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वृहद पीठ ने मुख्य न्यायाधीश की मनमर्जी पर रोक लगायी

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bykgkckn mPp U;k;ky; dh ikap lnL;h; ¼ek- U;k;ewfrZ ,y-ds- egkik=k] U;k;ewfrZ lquhy vEcokuh] U;k;ewfrZ ,-ih- 'kkgh] U;k;ewfrZ Hkkjrh lizw] U;k;ewfrZ eukst feJk½ o`gn ihB us prqFkZ Js.kh deZpkfj;ksa ,oa Mªkbojksa dh fu;qfDr ,oa fofu;ferhdj.k ds lsok laca/kh ekeys esa tufgr ;kfpdk Lohdkj djrs gq, eq[; U;k;k/kh'k dks lafo/kku ds }kjk vuqPNsn 229 esa nh x;h 'kfDr;ksa dks O;k[;kf;r djrs gq, mudh euethZ ij vadq'k yxkrs gq, vo/kkfjr dj fn;k gS fd eq[; U;k;k/kh'k euekus rkSj ij budks fu;qDr ,oa fofu;fer ugha dj ldrsA eq[; U;k;k/kh'k dks fu;qDr djus dk vf/kdkj lafo/kku ds vuqPNsn 14 o 16 lifBr bykgkckn mPp U;k;ky; vf/kdkjh ,oa deZpkjh ¼daMh'ku vkWQ lfoZl ,aM daMDV½ fu;e 1976 ,oa bykgkckn mPp U;k;ky; LVkQ dkj MªkbolZ ¼d.Mh'ku vkWQ lfoZl ,aM d.MDV½ fu;e 2000 ds v/khu gksxkA

Kkr gks fd 2004 esa prqFkZ Js.kh deZpkfj;ksa ,oa pkydksa dh fu;qfDr;ka rRdkyhu dk;Zokgd eq[; U;k;k/kh'k us vkuu&Qkuu esa fcuk foKkiu izdkf'kr djk;s fu;eksa dks njfdukj djrs gq, dj nh Fkh ftl ij nks U;k;ewfrZ;ksa dh ihB us tufgr ;kfpdk ds :i esa Lor% laKku ysdj 17-12-2004 dks vkns'k ikfjr fd;kA

“It has been brought to our notice that 355 posts of class IV employees have been sanctioned by the State Government on 10.12.2004 and the process of regularisation of casual labourers, daily wage employees and daily wage drivers has been completed within 3 days. It has also been brought to our notice that out of 355 posts, 192 posts have been earmarked for Lucknow Bench. It is surprising that about 19 Judges hold court at Lucknow and about 56 Judges are at Allahabad, but the number of daily wage class IV employees is alarmingly very high at Lucknow than at Allahabad. It is not known how these persons have been recruited and appointed as daily wagers etc. and who was responsible for their recruitment. We have also been informed that 7 daily wage class IV employees at Allahabad have not been regularized on the ground that they are over age. In the past the persons engaged as daily wagers, who were appointed by the Judges, have been regularized even though they were over age. It is also surprising that these seven daily wagers have not been regularized. Further in the cadre of drivers also we notice that only 7 drivers are being regularized at Allahabad whereas 16 drivers are being regularized at Lucknow Bench.

We have also been informed that persons have been appointed on class-III posts though no employee could be appointed on ad hoc basis without there being any written examination. It has also come to our notice that there is also mal-practice in the allotment of quarters to class IV employees working in the High Court, which is being allotted out of turn without considering the seniority of employees. Even daily wagers had been allotted quarters.

We have taken suo moto cognizance of the matter in public interest and the registry is directed to allot a number to this case. We called for the Registrar General of this Court, but we were informed by Sri G.K. Chaturvedi, Registrar (Budget) that he had already proceeded to Lucknow.

The Registrar General and Registrar, Lucknow Bench, are directed to place the entire records of Allahabad as well as of the Lucknow Bench of all daily wagers, casual labourers and class III ad hoc employees, as directed  above, before us on 20.12.2004.

