Saturday, May 6, 2017

Sexual harassment and Vishakha guidelines: All you need to know

The petition, filed by the women’s right group Vishaka and four other women's organisations in Rajasthan against the State of Rajasthan and the Union of India, resulted in what are popularly known as the Vishaka Guidelines.  




What constitutes sexual harassment?


The Vishakha guidelines define sexual harassment including unwelcome sexually determined behaviour (whether directly or by implication) as:
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature


The Guidelines

Vishakha guidelines, as laid down by the Supreme Court put the onus of a safe working environment on the employer.
The guidelines say that: “It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.”
The guidelines also lay down a grievance redressal mechanism that mandates all companies, whether operating in the public or private sector, to set up Complaints Committee within the organisation to look into such offences. According to Tehelka’s managing editor, Shoma Choudhary, their organisation (despite championing women causes) didn't have such a committee.


Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints,”  the Supreme Court guidelines say.


The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.


Some general points about the judgement:

legal freedom
Below are some of the general points of the Vishakha judgment:

Gender equality includes protection from sexual harassment and the right to work with dignity as per our constitution.
Extra hazard for a working woman compared her male colleague is clear violation of the fundamental rights of ‘Gender Equality’ & Right to Life and Liberty.
Safe working environment is fundamental right of a working woman.
In no way should working women be discriminated at the workplace against male employees. (If a woman is, then it must be documented in company policies, for example limitation of women in police and armed forces.)
Working with full dignity is the fundamental right of working women.
The right to work as an inalienable right of all working women.
The Vishakha judgment had recommended a Complaints Committee at all workplaces, headed by a woman employee, with not less than half of its members being women. All complaints of sexual harassment by any woman employee would be directed to this committee. This is significant because an immediate supervisor may also be the perpetrator. The committee advises the victim on further course of action and recommends to the management the course of action against the man accused of harassment.


How does it define sexual harassment at the workplace?

Here is how the Vishakha judgment defines sexual harassment at the workplace.
Anything at work that can place the working woman at disadvantage compared to other male employees in her official career just because she is a woman – can be termed as sexual harassment.
Unwelcome sexually determined behaviour & demands from males employees at workplace, such as: any physical contacts and advances, sexually colored remarks, showing pornography, passing lewd comments or gestures, sexual demands by any means, any rumors/talk at workplace with sexually colored remarks about a working woman, or spreading rumours about a woman’s sexual relationship with anybody.

Friday, May 5, 2017

Delhi HC Allows Service of Summons via WhatsApp, Text message and Email

The High Court of Delhi recently joined ranks with several Courts around the country that are experimenting with the usage of technology in judicial proceedings. Justice Rajiv Sahai Endlaw has recently allowed the Plaintiff to serve the summons on one of the defendants through Whatsapp, text message and email.
Legal Freedom

“The plaintiffs are permitted to serve the defendant No.9 Ashok Kumar Agarwal by text message as well as through Whatsapp as well as by email and to file affidavit of service”,he said in a short order.The Court is hearing a case filed by Tata Sons alleging that 35 unidentified email ids were being used since December, 2015 to circulate “unwarranted, defamatory and baseless allegations questioning the integrity and educational qualification” of one of its officials, Mr. Tarun Samant. Three internet service providers (ISPs) were also made parties to the suit. It had, therefore, sought a permanent injunction against circulation of such content, demanding that all such email ids be blocked.Court’s orders issued in December last year had compelled the ISPs to reveal under a sealed cover identities of 35 anonymous email addresses from which the derogatory material was disseminated. While three of the defendants were served at their respective addresses, summons to the fourth respondent were served via Whatsapp, email and text message, after service of summons could not be completed at his available address.Last month, the High Court of Bombay had also accepted the served intimation and information via Whatsapp as service of notice, after one of the defendants in a copyright infringement case was being particularly evasive. The case concerned allegations of copyright infringement against Producers of the Kannada movie ‘Pushpaka Vimana’ that was released earlier this year.After several failed attempts to serve the summons on them, the judicial team found out the contact number of the producers and verified it via the app Truecaller, and then sent the intimation and information about the case through WhatsApp.  The intimation were also subsequently sent through Email.But Asian Age reported that when it contacted HC officials for clarification as to whether it had accepted WhatsApp or email as legitimate method of serving notice or summons, an official refuted it and said, “The order has been misinterpreted and the court is not advocating serving of notice through social media. Serving of summons has to be done through established procedure.”

Saturday, April 22, 2017

Dis-Honour Of Cheque Cases Can Be Filed Only To The Court Within Whose Local Jurisdiction.

