Tag: #MumbaiHighCourt

-Report by Arunima Jain

The Mumbai High Court on Friday upheld that any individual representing an agricultureconstituency whilst running for candidature must understand the meaning of being a memberof the committee. If the person’s primary source of income is not from agricultural processes,or if the person holds a trader’s/ commission agent’s or broker’s license, or even if the personhas a future interest in obtaining such a licence, then the person would automatically bedenied the right to partake in the elections for the same. A representative of a “firm” who votes in the APMC election does not have a stake in the “firm’s” operations because he is that “firm’s” representative.

FACTS

For the matter at hand, the facts pertain to the election for the Agriculture Produce MarketCommittee. In the constituency of agricultural credit societies and multipurpose cooperativesocieties in the APMC, Parola, the petitioner submitted his candidature in the OBC categoryand in the Open category. In the present case, the petitioner is a member of Parola Taluka

Cooperative Fruit Society. This society is registered to vote in the merchant’s constituencyand has a trader’s licence. The problem that arose was that according to Rule 10(2)(ii) of theMaharashtra Agricultural Produce Market Committee (Election to Committee) Rules, 2017,an individual associated with a trading licence is ineligible to run for office in an agriculturalseat. In furtherance of the same, several objections and appeals were raised which disqualified the petitioner from participating in the elections. The petitioner has accordinglyfiled a writ petition to clarify the matter once and for all.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the petitioner is notdisqualified under Rule 10(2)(ii) of the Election Rules 2017 since he serves as a ParolaTaluka Cooperative Fruit Sale Society representative and does not have an individual license.According to the learned counsel, the petitioner cannot be declared ineligible under Rule10(2)(ii) of the Election Rules 2017 since they represent a society with a trader’s license.

JUDGEMENT

Upon giving due regard to the facts and the law in the above-mentioned case, it is contended by the Bombay High Court that it is patently illegal to have passed the orders as have beenpassed by the preceding authorities. The Hon’ble Court held that the petitioner was not disqualified from running for the elections, and thereby, the election authority has beeninstructed to include the name of the petitioner in the final list of nominated candidates. Moreover, as the inclusion of the petitioner’s name in the list of nominated candidates would not affect the election process at this stage, there was no harm in the same. the writ petition was therefore allowed.

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-Report by Utkarsh Kamal

In this case, we are going to discuss the rights of the prisoners, and also as the fundamental right ( right to privacy) of a prisoner and the right to live with dignity, in this case, the prisoner is an accused and he asked to be nude in front of the prison official while there are electronic gadgets available to check him whether he has anything under his clothes or not but still the prison officials asked him to be nude so they can check him. when the accused took this to the  Court where the court held that it was a clear violation of his rights.

FACTS:

An application had been submitted to the judge by Ahmed Kamal Shaikh, one of the defendants in the 1993 Bombay bombings case. The 1993 Bombay bombings trial is currently in its third round. The accused had stated that every time he is brought before the court and hauled back to jail, he is strip-searched at the jail’s entrance, which is humiliating and against his rights, in the motion submitted through counsel Farhana Shah. Shaikh asserted that he had objected to it, but the jail staff began abusing, humiliating, and threatening him with unparliamentary words. He approached the court in distress.

ISSUE:

Whether misbehaving with an accused person in jail is a violation of his rights or not. 

RELATED LAWS:

Article 21: Protection of life and personal liberty, no person shall be deprived of his liberty except according to the procedures established by law. 

This article also includes the right to privacy as well as the right to live life with dignity.

APPELLANT’S CONTENTION:

The applicant/accused Ahmed Kamal Shaikh is upset because after appearing before the court, he is returned to jail. He is made naked in front of other prisoners and staff members while being searched by the searching guard at the entry, which is humiliating and a violation of his right to privacy. When he objected to the same, the concerned searchers misbehaved with him, used unparliamentary words towards him, and humiliated him in front of other people. Threats were made to him as well as detainees. Therefore, he asks for instructions from the Superintendent or Jail Authorities not to misbehave, embarrass him, or speak to him in an offensive manner. He also asks for guidance on how to conduct his own search using a scanner or other technical devices.

Respondent contention: The superintendent of Mumbai Central Prison informed the court that the accused had not received any such degrading treatment. The superintendent contended that the current “false” application was only submitted to put pressure on the jail administration. Hence the court should reject the application.

