Service Law: Another appointment with proper permission, cannot be termed as resignation

Allowing the petition holding that the appellant had lien over his previous post and directing respondent-University to pay service and pensionary benefits, was set-aside. (Para 1)

In the present case, the short questions of law which fall for consideration are –

(i) Whether the order dated 08.04.1993 passed by the Respondent- Gulbarga University pursuant to Rule 252(b) of Karnataka Civil Service Rules (for short “KCS Rules”), ‘relieving’ the appellant to accept another appointment as ‘Assistant Registrar’ ought to be treated as an order accepting ‘resignation’, to take up the post on new assignment?

(ii) Whether in the facts of the case, on joining the new post, the appellant’s lien on the original/previous post will be continued to be maintained, until he is permanently absorbed in the new department or cadre in which he is subsequently appointed?

(iii) Whether in the facts and circumstances of the case, the relief as prayed by the appellant in the writ petition to consider him for appointment on the post of Assistant Registrar in the previous/original cadre at par with his juniors and consequential benefits on retirement can be allowed? If yes, to what extent? (Para 2)

On his appointment, respondent-University vide office order dated 08.04.1993 relieved the appellant from the post of Office Superintendent w.e.f. 04.02.1993, and duly recorded that he is being relieved to accept the another appointment as ‘Assistant Registrar’ in the Gulbarga University. (Para 4)

Pursuant thereto, the appellant joined on the post of Assistant Registrar in the respondent-University. (Para 4)

The appellant continued on probation on the post of Assistant Registrar. Thereafter, the High Court vide order dated 24.06.1998 allowed Writ Petition No. 5364 of 1993 and quashed the appointment of the appellant for reasons recorded in the order. (Para 5)

Pursuant to the dismissal of the writ appeals, the respondent-University in compliance of the orders, withdrew the appointment of the appellant as Assistant Registrar vide office order dated 23.12.2000 (hereinafter referred to as “Resolution”) and retained/placed him back in his previous post of ‘Office Superintendent’ with immediate effect. (Para 6)

The High Court passed an Interim Order that the operation of the earlier order dated 24.6.1998 passed in W.P. No. 5364/1993 was stayed pending admission of W.A.

The Division Bench of the Hon’ble Court of Karnataka has held in its order dated 29th Sept. 2000 in both the W.A.s that the learned Single Judge was right in quashing the order of appointment dated 4.2.1993 in respondent (sic) of Sri L.R. Patil as Assist. Registrar in Gulbarga University, Gulbarga. There is neither irregularity nor illegality in the order of the learned Single Judge. The above appeals were dismissed by the High Court.

It is observed that Sri L.R. Patil, has not maintained the lien on his previous post, i.e., Office Superintendent with the approval of competent authority as required under General Rules 17 of K.C.S.Rs.” (Para 6)

In the meantime, the appellant superannuated on 30.06.2007 from the post of ‘Office Superintendent’. (Para 8)

Rule 252(b) – Registration (sic[Registration]) of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not a resignation of public service.” (Para 14)

On perusal of the aforesaid Rule, it is clear that if a government servant seeks employment in another unit or department or in another cadre or grade in the same department under the Rules, his/her lien on the original appointment shall be continued to be maintained until absorbed in the department or cadre in which he/she is newly appointed. In case the employee is absorbed, he/she shall be entitled to the benefit of the past service for the purpose of leave and pension (Para 14)

In view of the discussion made herein above, we answer the questions framed above as follows –

(i) Order dated 08.04.1993 passed by respondent-University, relieving the appellant to take up the new appointment as ‘Assistant Registrar’ is not to be treated as resignation in terms of Rule 252(b) of KCS Rules.

(ii) The appellant’s lien on the original/previous post of ‘Office Superintendent’ shall be maintained and deemed to be continued from the date when he was relieved by respondent- University, i.e., 08.04.1993.

(iii) Considering the facts and circumstances of the case and in order to do complete justice, the appellant will be entitled to all the service benefits including seniority, consequential promotions and pensionary benefits at par with his juniors, though notionally, since he superannuated on 30.06.2007 and has not worked on the promoted post. (Para 21)

SUPREME COURT OF INDIA

2023 STPL(Web) 236 SC

[2023 INSC 796]

L.R. Patil Vs. Gulbarga University, Gulbarga

Civil Appeal No. 3254 of 2013-Decided on 4-5-2023

https://stpllaw.in/wp-content/uploads/2023/09/2023-STPLWeb-236-SC.pdf

Next Story

Breach of peace: It must disturb public order, not just personal peace

Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.