A Three Judge Bench Of The Supreme Court Finally Held That A Complaint Of Dis-Honour Of Cheque Can Be Filed Only To The Court Within Whose Local Jurisdiction The Offence Was Committed, Which In The Present Context Is Where The Cheque Is Dishonoured By The Bank On Which It Is Drawn. The Court Clarified That The Complainant Is Statutorily Bound To Comply With Section 177 Etc. Of The CrPC And Therefore The Place Or Situs Where The Section 138 Complaint Is To Be Filed Is Not Of High Court


following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. The Court accepted the view of another two Judge Bench Judgment in Harman Electronics Pvt.Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would...

Grant of bail in cases of cheating and criminal breach of trust affecting large number of people would have an adverse impact on trust of criminal justice system

Delhi High Court: Rejecting the bail application of Sunil Dahiya, MD of Vigneshwara Group of Companies  under Section 439 of the Code of Criminal Procedure, the Court held that: “ The grant of regular bail in a case involving cheating, criminal breach of trust by an agent, of such a large magnitude of money, affecting a very large number of people would also have an adverse impact not only in the progress of the case, but also on the trust of the criminal justice system that people repose. It would certainly not be safe for the society. In case the applicant accused is granted regular bail, it is also likely that he may tamper with the evidence/witnesses, or even threaten them considering that the stake for the accused is high. It is also very much likely that looking to the high stakes, the nature and extent of his involvement, and his resources, he may flee from justice.”
It is pertinent to note that Sunil Dahiya was arrested and had been in judicial custody following complaints from investors who had allegedly been duped after investing money in two projects for construction of IT parks in Gurgaon and Manesar. It is was alleged that funds to the tune of around Rs 600 crores have been siphoned off by the accused by colluding, conspiring, ganging up with his family members and illegally benefiting from the complainants’ money on the false pretext of providing lucrative returns.
Mr Dahiya was represented by Senior Counsel Arvind Nigam who argued that, the right to automatic bail under the said provision stems from the fundamental right of personal liberty as enshrined under Article 21 of the Constitution and it is violative of Article 21, if an undertrial prisoner is detained in judicial custody for an indefinite period. It is pertinent to note that Dahiya had been in judicial custody since October 30, 2014 and relied upon Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 to support Dahiya’s application for bail.
Whereas, the  Addl. Public Prosecutor relied upon Sunil Grover v. State, 2012 SCC Online Del 3539 and tried to distinguish the situation in Sanjay Chandra from the present case, by stating that in Sanjay Chandra, exchequer was put to loss by not holding auction of government resources, however in the present case general members of the public have been directly put to loss.
The Bench of  Vipin Sanghi, J. while considering the factors to grant bail laid as down  in Dipak Shubhash Chandra Mehta v. Central Bureau of Investigation, (2012) 4 SCC 134  and relying on Neeru Yadav v. State of U.P., (2014) 16 SCC 508 dismissed the bail application. The Court also stated that ‘the applicant accused appears to be a person with deep pockets. If he could manipulate and dupe more than 1,000 investors to invest in his projects, he may as well be able to influence these investors, other witnesses and the evidence to save his own skin’ and cited Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439 in which it was held that: “Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.” The Court also concurred with the view in Sunil Grover case in which the bail of the accused was rejected by the Court on similar grounds. [Sunil Dahiya v. State (NCT of Delhi), 2016 SCC OnLine Del 5566, decided on October 18, 2016]

Free legal services by lawyer will be considered for elevation to bench: Law Minister


Union Law Minister Ravi Shankar Prasad has said pro bono legal services rendered by a lawyer will be a part of consideration while assessment for elevation to bench

The government will also take services of retired judicial officers to provide free legal aid to poor litigants through digital platforms like video conference at various district levels
                     “The government is of the view that credible transparent legal aid should also be a component while assessing a lawyer for elevation to bench,” the Law Minister said
                   “The desire to give legal aid must come from commitment, not for publicity,” Prasad said
                       The government will also avail of the services of retired judicial officers by appointing them as Nyaya Mitra to assist poor litigants who are suffering due to delay in disposal of their case in court
                        Initiating Narendra Modi government’s pro-bono legal aid movement and launching three schemes to facilitate legal aid and access to justice for poor people, the minister said: “Lawyers interested in volunteering for pro bono services can register online with department of justice. Litigants can then apply for legal aid lawyer online and seek advice online.”
                       Another scheme Tele Law, an e-governance scheme to help people from the far-flung areas to access state legal services, has been launched. People can connect to lawyers at the state legal services authority through teleconference using the common service centres opened in all districts

The pilot project will be launched across 1,800 panchayats in Uttar Pradesh, Bihar, North-East and Jammu & Kashmir. Later, the same will be extended to other states too
                    Besides, scheme Nyaya Mitra of retired judges and legal officers will be employed at district level to assist litigants whose cases have been pending for a long time



It will also help to identify cases that can be solved through Lok Adalats, and help the litigants connect to the Tele Law advisers


he scheme to be launched in 227 districts across North-East, Jammu & Kashmir, UP, Bihar, Maharashtra, Rajasthan, Orissa, Gujarat and Bengal.