Judgment: The claims made by the accused had some merit, according to the special judge. When conducting personal searches, the judge instructed the prisons’ superintendent and search guards to employ scanners and electronic tools. The judge further stated that the officers are not obligated to act inappropriately, humiliate the accused, use profane language, or strip them naked if such devices are not accessible and a physical search must be undertaken. The Court further highlighted that in addition to the current applicant, several prisoners who were awaiting trial had come before it with comparable grievances. The same judge had instructed the superintendent and search guards of Arthur Road Jail in February of this year after an accused

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-Report by Arunima Jain

The Mumbai High Court on Thursday upheld the Maharashtra Administrative Tribunal’s judgement that is related to the reinstatement and absorption in service of a wrongly terminated woman for the post of lecturer. The court has supported the judgement in the case of Sachin Dawale v. The State of Maharashtra while stating that ‘adherence to the rule of equality in public employment is a fundamental feature of our Constitution, and because the rule of law is at the heart of our Constitution, a Court would be barred from upholding a violation of Article 14 or ordering the disregard of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Moreover, unless the appointment of a government servant is made in accordance with the relevant rules and following proper competition among qualified candidates, the appointee will not have any rights. It is not open to the court to prevent regular recruitment in the case of temporary employees whose period of employment has expired or ad hoc employees who, by definition, do not have any rights.’

FACTS

In the matter at hand, the State had imposed a ban on the recruitment of various departments in the educational sector. Upon upliftment of the ban, through a policy decision in July 2002, the respondent was instituted as a Lecturer on a contract basis for a period of two years or till

the availability of an MPSC-selected candidate, whichever was earlier. By subsequent government policies and resolutions after the completion of the two years of the contractual agreement, the respondent was reinstated as a Lecturer in a different university till October 2012. In lieu of an administrative ground against vacancy generated by contract lecturer transfer, the respondent’s employment was terminated in September 2012 before the end of her tenure. After the passing of the judgement in the case of Sachin Dawale v. The State of Maharashtra, the respondent filed an application challenging her termination before the Tribunal. The Tribunal directed reinstatement and absorption back into the service of the respondent as a Lecturer in the Government Polytechnic. The State Government has filed this case in order to challenge the Tribunal’s judgement and order.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the Tribunal should not have entertained the original application owing to the fact that the respondent had accepted the termination of her services as a lecturer without a predicament, as and when it occurred. Moreover, the original application that challenged the termination was sought after 4 years of the respondent being relieved of her duties. The counsel for the respondent further stated that during the initial contract, it was made clear to the respondent that according to the law at the time, the contractual agreement existed till the specified date or till the availability of an MPSC-selected candidate. Since the termination was in lieu of the selection of an MPSC-selected candidate, the respondent was rightly relieved of her duties. Therefore, according to the petitioner’s counsel, the current contentions of the respondent are absurd and cannot be relied upon.

Respondent

Contrary to the petitioner’s counsel, the respondent’s learned counsel submits that all contractual lecturers instituted in service along with the respondent have been regularized in their jobs, with just the exception of the respondent. On top of that, the candidate employed in replacement of the respondent was not an MPSC-selected candidate, but a transferee to the Government Polytechnic. In addition, it is submitted that the job vacancy created through the transfer did not require the termination of the respondent’s post. As far as the limitation act condones the delay in filing the Original Application, the respondent’s counsel contends that the Court shall be awry in interfering with the interpretation of the Tribunal in the same regard.

JUDGEMENT

Upon giving due regard to the facts and law in the above-mentioned case, it is contended by the hon’ble court that this was a proper instance in which the Tribunal should have excused the delay in filing the application and the appellants should have been awarded relief in the same terms as the Full Bench of the Tribunal. As a result, the appeal is granted, the contested Tribunal judgement is reversed, the delay in filing the order is excused, and the application is granted. The Tribunal made no mistakes in overturning the order freeing the respondent from service or directing her regularisation.

Because of the unique facts and circumstances of the current case, the bench has also mentioned that it is inclined to maintain the Tribunal’s ruling directing the Respondent’s regularisation. As a result, no errors were detected in the Tribunal’s judgement and order. It was further directed to the petitioner to comply with the Tribunal’s instructions. The writ petition filed was thereby dismissed.

READ FULL JUDGEMENT: https://bit.ly/40T1C1H