, as noticed above, has taken a specific stand in the writ
petition that officer concerned who remained the RO of the petitioner
during the above period i.e. Sept’01 to June’02, was an honest officer
and it is only the respondent No.3, the then IO who was instrumental
in getting his CRs downgraded from the RO concerned, which plea of
the petitioner without any evidence on record is difficult to be
accepted. The officer concerned, in his individual capacity as a
Reviewing Officer, has every right to make the assessment taking
into consideration the service profile of an officer working under him ,
which assessment has to be believed as it is unless it is shown that it
emanated from bias and vindictiveness, which is not the case herein.
The petitioner as indicated above, has not alleged any malafide on
the part of RO, therefore, in the absence of any such stand taken by
the petitioner against the RO concerned, it cannot be said that RO
was influenced by the IO (respondent No.3) to make adverse entries
in the CRs of the petitioner for the above period.
One aspect of the matter which, however, requires
consideration is regarding forwarding of the CRs of the officers after
these are endorsed by IO and RO concerned to the SRO.
The specific stand taken by the respondent-Union of India is
that when there is a difference of two or more points between the
14
assessment of IO and RO, only then the CRs are to be forwarded to
the SRO for his endorsement. I am of the opinion that the said stand
of the respondents is not in line with the relevant provisions of Order
of 1989. In terms of para 33 of the said Order as amended noticed
above, even though there is a difference of less than two marks
between the assessment made by the IO and RO in the box grading,
it is obligatory on the part of authorities concerned to forward the CRs
of the officers to the SRO, which in the present case has not been
done. Even otherwise, when an assessment is made by the IO and
the RO differs with the same, then, he has to record the reasons for
doing so, so that when the CR is forwarded to the SRO, he may
make his own assessment taking into consideration the reasoning
given by the RO in downgrading the CRs. But in the present case, a
perusal of the CRs of the petitioner for the period Sept’01 to June’02
shows that no reasoning has been given by the RO while
downgrading the CRs of the petitioner. Even the CRs recorded for
the above period are not in accordance with the Special Instructions
as framed in the Order of 1989, for the Reporting Officers.
In the Order of 1989, there is a clause “Guidance for
improvement” under the Special Instructions for the Reporting
Officers. Paras 150 and 151 under the heading “Guidance for
Improvement” are relevant and are being reproduced below:-
“150. The information given in the Confidential Reports is not
for the exclusive use of the MS Branch for Personal management
functions but is also intended to promote the professional
development of the officer reported upon. It is for the development
aspect which many times is overlooked by the reporting officers. They
should counsel and guide the officer as well as apprise him of his
shortcoming when noticed throughout the reporting period. This
obligation of duty should not be deferred to the time of initiation of the
report so that adverse remarks, if any, do not come as a surprise to
the officer reported upon.”

15

“151. Some reporting officers carry an erroneous impression
that only the IO and the First TO are required to carry out
performance counselling before endorsing any adverse remarks. It
may be stated that the professional development of the subordinates
is a function of all echelons of command and is not the exclusive
responsibility of the IO and the First TO. Hence it is the duty of all the
reporting officers in the chain of initiation of reports to counsel and
guide the ratees. The counselling may be done in person or in
writing.”

In the case in hand, as indicated above, the above instructions
have not been followed by the officer who was the RO of the
petitioner during the above period. There is nothing on record to
show that in order to promote the professional development or any
shortcomings on the part of the petitioner which resulted in
downgradation of his CRs, he was ever counselled or guided in
person or in writing by the RO or any other superior authority.
Therefore, without any hesitation, it can be concluded that the CRs of
the petitioner for the above period in dispute i.e. Sept’01 to June’02,
have not been assessed by the RO keeping in view the standing
Instructions on the subject issued vide Order of 1989, referred to
above. The said CRs of the petitioner, thus, having not been
assessed in terms of the relevant provisions aforementioned cannot
be taken on record. In arriving at such a conclusion, I am conscious
of the fact that judicial review in such like administrative decisions is
not permissible but there can be no denial of the fact also that
wherever a finding to the extent is recorded that authority concerned
in taking an administrative decision has failed to comply with the
relevant provisions/Rules governing the field or that the process in
reaching such a decision has not been observed correctly, then this
court in writ jurisdiction under Article 226 of the Constitution of India
can interfere in such like matters. In expressing such an opinion, I am
guided by the observations made by the Apex Court in the case
reported as Union of India v. Lt. Gen. Rajendra Singh Kadyan, (2000)
6 SCC 698. The relevant observations made in this regard in para 29
of the judgment are being reproduced below:-

16

“66666It is a well known principle of administrative law that
when relevant considerations have been taken note of and irrelevant
aspects have been eschewed from consideration and that no relevant
aspect has been ignored and the administrative decisions have nexus
with the facts on record, the same cannot be attacked on merits.
Judicial review is permissible only to the extent of finding whether the
process in reaching decision has been observed correctly and not the
decision as such666..”

In the case in hand, the respondent Union of India has not
correctly observed the process of initiation of CRs of the petitioner in
terms of the provisions of para 33 of Order of 1989, noticed above
under which provision, as indicated above, it is obligatory on the part
of authorities concerned to forward all the CRs endorsed by the IO
and RO to the SRO as specified in the Channel of Reporting. Even,
the authority concerned in its capacity as RO, before making the
assessment, has not taken into consideration the provisions of Order
of 1989 as contained in paras 150 and 151 noticed above. In terms of
para 150, quoted above, it is obligatory on the part of any Reporting
officer to counsel and guide the officer concerned and apprise him of
his shortcomings and this has to be done prior to the initiation of the
reports. The petitioner during the aforementioned period in dispute
was not ever guided by the RO and not even apprised of his
shortcomings, if any. Even, the RO while downgrading the CRs of the
petitioner has not given any reason. Therefore, the method adopted
by the RO while making the assessment for the period in dispute and
the resultant action of respondent Union of India in not forwarding the
CRs of the petitioner for the said period to the SRO is held to be not
in accordance with the relevant provisions of Order of 1989, noticed
above, and has to be struck down. The judgments cited by the
learned ASGI, appearing on behalf of respondent Union of India
regarding non visit of the Reporting Officer and non interference by
this court over the decision of Selection Board would, therefore, be of
no avail to them when the initial action of respondent authorities in
making the assessment by the RO and non forwarding of the same to
17
the SRO is held to be in violation of the standing Instructions as laid
down in Order of 1989.