Considering the entire facts and circumstances narrated above, until further orders of this Court, regularization of 355 class IV employees viz. Casual labourers, daily labourers and daily wage drivers made by the High Court pursuant to sanction of 355 posts by order of the State Government dated 10.12.2004 shall remain stayed. Till this matter is decided, no appointment of daily wage employees or casual labourers shall be made.

Sri G.K. Chaturvedi, Registrar (B) is directed to inform the order passed by us to the Registrar General today. The Registrar General shall also bring this order to the notice of Hon'ble the Acting Chief Justice.

Sd/- Hon. V.M. Sahai, J
Sd/- Hon. Tarun Agarwala, J
Dt. 17.12.04”

mDr vkns'k ds dk;Zokgd eq[; U;k;k/kh'k ds laKku esa vkus ij mUgksaus 18-12-2004 dks ,d iz'kklfud vkns'k ikfjr djrs gq, fy[kk& “O R D E R

(In Re: Regularisation of Class IV employees of High Court)

“I have perused the order dated 17.12.2004 passed by a Division Bench of this Court comprising of Hon. V.M. Sahai and Hon. Tarun Agrawala, JJ, which as directed by the said Bench was placed before me by the Registrar General of the Court.

A perusal of the said order would show that the Division Bench has directed the Registrar General and the Registrar, Lucknow Bench, Lucknow, to place the entire records of Allahabad and Lucknow of all daily wagers, casual labourers and class-III ad-hoc employees before them on 20.12.2004. .......

In the circumstances, I withdraw the case (in Re: Regularisation of class IV employees of High Court) from the Division Bench of Hon. V.M. Sahai and Hon. Tarun Agrawala, JJ. Considering the importance of the matter and the issues raised in the order dated 17.12.2004 passed by the said Bench including the jurisdiction of a Division Bench of the High Court of suo motu taking cognizance as a Public Interest Litigation, I assign it to a larger Bench comprising of:- (1) Hon. S.R. Alam, J (2) Hon. Pradeep Kant, J (3) Hon. U.K. Dhaon, J (4) Hon. Sushil Harkauli J and (5) Hon. Khem Karan, J.

The larger Bench shall hear the case on 20.12.2004, at 10.00 a.m., at Allahabad. The relevant records stipulated in the order dated 17.12.2004 shall be produced by the Registrar General and the Registrar, Lucknow Bench, Lucknow before it.”

fnukad 20-04-2004 dks dk;Zokgd eq[; U;k;k/kh'k }kjk xfBr o`gn ihB us vkns'k ikfjr fd;k&“We have heard Sri Sudhir Agarwal, learned Additional Advocate General, who has appeared on behalf of the High Court. We have also perused the order of the learned Division Bench dated 17th December, 2004.

Having considered the questions involved and the issues raised in the order of the Division Bench under reference, we are of the view that no interim order was required to be passed by the learned Division Bench. We, therefore, discharge and vacate the interim order dated 17th December, 2004 passed by the Division Bench. It is, accordingly, provided that the process for regularisation/regular appointment/absorption of Class-IV Employees may be completed which would be subject to the final orders of this case.

Sri Agarwal, learned Additional Advocate General appearing for the Allahabad High Court may file detailed report. The question regarding maintainability of the writ petition and taking suo moto cognizance in the facts and circumstances of the case as appears from the order of the learned Division Bench shall also be considered on the next date.

List the matter on 21.1.2005.”

o`gn ihB ds bl vkns'k ds ckn ;g dsl yxHkx lkr o"kksZa rd cLrk [kkeks'kh eas Mky fn;k x;k vkSj bldh vkM esa le;≤ ij fu;qfDr;ka ,oa fofu;ferhdj.k cnLrwj tkjh jgkA yxHkx 8 o"kksZa ckn ihB ds iquZxBu ds mijkUr eSVj ds 14-05-2012 dks lquokbZ ds fy, lwphc) gksus ij mPp U;k;ky; ds vf/koDrk us 20-12-2004 ds vkns'k ds vuqikyu ds laca/k esa fjiksVZ izLrqr djus ds fy, le; ekaxk rFkk ckn esa 20-12-2004 ,oa 14-05-12 ds vkns'k ds vuqikyu esa fjiksVZ izLrqr dhA