Advocate Act 1961

Bar Council of India:
There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely .Provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977, assumes charge of the office. .Provided that every such member shall continue to hold as member of the Bar Council of India until his successor is elected.

Functions of State Bar Councils:
(1) The functions of a State Bar Council shall be-(a) to admit persons as advocates on its roll.

Membership in International Bodies:
The Bar Council of India may become a member of international legal bodies such as the International Bar Associations or the n International Legal Aid Association, contributes such sums as it thinks fit to such bodies by way of subscription or otherwise and authorise expenditure on the participation of its representatives in any international legal conference or seminar.

Senior an other advocates:
(1) there shall be two classes of advocates, namely , senior advocates and other advocates.(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability standing at the Bar or special knowledge or experience in law he is deserving of such distinction.(3) Senior advocates, shall in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.(4) An advocate of the Supreme Court who was senior advocate of that Court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate .

Certificate of enrolment:
(1) There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act.(2). Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within ninety days of such change.

Authority to whom applications for enrolment may be made:
An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practice.

Punishment of Advocates for misconduct:
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal of its disciplinary committee.(2) Where an advocate is suspended from practice under clause (c) of sub section (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.(3) Where any notice is issued to the Advocate-General under sub-section (2) the Advocate General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

Application of sections 5 and 12 of Limitation Act, 1963:
The provisions of sections 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under Section 37 and Section 38

General power of the Bar Council of India to make rules:
The Bar Council of India may make rules for discharging its functions under this Act and in particular, such rules may prescribe.The conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council, including the qualifications or disqualification of voters, and the matter in which an electoral roll of voters may be prepared and revised by a State Bar Council.Qualifications for membership of a Bar Council and the disqualification for such membership.

Special provisions relating to certain disciplinary proceedings:

Notwithstanding anything contained in this Chapter, every advocate who is entitled a of right to practice in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction.



Tuesday, May 24, 2016

एक कवि की रचना........

एक कवि नदी के किनारे खड़ा था !
तभी वहाँ से एक लड़की का शव नदी में तैरता हुआ जा रहा था।
तो तभी कवि ने उस शव से पूछा
कौन हो तुम ओ सुकुमारी,

बह रही नदियां के जल में ?

कोई तो होगा तेरा अपना,

मानव निर्मित इस भू-तल मे !

किस घर की तुम बेटी हो,

किस क्यारी की कली हो तुम

किसने तुमको छला है बोलो,

क्यों दुनिया छोड़ चली हो तुम ?

किसके नाम की मेंहदी बोलो,

हांथो पर रची है तेरे ?

बोलो किसके नाम की बिंदिया,

मांथे पर लगी है तेरे ?

लगती हो तुम राजकुमारी,

या देव लोक से आई हो ?

उपमा रहित ये रूप तुम्हारा,

ये रूप कहाँ से लायी हो?


""दूसरा दृश्य----""

कवि की बाते सुनकर,,

लड़की की आत्मा बोलती है..

कवी राज मुझ को क्षमा करो,

गरीब पिता की बेटी हुँ !

इसलिये मृत मीन की भांती,

जल धारा पर लेटी हुँ !

रूप रंग और सुन्दरता ही,

मेरी पहचान बताते है !

कंगन, चूड़ी, बिंदी, मेंहदी,

सुहागन मुझे बनाते है !

पित के सुख को सुख समझा,

पित के दुख में दुखी थी मैं !

जीवन के इस तन्हा पथ पर,

पति के संग चली थी मैं !

पति को मेने दीपक समझा,

उसकी लौ में जली थी मैं !

माता-पिता का साथ छोड,

उसके रंग में ढली थी मैं !


पर वो निकला सौदागर,

लगा दिया मेरा भी मोल !

दौलत और दहेज़ की खातिर,

पिला दिया जल में विष घोल !

दुनिया रुपी इस उपवन में,

छोटी सी एक कली थी मैं !

जिस को माली समझा,

उसी के द्वारा छली थी मैं !