For the reasons mentioned above, this petition is disposed of
with the following directions:-

1/ That the downgradation of the CRs of the petitioner for the
period March’98 to June’98, having been done with extraneous
considerations by respondent No.3 in his capacity as RO, cannot be
allowed to continue on record and is struck down. The resultant order
dt. 16th of Jan’06, passed by respondent No.4 while deciding the first
statutory complaint of the petitioner, whereby the said complaint was
accepted partially can also not be sustained and is accordingly
quashed;

2/ That the assessment made by the RO in the CRs of the
petitioner for the period Sept’01 to June’02, is held to be in violation
of the provisions of Paras 150 and 151 of the Standing Instructions of
Order of 1989, and thus cannot be taken into consideration by the
authority concerned in rejecting the claim of the petitioner for further
promotion;

3/ That the CRs of the petitioner for the period Sept’01 to June’02,
can also not be allowed to be taken into consideration as the same
have not been assessed in terms of provision of Para 33 of Order of
1989, and therefore, order dt. 22nd of Feb’07, passed by respondent
No.4 in rejecting the second statutory complaint is also held to be bad
and is accordingly quashed;

4/ That in case any Selection Board was held for considering the
cases of the officers for promotion to the rank of Brigadier during the
period March’98 to June’02, and any of the junior of the petitioner
was promoted, then, the case of the petitioner shall also be
considered for such promotion keeping in view his CRs for the period
prior to March’98;

18

5/ That so far as CRs of the petitioner for the period Sept’01 to
June’02, are concerned, these would be forwarded to SRO for reassessment
in accordance with the relevant Rules governing the field
and if on re-assessment by the SRO, in case, the petitioner falls
within the consideration zone for promotion to the next higher rank,
his case shall be considered accordingly;

6/ The authority concerned shall pass appropriate orders within a
period of three months from the date, a copy of this order is made
available to it by the petitioner. Till this is done, the interim order dt.
29th of July’08, so far as it relates to providing the official
accommodation and transportation to the petitioner is concerned,
shall continue to operate.

Disposed of accordingly.

(Nirmal Singh)
Judge
Jammu
Dt.4.3.09
SS/

H. S. Raina vs Income Tax Officer on 3 March, 2009

Jammu High Court
H. S. Raina vs Income Tax Officer on 3 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
ITA No. 1 OF 2008 
H. S. Raina.
Petitioners
Income Tax Officer.
Respondent  
!Mr. M. M. Gupta, Advocate 
^Mr. D. S. Thakur, Advocate

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice irmal Singh, Judge
Date: 03.03.2009.
:J U D G M E N T :

Per Barin Ghosh, CJ:

This is an appeal by the Assessee under Section 260 A of the
Income Tax Act, 1961 from the order of the Income Tax Appellate
Tribunal, Amritsar Bench, Amritsar.

In the year 1991 assessee constructed a house property. The
Assessee, who was a partner of six partnership Firms carrying on
finance business, had not filed his income tax returns for the earlier
four to five years contending that his income was not taxable. A
notice under Section 148 dated 18th February, 2000 was served on the
2
assessee on 7th March, 2000, whereupon on 11th February, 2002
assessee filed a return of income declaring income of Rs.21,175/-.
Assesseeb�(tm)s case was referred to the Valuation Cell, whereupon the
Valuation Cell reported that the house was constructed in the year
1991 at a cost of Rs. 17.00 lacs.

Assessee did not dispute the valuation. He contended that the
cost of construction was financed by the compensation amount of Rs.
17,85,395/- received by his mother in a land acquisition case.

A sum of Rs. 17, 85,395.70 received by a cheque dated 8th
April, 1991 issued by the Collector was deposited in the Savings Bank
Account No, 1968 of the mother of the assessee maintained with the
J&K Bank, Nanak Nagar, Jammu. Assessee contended that moneys
withdrawn from the said account were utilized for construction of the
house. Though the assessee did not make any effort to produce any
material to suggest utilization of the amounts so withdrawn for
construction of the house, but some of such withdrawals were
accepted to have been utilized for the construction purpose. It was
accepted that the assessee has been able to establish source of
Rs. 11,25,000/- for incurring expenses for construction of the said
house but failed to account for the source of incurring expenditure
amounting to Rs. 5, 75,000/-.

3

There is no dispute that a certain amount of money was paid to
the Principal of a School from the said account. The assessee did not
contend that the money so paid was used for construction purpose. In
addition to that, certain amounts of money were paid to four Finance
Companies and certain amounts of money were paid to certain
individuals from the said account. The assessee contended that the
payments made to the Finance Companies were for repayment of
loans taken from them for construction purpose. Assessee contended
that payments to those individuals were on account of purchase of
materials. Assessee furnished the names and particulars of those
Finance Companies as well as of those individuals. Notices sent to
them were returned un-served. Partners of those Firms appeared
before the Assessing Tax Officer at the instance of the assessee, but
individuals did not. Partners of those Firms stated that loans were
given to the assessee by the Firms represented by them and those were
paid by the assessee through the subject cheques. They stated that the
Firms were income tax assesses at the relevant time. They also stated
that the loans did not bear any interest. They also stated that the Firms
represented by them have closed their business in view of the
directions of the Reserve Bank of India.

4

The amounts paid to the Firms and the amounts paid to those
individuals from the said account were not accepted as amounts spent
for construction of the house. That appears to be the principal dispute
raised by the assessee before the Commissioner of Income Tax
Appeal and having lost before him went before the Tribunal and again
having lost before the Tribunal has come up before this Court.

The principal contention of the appellant is that whatever was
within his command he did, i.e., furnishing of particulars of the
persons, who granted loans to the assessee and supplied materials; and
there is no just reason not to accept repayment of such loans and
payments made for purchase of materials.