izLrqr 'kiFk i=ksa ,oa fjiksVZ ij xkSj djus ds ckn o`gn ihB us fy[kk& "...From the facts on record as contained in the reports and affidavits that we have traversed; it would not be unsafe to assume that there had been no honest attempt to diagnose the infirmities that have seeped into the system primarily on account of non-observance of the statutory rules namely the 1976 and 2000 Rules referred to hereinabove. They have been observed partially but mostly there has been a breach thereof. The fact of non-observance of the rules is admitted in para 13 of the affidavit dated 16.8.2012 which has been extracted and dealt with hereinafter.

There does not appear to be any serious exercise having been undertaken prior to these proceedings by the High Court in the past two decades for laying down a blue print to define the requirement of the infrastructural Class IV staff for catering to the various requirements of the High Court. The staffing pattern and the structure, department wise, that may indicate the actual or approximate requirement, does not appear to have been investigated or analysed. Daily Labourers and Casual Labourers have been conveniently introduced followed by attempts to regularize them under the powers of Hon'ble the Chief Justice enshrined under Article 229 of the Constitution of India.

Appointments have been made against Class IV posts as and when the necessity arose or as and when the powers were invoked under Article 229 or under the residuary powers and extraordinary powers preserved with Hon'ble the Chief Justice under Rule 41 and Rule 45 of the 1976 Rules. A similar position emerges in relation to the drivers under the 2000 Rules where also the same provisions exist. Orders were passed by Hon'ble the Chief Justice either himself or even at times on the recommendations of Hon'ble Judges. Regular appointments through such methods became a routine.

The State Government has been sanctioning posts from time to time that have been filled up by the High Court to meet various exigencies. The procedure however adopted indicates an improper method of discretion being exercised when the rules specify a particular mode to be adopted. It is these disturbing facts that led to the suo motu cognizance of this matter by the Division Bench that was referred to be heard like a public interest litigation."

mPp U;k;ky; us bl dsl esa ,d vkSj egRoiw.kZ fcUnq fu.khZr djrs gq, lsok ekeyksa esa tufgr ;kfpdk dh iks"k.kh;rk dks vo/kkfrjr djrs gq, dgk& ....."The cognizance of a public interest litigation can be taken if the initiation is pro bono publico. The issue involved relates to public employment on the establishment of one of the organs of the State namely the Judiciary. The powers, in so far as the High Court is concerned, for controlling the service conditions of its employees vests in the Chief Justice of the High Court as per Article 229 of the Constitution of India. The power therefore has to be exercised in the interest of the institution and for its smooth running. There cannot be any doubt that the employment of Class IV employees in the High Court therefore falls within the definition of public employment. Such employment therefore has to be made under Rules and under Orders of the competent authority. The question of exercise of such powers in public interest and in the larger interest of the institution is what with which this reference is concerned.

The present case is not one of adversarial litigation. It is to streamline the use of the powers conferred under the Constitution, and the rules framed thereunder. The reference has been made to rectify a genuine wrong that has crept into the system and therefore a public interest litigation is the right method that can be utilized in order to establish transparency and credibility of the institution.

We are aware that in service matters public interest litigations are rarely admissible and the guidelines that have been framed for dealing with public interest litigation have been laid down from time to time. In the instant case it is no citizen of this country who has come up before the court and who has to satisfy us about his locus-standi. Here the High Court on the judicial side itself has taken cognizance for redeeming its past and setting its own house in order. It is not the bonafides of any individual that are to be tested but it is the cause of the High Court itself that has been noticed by the Judges for resolving an intricate problem relating to the workforce of the High Court. Public interest in the present matter has to be viewed from the angle of a public image namely the interest of an average citizen."

mPp U;k;ky; ds lsok lacaf/kr ekeyksa esa eq[; U;k;k/kh'k dh 'kfDr;ksa ds ckjs esa ihB us dgk& "The Chief Justice of a High Court has the authority and his supremacy has been acknowledged in matters of employment on the Establishment of the High Court through several decisions of the apex court.