इश्वर से अब न्याय मांगने,

शव शैय्या पर पड़ी हूँ मैं !

दहेज़ की लोभी इस संसार मैं,

दहेज़ की भेंट छड़ी हूँ में !

दहेज़ की भेंट चढ़ी हूँ मैं !!

..................... 

Saturday, April 23, 2016

VAKALATNAMA


IN THE HIGH COURT OF JUDICATURE
AT PATNA
VAKALATNAMA FOR

NO.                             OF                               2016
                                                                             Appellant
                                                                             Petitioner
Versus
                                                                                 Respondent
                                                                                    Opposite Party
Know all men by those Presents by this Vakalatnama
I/we





Do hereby
Appoint the advocate noted below in the margin or any of them as my/our lawful Advocate in the above-mentioned case for appearing, conducting and arguing the same or depositing or withdrawing any money in connection therewith or putting in papers petition ,etc. on my/our behalf or filling or taking back any document or with drawing suit, appeal or application with permission to institute fresh suit etc. and make compromise and for referring the case for arbitration and for doing all acts that be necessary to be done in connection with said acts. I/WE, further say that any act done by my/our said Advocates or any one of them after accepting this Vakalatnama shall be considered of my/our true and lawful act and shall be binding on me/us.
Mr.
Mr.
Mr.
Mr.
Mr.
To the above effect, I/We execute this Vakalatnama
Dated                                      of                                             2016

  

Friday, April 22, 2016

Free and Compulsory Education. The provisions of Section 12 (1) (c) must be enforced by the State without distinction between the urban and rural....

HIGH COURT OF JUDICATURE AT ALLAHABAD 



Chief Justice's Court AFR

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 3334 of 2016

Petitioner :- Ajay Kumar Patel
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Adarsh Bhushan,Arpan Srivastava
Counsel for Respondent :- C.S.C.,Nisheeth Yadav

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

(Per : Dr D Y Chandrachud, CJ) 


These proceedings which have been instituted in the public interest raise a seminal issue in regard to the
www.legalfreedom.in
implementation of the provisions of the Right of Children to Free and Compulsory Education Act, 20091 in relation to students belonging to the economically weaker sections. The submission of the petitioner is that the salutary mandate of Section 12 (1) (c) of admitting at least twenty-five percent students from children belonging to the weaker sections and disadvantaged group in the neighborhood has been defeated by the State Government. The Act was enacted to provide for free and compulsory education to all children of the ages of six to fourteen years. The object of the Act is to implement Article 21 A of the Constitution which provides for free and compulsory education to children between the ages of six to fourteen years. This is a fundamental right guaranteed by Part-III of the Constitution and is to be implemented in such manner as the State may by law determine. 

The expression "school" is defined in Section 2 (n) as follows : 
"school" means any recognised school imparting elementary education and includes- 
(i) a school established, owned or controlled by the appropriate Government or a local authority; 
(ii) an aided school receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority; 
(iii) a school belonging to specified category; and 
(iv) an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority. 

Section 3 (1) provides for the right to free and compulsory education in a neighborhood school to every child between the ages of six to fourteen till the completion of his or her elementary education. Elementary education is defined in Section 2 (f) to mean education from first class to eighth class. Among the mandatory duties of the appropriate government under Section 8 and of the local authorities under Section 9 is to provide free and compulsory elementary education to every child and to ensure the availability of a neighborhood school as specified in Section 6. Under Section 6, the appropriate Government and local authority are required to establish within such area or limits of a neighborhood, as may be prescribed, a school, where it is not so established within a period of three years from the commencement of the Act. Under Section 8 (c) and Section 9 (c), the appropriate Government and the local authority are obligated to ensure that a child belonging to the weaker section and a child belonging to a disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds. The local authority is required under Section 9 (d) to maintain records of children up to the age of fourteen years residing within its jurisdiction, in such manner as may be prescribed and under Clause (e) to ensure and monitor admission, attendance and completion of elementary education by every child residing within its jurisdiction. Section 12 forms a part of Chapter IV which deals with the responsibility of schools and teachers. 
Section 12 (1) (c) provides as follows : 

"specified in sub-clauses (iii) and (iv) of clause (n) of section 2 shall admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighborhood and provide free and compulsory elementary education till its completion: 
Provided further that where a school specified in clause (n) of section 2 imparts pre-school education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school education." 
The expression 'child belonging to disadvantaged group' is defined in Section 2 (d) as follows : 
"child belonging to disadvantaged group" means a child with disability or a child belonging to the Scheduled Caste, the Scheduled Tribe, the socially and educationally backward class or such other group having disadvantage owing to social, cultural, economical, geographical, linguistic, gender or such other factor, as may be specified by the appropriate Government, by notification." 