There is no dispute that certain payments were made to certain
Firms carrying on finance business. However, neither the assessee,
nor the partners of the subject firms could bring on record any thing to
suggest that such payments were on account of repayment of loans
received by the assessee at an earlier point of time. There was no
evidence at all, except statements made by four individuals and
assertions of the assessee, that loans were received by the assessee
from those Firms at any point of time earlier than the dates of
payment of the subject amounts from the said account. Similarly,
there was no material, except assertions by the assessee, that building
materials were procured by the assessee from those individuals, who
5
were paid certain amounts from the said account. A payment can be
accepted as repayment or on account of purchase when it is
established that an earlier payment was received or a purchase was
made. Neither an earlier payment, nor any purchase said to have been
made was established. In the circumstances, non-acceptance of
payments made to the said Firms as repayment of loans and non-
acceptance of payments made to those individuals on account of
purchase of materials cannot be said to be an act so capricious and
unjust that the same can be called in question as a substantial question
of law. Certain payments made to certain other individuals were
accepted as payments made for construction purpose, but without
there being anything to suggest that the payments so made were
utilized for construction. In the circumstances non-acceptance of
payments made to the concerned individuals as payments made on
account of purchase of materials cannot be said to be question of law
inasmuch as the comparable payments cannot with certainty be taken
as payments made for the construction.

The learned counsel for the appellant cited the judgment of the
Hon’ble Supreme Court rendered in the case of Lalchand Bhagat
Ambica Ram v. Commissioner of Income-Tax, Bihar and Orissa,

reported in 37 ITR 288, and contended that it is suspicion or
conjecture or surmise on the part of the Tribunal, which has taken
6
place of evidence. He submitted that in addition to that the department
has applied the rule of thumb. In other words, he contended that
contentions of the appellant that he repaid loans supported by
evidence of grant of loan by the partners of the Firms from whom the
loans had been taken are material evidence, which could not be
ignored either on the basis of rule of thumb or on suspicion or
conjecture or surmise.

Section 69C of the Act provides that where in any financial
year an assessee has incurred any expenditure and he offers no
explanation about the source of such expenditure or part thereof, or
the explanation, if any, offered by him is not, in the opinion of the
Assessing Officer, satisfactory, the amount covered by such
expenditure or part thereof, as the case may be, may be deemed to be
the income of the assessee for such financial year. Therefore, in terms
of Section 69C of the Act, appellant was required to explain
satisfactorily the source of the expenditure of Rs. 17.00 lacs, which he
had incurred for construction of the house in question. The
explanation as was put forward by the appellant was repayment of
loans, which were used for the construction, and payments on account
of purchase of materials. Receipt of loans, utilization thereof for
construction and purchase of materials were, therefore, the essential
ingredients to satisfy that the payments in question were made for
7
repayment of loans and for discharging the debts incurred on account
of purchase of materials. Since there was nothing to suggest receipt of
loans and utilization thereof for construction, except assertions, and at
the same time there being nothing to suggest procurement of materials
from those individuals, who were paid the amounts in question, non-
acceptance of such assertions, to our mind, cannot be said to be based
on suspicion, conjecture or surmise or by applying the rule of thumb.

Learned counsel next contended by referring to the judgment of
the Hon’ble Supreme Court of India in the case of Commissioner of
Income Tax v. Orissa Corporation (P) Ltd.,
reported in 159 ITR 78,
that since the assessee could not produce the two individuals, from
whom materials were purchased, an adverse inference could not be
drawn against the assertions made by the assessee. In the instant case,
no adverse inference was drawn against the assessee. Apart from the
failure on the part of the assessee in producing those individuals, he
failed to bring on record anything to suggest purchase of materials
from those individuals.

Learned counsel for the assessee contended, as notice by the
Hon’ble Supreme Court of India in Commissioner of Income Tax v.

oorjahan, reported in 237 ITR 570, that the word b�shallb�(tm)
Smt. P. K.

was proposed to be inserted in Section 69C which was later on
changed by the word b�mayb�(tm) and, accordingly, no sooner the
8
explanation of the assessee is not satisfactory, the amounts cannot be
deemed to be the income of the assessee. It is true, as pointed out by
the Hon’ble Supreme Court in the case referred to above, a discretion
has been given to the department in the matter of deeming the un-
explained amount as income of the assessee, but such discretion is to
be used judiciously for protecting the interest of the assessee as well
as of the revenue. In that case, on facts, it was found that having
regard to the age of the assessee and the circumstances in which she
was placed., she cannot be credited to make income of her own and in
those circumstances, the Hon’ble Supreme Court upheld the view of
the Tribunal in refusing to permit addition of the value of the subject
investments to the income of the assessee. In the instant case, there is
no material on record which would suggest that the appellant could
not be credited with having made any income of his own having
regard to his age and the circumstances in which he was placed. In the
event, it is construed that all un-explained source of expenditure
should not be deemed to be the income of the assessee and the
discretion should be used always in favour of the assessee, the Section
itself would become otioso.

Learned counsel also contended that before adding the amounts
in question as income of the assessee, i.e., before using the discretion,
the appellant ought to have had been noticed. The Section
9
does not require any such notice. In any view of the matter, from the
day one the question was should or should not be such expenditure be
deemed to be the income of the assessee and notice thereof was
adequately given to the assessee. Learned counsel for the appellant
contended that at the time of imposing penalty, a notice is required to
be given and the same analogy should be applied while such addition
is being made. The requirement of hearing the assessee and giving
him reasonable opportunity of being heard before imposing penalty is
a requirement of Section 274 of the Act. No such procedure has been
prescribed for making additions under Section 69C of the Act. In any
event, by virtue of Section 69C of the Act, it is obligatory on the part
of the assessee to explain, to the satisfaction of the Assessing Officer,
the source of expenditure made by him, with a rider that if the
explanation is not satisfactory, the Assessing Officer may use his
discretion against the assessee, which connotes an obligation to
satisfy, apart from the explanation to be given by him, that there was
existence of such circumstances in which the assessee was placed that
he cannot be credited with having made such income of his own. In
the event, such obligation had been discharged but ignoring the same,
Assessing Officer had added the expenditure as deemed income and
thereby had used his discretion against the assessee, it would have
been open to the assessee to call in question user of such discretion,
10
but the assessee did not make any endeavor at any stage to assert that
the circumstances in which he was then placed, he could not be
credited for having made the subject income of his own.

The learned counsel for the appellant lastly submitted that
according to the valuation report the property was constructed in the
year 1991, which connotes calendar year 1991. He submitted that
calendar year 1991 had two financial years and as such the deemed
income should be bifurcated. There is nothing on record to suggest
when construction commenced. The drawings from the subject
account were made from April, 1991. The facts of the case, therefore,
did not make out a case for bifurcation.