The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.

The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.

The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.

Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.

The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.

It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)

GAUHATI HIGH COURT

2023 STPL(Web) 183 Gauhati

[2024 STPL 1651 Gauhati]

Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.

Crl.Pet. 239 of 2021-Decided on 8-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf

 

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Electricity: Outstanding arrears from previous owner

Constitution of India, Article 226 – Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 – Electricity Act, 2003 – Section 43, 49, 50, 56 – Electricity – Outstanding arrears from previous owner – The petitioner, a partnership firm, sought a writ petition under Article 226 challenging a decision by the Assam Power Distribution Company Limited (APDCL) to deny a new electricity connection to their premises due to outstanding arrears from previous electricity bills.

The court directed interim relief for immediate electricity connection, subject to 50% payment of outstanding dues, with the remaining 50% to be paid upon dismissal of the writ petition.

The petitioner participated in an auction sale of a property and purchased a portion of land with a Business Centre cum Market Complex. They subsequently applied for a new electricity connection, which was denied by APDCL citing outstanding dues.

The court referred to the Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 and the Electricity Act, 2003. It cited a Supreme Court decision (K.C. Ninan vs. Kerala State Electricity Board) regarding the liability of auction purchasers for previous dues in properties sold on ‘as is where is’ basis.

The court dismissed the writ petition, holding the petitioner liable for outstanding electricity dues as per the auction sale agreement. It directed the petitioner to pay the outstanding dues as per the interim order, with APDCL waiving the accrued interest on the principal dues. (Para 15, 16)

GAUHATI HIGH COURT

2023 STPL(Web) 182 Gauhati

[2024 STPL 1650 Gauhati]

M/S Borah And Companyjiban Phukan Nagar Vs. Assam Power Distribution Company Ltd. And 3 Ors.

WP(C) 989 of 2014-Decided on 7-11-2023

2023 STPL(Web) 182 Gauhati

Next Story

Executive instructions cannot nullify statutory rules

Assam Bonded Warehouse Rules, 1965 – Rule 7 – Refund of Charges – Administrative Order – Statutory Rules – The present writ petition contested an order issued by the Secretary to the Government of Assam, Excise Department, reintroducing establishment charges under Rule 7 of the Assam Bonded Warehouse Rules, 1965, despite their abolition by the Assam Bonded Warehouse (Amendment) Rules, 2005.

The Court held that executive instructions cannot nullify statutory rules. Citing the principle established in K. Kuppusamy case, it ruled that until a rule is amended, it remains applicable. Consequently, the impugned order was set aside as ultra vires. Regarding refund, relying on Mafatlal Industries Ltd. case, the Court directed the petitioner to present evidence to the Excise Commissioner, who would determine entitlement to refund within four months, considering whether the petitioner passed on the burden of charges to retailers. (Para 15)

GAUHATI HIGH COURT

2023 STPL(Web) 181 Gauhati

[2024 STPL 1649 Gauhati]

M/S Centenary Distilleries P Ltd. Vs. State Of Assam And 2 Ors.

WP(C) 2875 of 2014-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-181-Gauhati-2.pdf

 

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Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

Land Disputes – Binding nature of Civil Court’s decree on Revenue Courts – The instant writ petition challenged a judgment of the Assam Board of Revenue concerning a land dispute. The dispute pertained to a plot of land associated with the Dargah of Pir Saheb. The Civil Court in Title Suit No.176/1978 had decreed in favor of the Petitioners’ predecessor, declaring their right, title, and possession over the land. The State of Assam was restrained from interference. Subsequently, the Settlement Officer issued a Khatian in favor of the Petitioners’ predecessor, and a new Dag was created. However, the Assam Board of Revenue, in its impugned judgment, disregarded the Civil Court’s decree and cancelled the Khatian issued to the Petitioners’ predecessor.

This action was deemed contrary to established principles, as Civil Court decrees are binding on Revenue Courts. Therefore, the High Court set aside the impugned judgment, restoring the Khatian to the Petitioners’ predecessor. (Para 12)

GAUHATI HIGH COURT

2023 STPL(Web) 180 Gauhati

[2024 STPL 1648 Gauhati]

Sayed Moinuddin Ahmed Vs. State Of Assam And 3 Ors.

WP(C) 4701 of 2013-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-180-Gauhati.pdf

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