The expression 'child belonging to weaker section' is defined in Section 2 (e) as follows : 

"child belonging to weaker section" means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification." 

The rule making power is conferred upon the appropriate Government in Section 38. The expression appropriate Government is defined in Section 2 (a) to mean the Central Government in relation to a school established, owned or controlled by the Central Government or the administrator of a Union Territory, having no legislature. Other than the above, the State Government is the appropriate Government in relation to a school established within the territory of the State. 
In exercise of the rule making power conferred by Section 38, the State Government has made the Uttar Pradesh Right of Children to Free and Compulsory Education Rules 20112, which were notified on 27 July 2011. 
Rule 4 (1) provides for the area or limit of a neighborhood and is in the following terms : 

"4 (1). The area or limit of neighborhood within which a school has to be established by the Committee authorized by the State Government shall be as under : 
a) in respect of children in classes I-V, a school shall be established in habitation which has no school within a distance of 1.0 Km. and has population of at least 300; 
b) in respect of children in classes VI-VIII, a school shall be established in habitation which has no school within a distance of 3.0 Km. and has population of at least 800." 

Rule 7 which deals with the admission of children belonging to the weaker sections and disadvantaged groups is in the following terms : 
"7 (1) The schools referred to in sub-clauses (iii) and (iv) of clause (a) of section 2 shall ensure that children admitted in pursuance of clause (c) to section 12 (1) shall not be segregated from the other children in the classrooms nor shall their classes be held at places and timings different from the classes held for the other children. 
(2) The schools referred to in sub-clauses (iii) and (iv) of clause (n) of section 2 shall ensure that children admitted in pursuance of clause (c) to section 12 (1) shall not be discriminated from the rest of the children in any manner pertaining to entitlements and facilities such as textbooks, library and Information, Communication and Technology (ICT) facilities, extra-curricular activities and sports. 
(3) The areas or limits of neighborhood specified in rule 4 (1) shall apply to admissions made in pursuance of clause (c) to section 12 (1): 
Provided that the school may, for the purposes of filling up the requisite percentage of seats for children referred to in clause (c) to section 12 (1), extend these limits with the prior approval of the State Government. 
(4) The local authority (Gram Panchayat/Nagar Nigam/Nagar Palika/Nagar Panchayat, as the case may be) shall maintain a name-wise list and record of all children belonging to weaker section and disadvantaged group, studying in private and specified category schools under its jurisdiction." 

Under Rule 8, provisions have been made for the grant of admission to children inter alia referred to in Section 12 (1) (c). Insofar is material, sub-rule (1) is in the following terms : 
"The process of admission of children referred to in clauses (b) and (c) of section 12 (1) shall be totally transparent. The detail of such children applying for admission shall be maintained by the school regularly, which shall include the name, address, sex, caste, date of birth of the child and the name, address, occupation and monthly income of father/mother/guardian, detail of whether child belongs to weaker section or disadvantaged group. Such information shall be made public through website. Out of the total applicants, all the children who applied for admission, but not admitted for whatsoever reason, shall be informed in writing with the reason thereof. It shall also be binding for the school to follow the process of admission prescribed by the State Government from time to time." 


The Government Order dated 20 June 2013 has been amended on 24 February 2016 in certain respects. 
In the writ petition, it has been stated that out of a total 56.53 lac enrollments of students for Class 1 in primary schools in the State of Uttar Pradesh, 6.37 lac enrollments representing a quota of 25% prescribed under Section 12 (1) (c) should have been filled up but as on 5 June 2015, only 2817 admissions were confirmed to have been granted under the said provision. 
The grievance of the petitioner, when the petition was entertained on 27 January 2016 was two fold. Firstly, it was submitted on the basis of the Government Orders dated 3 December 2012 and 6 January 2015 that the District Basic Education Officers have been directed that it is only where no seat is available in government schools or aided institutions that the provisions of Section 12 (1) (c) would apply. Secondly, it was submitted that as a result of an artificial distinction between the urban and rural wards, Section 12 (1) (c) is being applied only to urban wards with the result that the rural population is not obtaining the benefit of the provision. On both these aspects, this Court directed the Secretary, Basic Education to file a short counter affidavit. 
Accordingly, the Secretary, Basic Education has responded to the directions of this Court. The Secretary, Basic Education states that the submission of the petitioner that 25% of the seats in unaided private schools in Class 1, out of a total of 6.37 lac enrollment should be filled up from students from the specified groups is only a statistical calculation. In the view of the Secretary, Basic Education, this cannot be construed as a target. According to the counter affidavit, the provisions of Section 12 (1) (c) do not abrogate the responsibility of the appropriate Government as prescribed in Section 6. Dealing with the two specific issues which have been raised by the petitioner, the affidavit of the State clarifies that there is no distinction between the rural or urban areas in the relevant Government Orders. The relevant averments in the affidavit are as follows : 
"13. That considering the provision of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 and in the relevant Government orders there is no distinction in the Rural or Urban Areas. In so far as the office order dated 06.01.2015 issued by the Director of Education Basic is concerned it does not restrict the admissions of children belonging to the disadvantaged group and weaker section in the neighborhood schools to urban areas only, but considering the unavailability of space for establishing new government schools or non-availability of schools run by the Basic Education Board the District Basic Education Officers were given directions that in the urban wards in which the schools run by the Basic Education Board are not available the students/ children belonging to the weaker section and disadvantaged group be given admission in the unaided private schools.... It is submitted that the Government Order dated 3.12.2012 does not make any distinction between rural and urban areas for coverage of the said act." 