In the circumstances, the appeal fails and the same is dismissed.

                     ( irmal Singh)                  (Barin Ghosh)
                               Judge                   Chief Justice
Jammu,  
 03.03.2009
Tilak, Secy.









H. S. Raina vs Income Tax Officer on 3 March, 2009

Jammu High Court
H. S. Raina vs Income Tax Officer on 3 March, 2009
       

  

  

 

 
 
 IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU            
ITA No. 01 OF 2008 
H. S. Raina
Petitioner
Income Tax Officer
Respondent  
!Mr. M. M. Gupta, Advocate 
^Mr. D. S. Thakur, Advocate

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Nirmal Singh, Judge
DATE : 03/03/2009 
:J U D G M E N T :

Per Barin Ghosh, CJ:

This is an appeal by the Assessee under Section 260 A of the
Income Tax Act, 1961 from the order of the Income Tax Appellate
Tribunal, Amritsar Bench, Amritsar.

In the year 1991 assessee constructed a house property. The
Assessee, who was a partner of six partnership Firms carrying on
finance business, had not filed his income tax returns for the earlier
four to five years contending that his income was not taxable. A
notice under Section 148 dated 18th February, 2000 was served on the
2
assessee on 7th March, 2000, whereupon on 11th February, 2002
assessee filed a return of income declaring income of Rs.21,175/-.
Assessee’s case was referred to the Valuation Cell, whereupon the
Valuation Cell reported that the house was constructed in the year
1991 at a cost of Rs. 17.00 lacs.

Assessee did not dispute the valuation. He contended that the
cost of construction was financed by the compensation amount of Rs.
17,85,395/- received by his mother in a land acquisition case.
A sum of Rs. 17, 85,395.70 received by a cheque dated 8th
April, 1991 issued by the Collector was deposited in the Savings Bank
Account No, 1968 of the mother of the assessee maintained with the
J&K Bank, Nanak Nagar, Jammu. Assessee contended that moneys
withdrawn from the said account were utilized for construction of the
house. Though the assessee did not make any effort to produce any
material to suggest utilization of the amounts so withdrawn for
construction of the house, but some of such withdrawals were
accepted to have been utilized for the construction purpose. It was
accepted that the assessee has been able to establish source of
Rs. 11,25,000/- for incurring expenses for construction of the said
house but failed to account for the source of incurring expenditure
amounting to Rs. 5, 75,000/-.

3

There is no dispute that a certain amount of money was paid to
the Principal of a School from the said account. The assessee did not
contend that the money so paid was used for construction purpose. In
addition to that, certain amounts of money were paid to four Finance
Companies and certain amounts of money were paid to certain
individuals from the said account. The assessee contended that the
payments made to the Finance Companies were for repayment of
loans taken from them for construction purpose. Assessee contended
that payments to those individuals were on account of purchase of
materials. Assessee furnished the names and particulars of those
Finance Companies as well as of those individuals. Notices sent to
them were returned un-served. Partners of those Firms appeared
before the Assessing Tax Officer at the instance of the assessee, but
individuals did not. Partners of those Firms stated that loans were
given to the assessee by the Firms represented by them and those were
paid by the assessee through the subject cheques. They stated that the
Firms were income tax assesses at the relevant time. They also stated
that the loans did not bear any interest. They also stated that the Firms
represented by them have closed their business in view of the
directions of the Reserve Bank of India.

4

The amounts paid to the Firms and the amounts paid to those
individuals from the said account were not accepted as amounts spent
for construction of the house. That appears to be the principal dispute
raised by the assessee before the Commissioner of Income Tax
Appeal and having lost before him went before the Tribunal and again
having lost before the Tribunal has come up before this Court.
The principal contention of the appellant is that whatever was
within his command he did, i.e., furnishing of particulars of the
persons, who granted loans to the assessee and supplied materials; and
there is no just reason not to accept repayment of such loans and
payments made for purchase of materials.

There is no dispute that certain payments were made to certain
Firms carrying on finance business. However, neither the assessee,
nor the partners of the subject firms could bring on record any thing to
suggest that such payments were on account of repayment of loans
received by the assessee at an earlier point of time. There was no
evidence at all, except statements made by four individuals and
assertions of the assessee, that loans were received by the assessee
from those Firms at any point of time earlier than the dates of
payment of the subject amounts from the said account. Similarly,
there was no material, except assertions by the assessee, that building
materials were procured by the assessee from those individuals, who
5
were paid certain amounts from the said account. A payment can be
accepted as repayment or on account of purchase when it is
established that an earlier payment was received or a purchase was
made. Neither an earlier payment, nor any purchase said to have been
made was established. In the circumstances, non-acceptance of
payments made to the said Firms as repayment of loans and nonacceptance
of payments made to those individuals on account of
purchase of materials cannot be said to be an act so capricious and
unjust that the same can be called in question as a substantial question
of law. Certain payments made to certain other individuals were
accepted as payments made for construction purpose, but without
there being anything to suggest that the payments so made were
utilized for construction. In the circumstances non-acceptance of
payments made to the concerned individuals as payments made on
account of purchase of materials cannot be said to be question of law
inasmuch as the comparable payments cannot with certainty be taken
as payments made for the construction.

The learned counsel for the appellant cited the judgment of the
Hon’ble Supreme Court rendered in the case of Lalchand Bhagat
Ambica Ram v. Commissioner of Income-Tax, Bihar and Orissa,

reported in 37 ITR 288, and contended that it is suspicion or
conjecture or surmise on the part of the Tribunal, which has taken
6
place of evidence. He submitted that in addition to that the department
has applied the rule of thumb. In other words, he contended that
contentions of the appellant that he repaid loans supported by
evidence of grant of loan by the partners of the Firms from whom the
loans had been taken are material evidence, which could not be
ignored either on the basis of rule of thumb or on suspicion or
conjecture or surmise.