.....The question is, how is this power to be exercised, and the limitations if any. The exercise of powers cannot be unguided or unbridled. There is no authority under the Constitution, who has not been specified the extent of the powers conferred, hedged with its limitations. To our mind, the powers are subject to the limitations being exercised not beyond the purpose for which they have been conferred. The powers are to be exercised within the framework of the Constitution.

This being the position, the powers cannot be exercised in violation of the basic structure of the Constitution of India of which the chapter of fundamental rights is one of the limitations. The reason is that our country is a democracy that is governed by rule of law. It is the supremacy of law that is acknowledged in order to supervise the functioning of the governmental set up. The doctrine of separation of powers between the organs of the State and the doctrine of distribution of powers within the authorities under the Constitution are therefore subject to the rule of law. The apex court has time and again ruled that the absence  of arbitrariness is the essence of rule of law and therefore the powers have to be canalised and not unbridled, so as to breach the basic structure of the constitution, particularly the fundamental rights guaranteed under Part III of the Constitution of India.

It need not be pointed out by us that in matters of public employment what keeps on being discussed by courts, is the infringement of the fundamental rights guaranteed under Article 14 and 16 of the Constitution of India. Equality of opportunity in matters of employment being a constitutional mandate, has to be observed even if the powers are being exercised by the Chief Justice under Article 229 of the Constitution of India and the rules framed thereunder.

In our opinion howsoever supreme the authority of the Chief Justice may be, the same is subject to judicial scrutiny on the anvil of Fundamental Rights of Part III of the Constitution as well as the rules framed by the authority under the constitutional provisions. The unquestionable authority is always subject to the authority of the Constitution. The Chief Justice under Article 229 of the Constitution read with the rules framed thereunder does not act as an extra constitutional authority. To the contrary he derives his powers under the same constitution which guarantees the fundamental rights to the citizens of this country. We therefore are of the opinion that the exercise of such powers, with its limitations, is subject to judicial review on the abovementioned parameters. We are fortified in our view by the ratio of the decisions in the case of H.C. Puttaswamy and others Vs. The Hon'ble Chief Justice, Bangalore and others reported in 1991 Supp (2) SCC 421 and the latest Als je online speelt, zul je ontdekken dat er veel meer mogelijkheden zijn wat betreft het aantal en soorten spellen . decision of the apex court in the case of State of West Bengal and others Vs. Devasis Mukherji and others reported in 2011 JT (11) Pg. 1.

We have been reminded of the decisions in the case of High Court of Judicature for Rajasthan Vs. Ramesh Chandra Paliwal and another reported in 1998 (3) SCC 72, and it has been urged by the High Court that such powers cannot be questioned by any Judge or the number of Judges on the administrative side. The powers of the Chief Justice as culled out therein and then subsequently asserted more vehemently in the case of High Court of Judicature at Allahabad Vs. Diwakar Singh reported at the interim stage in 2010 (4) ADJ 584 and finally in 2010 (9) ADJ Pg. 292 and the division bench judgment in Special Appeal No. 563 of 2008 decided on 20th of September, 2011 Hon'ble High Court of Judicature at Allahabad through its Registrar Vs. Devendra Kumar Pandey and others [2011 (9) ADJ Pg. 385] have been heavily relied on. We are therefore under an obligation to answer the submission as to the impact of the same on the issues presently raised.

We have gone through these decisions as well as other decisions relied on, but at the same time it would be appropriate for us to point out that the issue that has been raised, and has come up for consideration before us, had already been visualized long back in the year 1993 when a learned single judge had issued directions for the regularisation of Class IV Daily and Casual Labourers against permanent posts that came up casino online for consideration in Special Appeal No. 269 of 1993 decided on 22.9.1993 State of U.P. Vs. Class IV Employees Association, High Court of Judicature at Allahabad reported in 1993 (3) U.P.L.B.E.C. Pg. 2083.

From the facts that have been set out in the various affidavits and the reports on record, we did not find any exercise worth the name in the present matter to have been undertaken by the High Court to sort out this problem of defining the structure of the staffing pattern of the High Court in correct perspective as visualized as far back as in 1993 in the aforesaid decision which however has now been attempted during the pendency of these proceedings on our insistence.