The first issue which falls for consideration relates to the interpretation of the provisions of Section 12 (1) (c). Section 12 defines the nature of the responsibility of a school to provide for free and compulsory education. Section 12 (1) (c) covers schools belonging to specified categories and unaided schools not receiving any grant or aid to meet expenses from the Government or local authority. These schools have been obligated to admit to Class 1 to the extent at least 25% of the strength of that class, children belonging to weaker sections and disadvantaged groups in the neighborhood and to provide free and compulsory elementary education till its completion. The mandate of Section 12 is not conditional on the absence of schools established, owned or controlled by the appropriate Government or local authority or of aided schools. In other words, the obligation to admit students belonging to the weaker sections and from disadvantaged groups does not come into existence only upon the absence of seats in schools which are run by the State or local authority or by aided institutions. The obligation under Section 12 (1) (c) has not been made dependent on the non existence of State run schools or aided schools or the unavailability of seats in those schools. To read Section 12 (1) (c) in a contrary manner so as to import an obligation to admit students from the weaker sections and disadvantaged groups only where seats are not available in State run schools or aided institutions would be to defeat the object of the provisions. The Government Order dated 6 January 2015 reiterates the earlier Government Order dated 3 December 2012 by stipulating that it is only where the District Basic Education Officer has found that students belonging to weaker sections or disadvantaged groups are unable to obtain admissions to government schools or schools run by the Basic Shiksha Parishad and in aided institutions due to unavailability of seats that such students would be entitled to obtain admission against the 25% seats available in unaided institutions. This prescription creates a hierarchy in the availment of the benefits under Section 12 (1) (c) by stipulating that it is only in the absence of admissions being available in Government run schools or aided institutions that the obligation to admit students from disadvantaged groups or of weaker sections under Section 12 (1) (c) would arise. This interpretation and understanding of the State is clearly contrary to the provisions of Section 12 (1) (c). 
Moreover, it is evident that the rules which have been prescribed by the State Government under the rule making authority do not establish any such hierarchy as indeed the rules could not have done in violation of the provisions of the parent enactment. Consequently, we find merit in the first submission which has been urged on behalf of the petitioner that laying down a hierarchy or condition for the availment of the benefits under Section 12 (1)(c) by restricting them only to a situation where admissions in schools which are conducted by the Government or in aided institutions are not available, would be contrary to the plain mandate of Section 12 (1) (c). Such a policy cannot be laid down by the State Government in violation of the provisions of the Act of Parliament and would be ultra vires. The plain effect of the policy would be to mandate that a child belonging to the weaker section or disadvantaged groups cannot aspire for admission to an unaided institution under Section 12 (1) (c) so long as admissions are available in State run schools or in aided institutions. This is impermissible. It is a matter of common knowledge that the facilities which are provided in unaided institutions are superior to those in government institutions and aided institutions though may be with certain exceptions. The whole object and purpose of Section 12 (1) (c) was to provide for an assimilation of students belonging to the weaker sections and disadvantaged groups into the main stream of education by allowing them access to facilities and means of learning provided in unaided institutions. Unfortunately, as a result of the policy which has been framed by the State Government to which we have made a reference earlier, this object has been negated by depriving the most deserving of students from the grant of benefits which have been provided by the legislation enacted by Parliament in implementation of the fundamental right to free and compulsory education between the ages 6 and 14. 
On the second aspect of the matter, we are equally of the view that it would be impermissible for the State
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Government to postulate, as a matter of policy, that the provisions of Section 12 (1) (c) will be applicable only to the urban as distinct from rural areas. Neither the Act nor the Rules make any such distinction. There can be no plausible justification whatsoever to restrict the ambit of the provisions made under Section 12 (1) (c) to the urban areas by depriving the rural population access to better education facilities in primary education. The Secretary, Basic Education has in his counter affidavit clarified that there is no distinction as such between rural and urban areas but, considering the unavailability of space for establishing new Government schools or non availability of schools run by the Basic Education Board, the District Basic Education Officers were given directions that in the urban wards in which the schools run by the Board are not available, students/children belonging to the weaker sections or disadvantaged groups be given admissions in unaided private institutions. If the aforesaid formulation of the State Government is intended to be inclusive by emphasizing the need to grant admissions to the groups covered by Section 12 (1) (c), there can be no objection. However, this formulation cannot be read in an exclusionary manner so as to confine the benefits of Section 12 (1) (c) only to students who are pursuing education in urban areas as distinct from rural areas. The provisions of Section 12 (1) (c) must be enforced by the State without distinction between the urban and rural areas. 