Section 69C of the Act provides that where in any financial
year an assessee has incurred any expenditure and he offers no
explanation about the source of such expenditure or part thereof, or
the explanation, if any, offered by him is not, in the opinion of the
Assessing Officer, satisfactory, the amount covered by such
expenditure or part thereof, as the case may be, may be deemed to be
the income of the assessee for such financial year. Therefore, in terms
of Section 69C of the Act, appellant was required to explain
satisfactorily the source of the expenditure of Rs. 17.00 lacs, which he
had incurred for construction of the house in question. The
explanation as was put forward by the appellant was repayment of
loans, which were used for the construction, and payments on account
of purchase of materials. Receipt of loans, utilization thereof for
construction and purchase of materials were, therefore, the essential
ingredients to satisfy that the payments in question were made for
7
repayment of loans and for discharging the debts incurred on account
of purchase of materials. Since there was nothing to suggest receipt of
loans and utilization thereof for construction, except assertions, and at
the same time there being nothing to suggest procurement of materials
from those individuals, who were paid the amounts in question, nonacceptance
of such assertions, to our mind, cannot be said to be based
on suspicion, conjecture or surmise or by applying the rule of thumb.
Learned counsel next contended by referring to the judgment of
the Hon’ble Supreme Court of India in the case of Commissioner of
Income Tax v. Orissa Corporation (P) Ltd.,
reported in 159 ITR 78,
that since the assessee could not produce the two individuals, from
whom materials were purchased, an adverse inference could not be
drawn against the assertions made by the assessee. In the instant case,
no adverse inference was drawn against the assessee. Apart from the
failure on the part of the assessee in producing those individuals, he
failed to bring on record anything to suggest purchase of materials
from those individuals.

Learned counsel for the assessee contended, as notice by the
Hon’ble Supreme Court of India in Commissioner of Income Tax v.
Smt. P. K. %oorjahan, reported in 237 ITR 570, that the word ‘shall’
was proposed to be inserted in Section 69C which was later on
changed by the word ‘may’ and, accordingly, no sooner the
8
explanation of the assessee is not satisfactory, the amounts cannot be
deemed to be the income of the assessee. It is true, as pointed out by
the Hon’ble Supreme Court in the case referred to above, a discretion
has been given to the department in the matter of deeming the unexplained
amount as income of the assessee, but such discretion is to
be used judiciously for protecting the interest of the assessee as well
as of the revenue. In that case, on facts, it was found that having
regard to the age of the assessee and the circumstances in which she
was placed., she cannot be credited to make income of her own and in
those circumstances, the Hon’ble Supreme Court upheld the view of
the Tribunal in refusing to permit addition of the value of the subject
investments to the income of the assessee. In the instant case, there is
no material on record which would suggest that the appellant could
not be credited with having made any income of his own having
regard to his age and the circumstances in which he was placed. In the
event, it is construed that all un-explained source of expenditure
should not be deemed to be the income of the assessee and the
discretion should be used always in favour of the assessee, the Section
itself would become otioso.

Learned counsel also contended that before adding the amounts
in question as income of the assessee, i.e., before using the discretion,
the appellant ought to have had been noticed. The Section
9
does not require any such notice. In any view of the matter, from the
day one the question was should or should not be such expenditure be
deemed to be the income of the assessee and notice thereof was
adequately given to the assessee. Learned counsel for the appellant
contended that at the time of imposing penalty, a notice is required to
be given and the same analogy should be applied while such addition
is being made. The requirement of hearing the assessee and giving
him reasonable opportunity of being heard before imposing penalty is
a requirement of Section 274 of the Act. No such procedure has been
prescribed for making additions under Section 69C of the Act. In any
event, by virtue of Section 69C of the Act, it is obligatory on the part
of the assessee to explain, to the satisfaction of the Assessing Officer,
the source of expenditure made by him, with a rider that if the
explanation is not satisfactory, the Assessing Officer may use his
discretion against the assessee, which connotes an obligation to
satisfy, apart from the explanation to be given by him, that there was
existence of such circumstances in which the assessee was placed that
he cannot be credited with having made such income of his own. In
the event, such obligation had been discharged but ignoring the same,
Assessing Officer had added the expenditure as deemed income and
thereby had used his discretion against the assessee, it would have
been open to the assessee to call in question user of such discretion,
10
but the assessee did not make any endeavor at any stage to assert that
the circumstances in which he was then placed, he could not be
credited for having made the subject income of his own.
The learned counsel for the appellant lastly submitted that
according to the valuation report the property was constructed in the
year 1991, which connotes calendar year 1991. He submitted that
calendar year 1991 had two financial years and as such the deemed
income should be bifurcated. There is nothing on record to suggest
when construction commenced. The drawings from the subject
account were made from April, 1991. The facts of the case, therefore,
did not make out a case for bifurcation.

In the circumstances, the appeal fails and the same is dismissed.
( irmal Singh) (Barin Ghosh)
Judge Chief Justice
Jammu,
03.03.2009
Tilak, Secy.

H. S. Raina vs Income Tax Officer on 3 March, 2009

Jammu High Court
H. S. Raina vs Income Tax Officer on 3 March, 2009
       

  

  

 

 
 
 IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU            
ITA No. 1 OF 2008 
H. S. Raina
Petitioner
Income Tax Officer
Respondent  
!Mr. M. M. Gupta, Advocate 
^Mr. D. S. Thakur, Advocate

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Nirmal Singh, Judge
DATE : 03/03/2009 
:J U D G M E N T :

Per Barin Ghosh, CJ:

This is an appeal by the Assessee under Section 260 A of the
Income Tax Act, 1961 from the order of the Income Tax Appellate
Tribunal, Amritsar Bench, Amritsar.

In the year 1991 assessee constructed a house property. The
Assessee, who was a partner of six partnership Firms carrying on
finance business, had not filed his income tax returns for the earlier
four to five years contending that his income was not taxable. A
notice under Section 148 dated 18th February, 2000 was served on the
2
assessee on 7th March, 2000, whereupon on 11th February, 2002
assessee filed a return of income declaring income of Rs.21,175/-.
Assessee’s case was referred to the Valuation Cell, whereupon the
Valuation Cell reported that the house was constructed in the year
1991 at a cost of Rs. 17.00 lacs.