The High Court seems to be more concerned with the powers of the Chief Justice and its exercise thereof with its unquestionable discretion. We, having carefully examined the same, are unable to subscribe to the view of the high pedestal on which it has been placed, both in the decisions of the Full Bench in the case of High Court of Judicature Vs. Diwakar Singh (supra) and the division bench judgment in the case of Hon'ble High Court of Judicature Vs. Devendra Kumar Pandey (supra). The logic given in both judgments is palpably at odds with the purpose. To our mind it would be perilous to risk an interpretation on the parameters of absolute superior powers that would be fraught with danger, as it involves the management and administration of one of the main organs of governmental function, that too even of the most essential component of governance – the judiciary.

The reason is the supremacy of the rule of law – its paramount majesty in which the people of this country have reposed their faith while accepting the declaration in the opening words of the preamble 'We the people of India…...give to ourselves....”. The other reason is that this faith in the “sense of justice” and its administration, is founded on the obligation cast on this institution as the sole arbiter of laws, to apply the laws correctly and faithfully, so as to rest the logic of law on surer foundations. This creates responsibility on the High Court and its judges including the Chief Justice to administer the laws constitutionally on the judicial side and observe and obey the laws on the administrative side.

The principles governing public employment that flow constitutionally, including the protection of Article 14, have to be observed as held by the apex court in the decisions of Puttaswamy H.C. (supra) and State of West Bengal Vs. Debashish (supra). Thus the exclusive powers residually conferred on the Chief Justice are subject to constitutional controls under Chapter III thereof. It is this part that we wish to emphasize without intending in any way to diminish the authority and powers of the Chief Justice under Article 229 and the rules framed thereunder." ....

..... "Coming to the ratio of the judgment of the division bench in the case of Devendra Kumar Pandey (supra), a sweeping observation has been made that the Chief Justice is empowered under Article 229 (2) to make appointments as per rules and therefore the appointment cannot be illegal or irregular. This presumptive proposition has been culled out by placing reliance on the judgment of the apex court in the case of M. Gurumoorthy (supra). Further the bench has observed that if the Chief Justice has taken a decision to appoint some persons to serve the High Court, it can be presupposed that it has been consciously done for the benefit of the institution and faith is required to be reposed by all judges in the Chief Justice as he being the head of the institution is definitely worried about the necessity of appointments. It has been observed that if the Chief Justice is under a pressure of workload, he cannot be debarred from making appointments. According to the bench, it is absurd to believe that the Chief Justice would be swayed away by favouritism and any criticism should be avoided.

Having given our thoughtful considerations, but with due deference to the aforesaid observations of the full bench in Diwakar Singh's case and the division bench judgment in the case of High Court Vs. Devendra Kumar Pandey (supra), we are the least persuaded to approve the same. The pronouncement appears to be authoritative but it lacks the substance of consideration of Article 14 and Article 16 of the Constitution of India. Howsoever high a dignitary may be, once the power conferred is governed by the Constitution, the laws made thereunder and the rules framed, then the authority is bound to act within the rules and not ascribe to himself an authority to act beyond it or else the exercise of power will be a camouflage to act arbitrarily in the solemn name of discretion.

The higher the dignitary, the more objectivity is expected to be observed. This does not mean that the power should be curtailed, but at the same time it should be stretched only to the width of the constitutional and legal limits. The observance of law has to be calibrated – doing what you need to, no more no less. The presumption and the presupposition of the validity of orders on the administrative side are dependant on the alleged constitutional violation and its judicial scrutiny. They are not immune to law nor to judicial review. The residuary powers of the Chief Justice under Rule 8, Rule 41 and Rule 45 of the 1976 Rules and similar powers under the 2000 Rules are supposed to be exercised notwithstanding contained in the rules, but the same cannot be construed to mean notwithstanding the fundamental rights and obligations under the Constitution. Giving the interpretation as suggested by the said decisions would belittle the esteem of the office of the Chief Justice thereby reducing its respect.