During the course of hearing, one aspect which has emerged before the Court is the failure of the Principal Secretary, Basic Education to deal specifically with the number of admissions granted across the State under Section 12 (1) (c). Apart from controverting the statement made by the petitioner, by submitting that Section 12 (1) (c) is not a target, no specific disclosure of statistics has been made before the Court. The State Government shall ensure that the provision is implemented in letter and spirit in the State of Uttar Pradesh from the coming academic session. The State shall do so in accordance with the basic interpretative principles that must govern the implementation of Section 12 (1) (c) in the State as enunciated in this judgment. The State shall now revisit its earlier formulations so as to bring them in conformity with the mandate of Section 12 (1) (c) as interpreted in the present judgment of this Court no later than within a period of two months from the date of receipt of a certified copy of this order. 
The writ petition is, accordingly, disposed of. There shall be no order as to costs. 
Order Date :- 1.3.2016 
RK 
(Yashwant Varma, J) (Dr D Y Chandrachud, CJ) 

Correction of date of birth;...at the time of his entry into the Government service shall be deemed to be his correct date of birth for all purposes..


HIGH COURT OF JUDICATURE AT ALLAHABAD 

Chief Justice's Court AFR

Case :- SPECIAL APPEAL DEFECTIVE No. - 160 of 2016

Appellant :- State Of U.P. And 3 Ors.
Respondent :- Tej Ram Kashyap
Counsel for Appellant :- Vivek Shandilya
Counsel for Respondent :- Abhay Raj Singh

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
(Per : Dr D Y Chandrachud, CJ) 


This special appeal has arisen from a judgment and order of the learned Single Judge dated 2 December 2015. The learned Single Judge has allowed the writ petition filed by the respondent and has directed the correction of his date of birth in the service record of the Irrigation Department of the State Government as 15 February 1959 in place of 15 February 1956. 
The learned Single Judge has allowed the writ petition at the stage of preliminary hearing, without calling for a counter affidavit from the State on the basis that in view of the "undisputed facts and the documents on record" the petition would be decided without the defence of the State being placed on the record. 
The respondent was appointed as a helper in the Irrigation Department on 1 November 1978. The application submitted by the respondent for appointment indicates that he was 22 years of age and had failed at the High School examination. The age of the respondent was entered in his service book as 15 February 1956. The date of entry in the service book is 17 February 1984 and bears the thumb impression of the respondent together with his signature. On 22 June 2004, the respondent submitted an application to the effect that his date of birth has been wrongly recorded as 15 February 1956 instead and in place of 15 February 1959. In support thereof, the respondent relied upon a certificate issued by the Principal of the Rajkiya Inter College, Bareilly dated 29 March 1990 indicating that the date of birth of the respondent in the records of the institution is 15 February 1959. The certificate indicates that the respondent had appeared at the High School examination in 1978 which he cleared but the institution has still not received the High School certificate from the Secondary Education Board. 
The learned Single Judge while allowing the writ petition has relied upon the circumstance that the identity card of the respondent issued by the Irrigation Department mentions his date of birth as 15 February 1959 and that the High School certificate which was produced by the respondent before the Court indicated the date of birth as relied upon by the respondent. 
The learned standing counsel has urged that at the time of preparation of the service book, the respondent had duly signed the entry which indicated that his date of birth was recorded as 15 February 1956. The learned Single Judge rejected the submission by holding that the respondent is still in service and has been agitating his claim for correction of his date of birth since 2004. For these reasons, the learned Single Judge allowed the writ petition and directed the correction of the date of birth from 15 February 1956 to 15 February 1959. 
At the outset it would be material to refer to the provisions of the U.P. Recruitment to Services (Determination of Date of Birth) Rules, 19741. 
Rule 2 provides as follows: 
"2[2. Determination of correct date of birth or age. -The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation to his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever.]" 