Assessee did not dispute the valuation. He contended that the
cost of construction was financed by the compensation amount of Rs.
17,85,395/- received by his mother in a land acquisition case.
A sum of Rs. 17, 85,395.70 received by a cheque dated 8th
April, 1991 issued by the Collector was deposited in the Savings Bank
Account No, 1968 of the mother of the assessee maintained with the
J&K Bank, Nanak Nagar, Jammu. Assessee contended that moneys
withdrawn from the said account were utilized for construction of the
house. Though the assessee did not make any effort to produce any
material to suggest utilization of the amounts so withdrawn for
construction of the house, but some of such withdrawals were
accepted to have been utilized for the construction purpose. It was
accepted that the assessee has been able to establish source of
Rs. 11,25,000/- for incurring expenses for construction of the said
house but failed to account for the source of incurring expenditure
amounting to Rs. 5, 75,000/-.

3

There is no dispute that a certain amount of money was paid to
the Principal of a School from the said account. The assessee did not
contend that the money so paid was used for construction purpose. In
addition to that, certain amounts of money were paid to four Finance
Companies and certain amounts of money were paid to certain
individuals from the said account. The assessee contended that the
payments made to the Finance Companies were for repayment of
loans taken from them for construction purpose. Assessee contended
that payments to those individuals were on account of purchase of
materials. Assessee furnished the names and particulars of those
Finance Companies as well as of those individuals. Notices sent to
them were returned un-served. Partners of those Firms appeared
before the Assessing Tax Officer at the instance of the assessee, but
individuals did not. Partners of those Firms stated that loans were
given to the assessee by the Firms represented by them and those were
paid by the assessee through the subject cheques. They stated that the
Firms were income tax assesses at the relevant time. They also stated
that the loans did not bear any interest. They also stated that the
Firms
represented by them have closed their business in view of the
directions of the Reserve Bank of India.

4

The amounts paid to the Firms and the amounts paid to those
individuals from the said account were not accepted as amounts spent
for construction of the house. That appears to be the principal dispute
raised by the assessee before the Commissioner of Income Tax
Appeal and having lost before him went before the Tribunal and again
having lost before the Tribunal has come up before this Court.
The principal contention of the appellant is that whatever was
within his command he did, i.e., furnishing of particulars of the
persons, who granted loans to the assessee and supplied materials; and
there is no just reason not to accept repayment of such loans and
payments made for purchase of materials.

There is no dispute that certain payments were made to certain
Firms carrying on finance business. However, neither the assessee,
nor the partners of the subject firms could bring on record any thing
to
suggest that such payments were on account of repayment of loans
received by the assessee at an earlier point of time. There was no
evidence at all, except statements made by four individuals and
assertions of the assessee, that loans were received by the assessee
from those Firms at any point of time earlier than the dates of
payment of the subject amounts from the said account. Similarly,
there was no material, except assertions by the assessee, that building
materials were procured by the assessee from those individuals, who
5
were paid certain amounts from the said account. A payment can be
accepted as repayment or on account of purchase when it is
established that an earlier payment was received or a purchase was
made. Neither an earlier payment, nor any purchase said to have been
made was established. In the circumstances, non-acceptance of
payments made to the said Firms as repayment of loans and nonacceptance
of payments made to those individuals on account of
purchase of materials cannot be said to be an act so capricious and
unjust that the same can be called in question as a substantial
question
of law. Certain payments made to certain other individuals were
accepted as payments made for construction purpose, but without
there being anything to suggest that the payments so made were
utilized for construction. In the circumstances non-acceptance of
payments made to the concerned individuals as payments made on
account of purchase of materials cannot be said to be question of law
inasmuch as the comparable payments cannot with certainty be taken
as payments made for the construction.

The learned counsel for the appellant cited the judgment of the
Hon’ble Supreme Court rendered in the case of Lalchand Bhagat
Ambica Ram v. Commissioner of Income-Tax, Bihar and Orissa,

reported in 37 ITR 288, and contended that it is suspicion or
conjecture or surmise on the part of the Tribunal, which has taken
6
place of evidence. He submitted that in addition to that the department
has applied the rule of thumb. In other words, he contended that
contentions of the appellant that he repaid loans supported by
evidence of grant of loan by the partners of the Firms from whom the
loans had been taken are material evidence, which could not be
ignored either on the basis of rule of thumb or on suspicion or
conjecture or surmise.

Section 69C of the Act provides that where in any financial
year an assessee has incurred any expenditure and he offers no
explanation about the source of such expenditure or part thereof, or
the explanation, if any, offered by him is not, in the opinion of the
Assessing Officer, satisfactory, the amount covered by such
expenditure or part thereof, as the case may be, may be deemed to be
the income of the assessee for such financial year. Therefore, in terms
of Section 69C of the Act, appellant was required to explain
satisfactorily the source of the expenditure of Rs. 17.00 lacs, which
he
had incurred for construction of the house in question. The
explanation as was put forward by the appellant was repayment of
loans, which were used for the construction, and payments on account
of purchase of materials. Receipt of loans, utilization thereof for
construction and purchase of materials were, therefore, the essential
ingredients to satisfy that the payments in question were made for
7
repayment of loans and for discharging the debts incurred on account
of purchase of materials. Since there was nothing to suggest receipt of
loans and utilization thereof for construction, except assertions, and
at
the same time there being nothing to suggest procurement of materials
from those individuals, who were paid the amounts in question,
nonacceptance
of such assertions, to our mind, cannot be said to be based
on suspicion, conjecture or surmise or by applying the rule of thumb.
Learned counsel next contended by referring to the judgment of
the Hon’ble Supreme Court of India in the case of Commissioner of
Income Tax v. Orissa Corporation (P) Ltd.,
reported in 159 ITR 78,
that since the assessee could not produce the two individuals, from
whom materials were purchased, an adverse inference could not be
drawn against the assertions made by the assessee. In the instant case,
no adverse inference was drawn against the assessee. Apart from the
failure on the part of the assessee in producing those individuals, he
failed to bring on record anything to suggest purchase of materials
from those individuals.