Rule 2 indicates that the date of birth which has been recorded in the High School certificate or in respect of an equivalent examination, shall be deemed to be the correct date of birth for all purposes in relation to his service. Where a government servant has not passed the High School or equivalent examination as aforesaid, the date of birth or age recorded in the service book at the time of his entry into government service, shall be deemed to be the correct date of birth. Rule 2 further provides that where a Government servant has passed the High School examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation to his service. 
In the present case, the application submitted by the respondent when he entered upon service indicates that he had disclosed his age to be as 22 years and that he had failed in the High School examination 'High School Anuttirna'. The respondent joined services on 1 November 1978. The case of the respondent himself is that he had initially failed in the High School examination and that he appeared in the supplementary examination which he cleared. Now, when the respondent submitted an application on 22 June 2004, the first thing that needs to be noticed is that it was addressed to the competent authority in the Irrigation Department nearly twenty six years after he had joined the service. 
In the meantime, as we have noted, the service book of the respondent reflected his date of birth as 15 February 1956 and it bears both the signature and thumb imprint of the respondent. Hence, the respondent was aware of the fact that his date of birth has been entered as 15 February 1956. This also tallies with his disclosure in his application seeking employment which indicates that his age was 22 years in 1978. This application, it may be noted, was in terms of the form prescribed under the standing orders applicable under the Industrial Employment (Standing Orders) Act. Even when the respondent submitted his application for correction of the date of birth on 22 June 2004, he relied upon a certificate of the Principal of the Inter College dated 29 March 1990 which, while stating that the respondent had passed the High School examination in 1978 and that his date of birth in the records of the institution was 15 February 1959, stated that the institution had not received a copy of the High School certificate from the Secondary Education Department. 
The case can be considered from either of two stand points. Firstly, as a general principle, it is well settled that an application for correction of the date of birth in the service record, made belatedly and a long time after the employee had entered into service, should not be entertained. This principle must apply to the facts of the present case, where as we have noted, the respondent himself declared his age as 22 years when he sought employment in 1978 and his service book was completed in 1984, duly endorsed by the respondent indicating that his date of birth was 15 February 1956. Twenty six years thereafter, the respondent sought correction of his date of birth. His submission that he had submitted his High School certificate when he joined service is clearly belied by his own statement made in his application for employment that he failed in the High School examination at that stage. Equally significant in the present case, is the principle which is contained in Rule 2 of the statutory rules which have been framed in exercise of powers conferred by Article 309 of the Constitution. Rule 2 provides that in the first instance a date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service shall be deemed to be his correct date of birth for all purposes in relation to service. Where a Government servant has not passed the High School examination or an equivalent examination, the date of birth or age recorded in the service book at the time of entry in the service is to be taken for all purposes as the correct date of birth. Rule 2 also provides that in a situation where an employee has passed the High School examination after joining the service, the date of birth entered at the time of his entry in service or age recorded in the service book at the time of his entry into Government service shall be treated as the correct date of birth. 
In this background, both on facts as we have indicated and having due regard to the provisions of law noted above, the learned Single Judge was manifestly in error in entertaining the writ petition and in directing the grant of relief for correction in the date of birth of the respondent from 15 February 1956 to 15 February 1959. The writ petition ought not to have been entertained in the first phase having been filed in 2015, for seeking correction in the date of birth. When the writ petition was filed, the respondent was virtually on the eve of his retirement. A long time after the respondent had entered into service, a correction in the date of birth in the service record ought not to have been entertained. 
We, accordingly, allow the special appeal and set aside the impugned order and judgment of the learned Single Judge dated 2 December 2015. In consequence, the writ petition filed by the respondent shall stand dismissed. 
There shall be no order as to costs. 
Order Date :- 29.2.2016
RK
(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)


C.M. Delay Condonation Application No.51714 of 2016
Case :- SPECIAL APPEAL DEFECTIVE No. - 160 of 2016
***
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.

The delay of forty four days in filing the special appeal is condoned since sufficient case has been shown in the affidavit filed in support of the delay condonation application.
The application is, accordingly, disposed of.
Order Date :- 29.2.2016
RK
(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)