Learned counsel for the assessee contended, as notice by the
Hon’ble Supreme Court of India in Commissioner of Income Tax v.
Smt. P. K. %oorjahan, reported in 237 ITR 570, that the word ‘shall’
was proposed to be inserted in Section 69C which was later on
changed by the word ‘may’ and, accordingly, no sooner the
8
explanation of the assessee is not satisfactory, the amounts cannot be
deemed to be the income of the assessee. It is true, as pointed out by
the Hon’ble Supreme Court in the case referred to above, a discretion
has been given to the department in the matter of deeming the
unexplained
amount as income of the assessee, but such discretion is to
be used judiciously for protecting the interest of the assessee as well
as of the revenue. In that case, on facts, it was found that having
regard to the age of the assessee and the circumstances in which she
was placed., she cannot be credited to make income of her own and in
those circumstances, the Hon’ble Supreme Court upheld the view of
the Tribunal in refusing to permit addition of the value of the subject
investments to the income of the assessee. In the instant case, there
is
no material on record which would suggest that the appellant could
not be credited with having made any income of his own having
regard to his age and the circumstances in which he was placed. In the
event, it is construed that all un-explained source of expenditure
should not be deemed to be the income of the assessee and the
discretion should be used always in favour of the assessee, the Section
itself would become otioso.

Learned counsel also contended that before adding the amounts
in question as income of the assessee, i.e., before using the
discretion,
the appellant ought to have had been noticed. The Section
9
does not require any such notice. In any view of the matter, from the
day one the question was should or should not be such expenditure be
deemed to be the income of the assessee and notice thereof was
adequately given to the assessee. Learned counsel for the appellant
contended that at the time of imposing penalty, a notice is required to
be given and the same analogy should be applied while such addition
is being made. The requirement of hearing the assessee and giving
him reasonable opportunity of being heard before imposing penalty is
a requirement of Section 274 of the Act. No such procedure has been
prescribed for making additions under Section 69C of the Act. In any
event, by virtue of Section 69C of the Act, it is obligatory on the
part
of the assessee to explain, to the satisfaction of the Assessing
Officer,
the source of expenditure made by him, with a rider that if the
explanation is not satisfactory, the Assessing Officer may use his
discretion against the assessee, which connotes an obligation to
satisfy, apart from the explanation to be given by him, that there was
existence of such circumstances in which the assessee was placed that
he cannot be credited with having made such income of his own. In
the event, such obligation had been discharged but ignoring the same,
Assessing Officer had added the expenditure as deemed income and
thereby had used his discretion against the assessee, it would have
been open to the assessee to call in question user of such discretion,
10
but the assessee did not make any endeavor at any stage to assert that
the circumstances in which he was then placed, he could not be
credited for having made the subject income of his own.
The learned counsel for the appellant lastly submitted that
according to the valuation report the property was constructed in the
year 1991, which connotes calendar year 1991. He submitted that
calendar year 1991 had two financial years and as such the deemed
income should be bifurcated. There is nothing on record to suggest
when construction commenced. The drawings from the subject
account were made from April, 1991. The facts of the case, therefore,
did not make out a case for bifurcation.

In the circumstances, the appeal fails and the same is dismissed.
( irmal Singh) (Barin Ghosh)
Judge Chief Justice
Jammu,
03.03.2009
Tilak, Secy.

Dr. Anuradha Bharti And Anr vs State Of J&K And Ors on 2 March, 2009

Jammu High Court
Dr. Anuradha Bharti And Anr vs State Of J&K And Ors on 2 March, 2009
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPAOW No. 50 OF 2008    
Dr. Anuradha Bharti and Anr
Petitioners
State of J&K and ors
Respondent  
!Mr. K. S. Johal, Advocate with M/s. Amit Gupta and Pavit Singh Katoch,Advocates
^Mr. M. I. Qadri, Advocate General with Mrs. Shaista Hakim,Dy. A. G. with Mr. D.
S. Chauhan, Advocate with Mr. D.C. Raina,Sr. Advocate with Mr. Vikas Mangotra, 
Advocate. 

Hon'ble Mr. Justice Barin Ghosh, Chief Justice
Hon'ble Mr. Justice Virender Singh, Judge
Date: 02/03/2009 
:J U D G M E N T :

Per Barin Ghosh, CJ (Oral):

The appellants along with some others approached the Writ Court
seeking to contend that the insertions made in SRO 158 of 1995 by SRO
430 of 2007 are inappropriate and not sustainable, the reason being that
such insertions stood in the way of the writ petitioners being eligible to
offer themselves for being admitted in the post-graduate medical
courses.

2

By the judgment and order under appeal, the writ petition has been
rejected on the ground that the insertions so made are aimed at fulfilling
the Directive Principles of State policy contained in Section 24 of the
Constitution of the State. Being aggrieved thereby the present appeal has
been preferred by two of the writ petitioners.

SRO 158 of 1995 sets down the eligibility of candidates who are
entitled to apply for being considered for admission in post-graduate
courses in Medical Colleges. By SRO 430 of 2007, two clauses have
been added to SRO 158 of 1995, whereby and under an in-service
aspirant seeking admission in post-graduate courses in Medical Colleges
is required to have at least two years of rural service experience. Only
when a candidate has so served, he would be entitled to apply for being
considered for admission on the strength of a certificate to be issued. It
had been the contention of the State, which contention has been accepted
by the learned Single Judge and repeated before us, that the said clauses
had been inserted for the purpose of enticing in-service Medical Officers
to serve the village community and, thereby, to improve the backward
regions of the State insofar as medical facilities are concerned.
There cannot be any dispute that many and probably almost all the
rural areas are backward in comparison to urban areas of the State in
relation to medical facilities available to the denizens of the respective
areas. Therefore, there can not be any dispute that if the Government
3
decides as a policy to improve upon the medical infrastructure available
in rural areas and, for that matter, either entices or compels, as a
condition of service, its existing members of medical service to serve in
rural areas, such a policy, as such, may not be interfereable.
In the instant case, however, by the insertions, referred to above,
service in the rural areas has been made as an eligibility criteria or
condition for an in-service candidate to apply. Specifying eligibility, no
doubt, is within the domain of the person competent to specify
eligibility. Neither the writ petitioners, nor the appellants have contended
that the State Government is incompetent to fix eligibility. They are
contending that fixation of eligibility of having minimum of two years of
rural service is bad and illegal, inasmuch as the same is not achievable
through the effort of the candidate, but depends upon things which are
beyond his control.

Fixation of eligibility either of academics or of experience,
though, is a matter strictly within the domain of the person competent to
fix eligibility, but the same must be achievable by the person seeking to
cross the eligibility hurdle either by his own efforts or by exercise of his
option. When an eligibility criterion of a particular percentage in a
particular examination is fixed, the person, who has been able to achieve
that criterion, alone is entitled to contend that he has eligibility.
Obtaining of that particular percentage in that particular examination
4
depends upon the effort of that candidate and is not circumscribed by
anything else. Similarly when a particular experience is the bench-mark
of eligibility, a person who has that experience can contend that he has
eligibility. In order to achieve that experience the person concerned must
have the option to pursue his career in that direction without being
circumscribed by anything else.

In the instant case, had there been a policy of the Government that
every entrant in the medical service would be required to serve either
two years or more in the rural areas as a condition of his service, it could
be said that the eligibility fixed by the insertions is achievable by the
candidate seeking admission through his own volition by exercise of his
option to join the medical service. In the absence of such a policy,
rendering of two years rural service by a Health Department Medical
Officer would depend on his being per chance posted in a rural area for
two years. The same would not depend on his volition. If eligibility is
fixed on the basis of per chance, achievement thereof would not depend
upon either effort or volition; the same will depend on fortune, and
fortune cannot be regarded as eligibility. There is admittedly no such
policy.

Even though a policy for making Health Department Medical
Officers to serve at least two years in rural areas would be laudable and
towards achievement of the goal set out in Section 24 of the
5
Constitution, but the inserted eligibility criteria will not achieve the
purpose unless the officer concerned seeks to pursue higher studies and,
accordingly, the purpose and object of putting such eligibility criteria by
the insertions in question may partially serve the purpose by enticing
only those doctors, if there be any, who are interested to pursue higher
studies to get themselves posted for two years in rural areas, but even
then that would be dependent on the wishes of some one else, i.e.,
authority competent to post, upon which they have no control.
In the circumstances, we do not think that the conditions imposed
by SRO 430 of 2007 achieved or could achieve the purpose and object of
Section 24 of the Constitution or that by the said SRO, an eligibility
criteria could be inserted in SRO 158 of 1995 which is not achievable by
the candidate seeking admission of his own volition or by exercise of his
option but is entirely dependent upon some body else’s action.
We, accordingly, hold that SRO 430 of 2007 cannot stand the test
of law and, accordingly, allow the appeal, set aside the judgment and
order under appeal and quash SRO 430 of 2007.

At the same time, we have to think about further relief(s) to be
granted to the appellants before us. We make it clear that as on the date
of the writ petition, the SRO in question was holding the fort and,
accordingly, was applicable to the appellants. It was on the permission
of the Court that the appellants appeared in the Entrance Examination.

6

One of them did succeed in such examination and, at the same time, it is
also correct that the judgment rendered by us today would relate back to
the date of presentation of the writ petition insofar as the appellants are
concerned, the but the fact remains that the success of the said appellant
at the said Entrance Examination did not fructify into an admission in
view of dismissal of the writ petition, and as a result the seat in which
the said appellant could be accommodated has been filled up by some
one else. In the circumstances, it would be appropriate on our part to
permit the appellants to respond to the present advertisement, which we
have kept alive only for the appellants by interim orders passed on the
appeal and, accordingly, direct the respondents to allow the appellants
to fill up forms in terms of the advertisement published in January,
2009 by coming Friday, i.e., March 6, 2009, with a further direction
upon the respondents to allow the appellants to take full advantage of
such applications to be made by them.

Learned counsel for the appellants has relied upon the judgment of
the Hon’ble Supreme Court rendered in case of Kanpur University v.
Sameera Gupta,
reported in (1983) 4 SCC 309 and many other
judgments, where the Hon’ble Supreme Court found as a fact that a
candidate, who was entitled to be admitted, was not admitted and,
accordingly, issued directions for giving admission to such a candidate
who ought to have had been admitted. It was submitted that having
7
regard to the success recorded by the Competent Authority, the said
appellant should be given the benefit of his success and he must be given
a berth in the seats available for the forthcoming admissions. The only
difference between the candidates in the cases before the Hon’ble
Supreme Court and the case at hand is that the candidates before the
Hon’ble Supreme Court of their own right had appeared at the test for
admission. That right was sought to be defeated by not giving them the
marks to which they were entitled. The Hon’ble Supreme Court had
corrected only that and upheld their success at the test in which they had
appeared of their own right; whereas in the instant case, the appearance
of the appellants was not permissible in view of the subject eligibility
criteria. It was only on the basis of the interim order of the Court that the
appellants appeared at the test. Their right to appear was not pronounced
by lifting the embargo. One of the appellants succeeded in the test, but
the said success did not mature into an admission. In consequence, the
seat to which he could be accommodated has already been supplied. By
reason of the pronouncement made today, the appellants’ right to be
considered without achieving the subject eligibility has been upheld and
the embargo has been lifted and they have been put in the same platform
as that of others. This right can be exercised with others who would be
appearing in the forthcoming examination. In the circumstances, if one
of those seats is kept reserved for one of the appellants, the same would
8
be inappropriate, as competition for that seat would be lost to people
entitled to compete for the same.

It has come to our knowledge that appellant No. 2 has filed a writ
petition, registered as SWP no. 740/2008, seeking to contend that,
inasmuch as he has tendered resignation, he is no longer an employee of
the State and, accordingly, the bar imposed by SRO 430 of 2007 is not
applicable to him and, therefore, he must be granted the benefit of the
success that he has obtained in the test conducted in the year 2007. We
dismiss the said writ petition and all proceedings thereunder only on the
ground that the success that the appellant No. 2 obtained in the test was
on the basis of an interim order passed by the Court, but in his capacity
as an in-service candidate. Without that order, the appellant could not
appear in the examination. At or before filling up of the form for
appearing in the examination, he did not disclose that he is a candidate
who is not associated with the Government as one of its employees.
Therefore, he is not entitled to take advantage of the success that he
obtained at the said test in any capacity except in his capacity as an
employee of the State.

We make it clear that the tenor of this judgment would indicate
that the effect of this judgment is prospective, except for the appellants
for whom by interim orders the period of responding to the
advertisement had been extended from time to time.

9

After we pronounced the judgment, the learned counsel for the
appellant cited a number of judgments, but none of them pertain to
lifting of eligibility criteria by the pronouncement of Court and
accommodating the successful candidate competing on interim order,
without reserving a place for him in the competition.
(Virender Singh) (Barin Ghosh)
Judge Chief Justice
Jammu,
02.03.2009.