We would like to clarify that the observations made by the Division Bench in the case of High Court of Judicature at Allahabad Vs. Devendra Kumar Pandey (supra) to the effect that Uma Devi's case has not touched the ratio of the decision of the Apex Court in the Constitution Bench judgment of M. Gurumoorthy (supra) is not correctly stated in the context of the Division Bench judgment, inasmuch as the decision in the case of M. Gurumoorthy only spells out the powers of the Chief Justice but the same does not in any way hold that the Chief Justice can exercise powers that may run-counter to Articles 14 and 16 of the Constitution while making appointments in the establishment of the High Court. Consequently, the case of Uma Devi (supra) is a decision on the limitations prescribed while making appointment against public posts in terms of Articles 14 and 16 of the Constitution of India. What Uma Devi's case has deprecated is back door appointment or appointment de-hors the Rules. The present is clearly a case which involves these issues and, therefore, the reliance by the learned Counsel for the High Court on the Division Bench judgement seeking to clarify the ratio of Uma Devi's case is misplaced.

The question relating to the rules for employment that are to be framed in respect of Class IV employees and drivers flow from the powers under Article 229 of the Constitution of India. The powers of the Chief Justice, and the judgements relating thereto, have already been noticed by us that indicate that the exercise of such powers are subject to the limitations of Article 14 and 16 of the Constitution of India."

mPp U;k;ky; }kjk fu;eksa ij fopkj djds fu;qfDr;ka djus ds ckjs esa Lo;a izfr mÙkj 'kiFki= esa Lohdkj djus ds ckjs esa rFkk foKkiu u izdkf'kr gksus ds ckjs esa ihB us dgk& ...."To our mind, the said rules, if put to test on the anvil of Articles 14 and 16, run the risk of being struck down of being violative of Articles 14 and 16 of the Constitution of India as it amounts to virtually reserving the posts for recruitment only from amongst the Daily Labourers already engaged by the High Court. If this method is permitted then Daily Labourers would be perennially available and no Class-IV posts or the post of drivers would ever be advertised for direct recruitment from the open market. The aforesaid provisos were added vide Notification dated 10.10.2002 prior to the decision in the case of Uma Devi (supra). The Rules are not under challenge but we have to pronounce upon the source and method of recruitment under the proviso to Rule 4 (a) and Rule 14 in view of the submissions that have been raised on behalf of the High Court.

In our considered opinion, interpreting the Rules as aforesaid would also save the Rules from being declared ultra vires and would simultaneously protect its operation within the fold of Articles 14 and 16. Rule 25 of the 1976 Rules and Rule 8 of the 2000 Rules clearly mandate an advertisement to be made for the public at large to know about the vacancies so that eligible candidates may apply. With there being no advertisement, the others can never get an entry. If the method of recruitment as suggested in the proviso is adhered too, then no situation would arrive for inviting applications through the Employment Exchange or from the general public as is evident from the experience of the past and presently reflected in all the reports of the High Court. We are fortified in our view from the said fact having been admitted by the High Court in para 13 of the affidavit dated 16.8.2012 extracted hereinunder:-

“13. It is submitted that no specific procedure has been laid down in the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 for the appointment to the post of Class IV employees. While the Rule 7 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 says that the post of Jamadar, Daftari & Bundle lifter or Head Mali of the promotional post.

It appears that to fill up the permanent and temporary vacancies of class IV employees in the establishment of Allahabad High Court, no regular procedure, viz, advertisement and taking some test/examination and making provision for reservation, etc., has been observed. Perhaps because of the reason that this procedure was cumbersome, hence, to meet the exigencies D.L., C.L., D.L. (Drivers) have been appointed by the Hon'ble Chief Justice, who were thereafter given preference in regularization to the class IV post for which rule 4 (a) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, empowers the Hon'ble Chief Justice.”

The said facts had also been reiterated in the affidavits filed by the Registrar before the learned Single Judges in the case of Radhey Shyam Tiwari (supra) and Diwakar Singh (supra).

It is for this reason that in the entire history of 137 years of the High Court that no advertisement was made particularly after 1976 in the post constitution period when the Rules were framed and adopted. The rules appear to have gone unnoticed.

....... The most important rule that attains significance in the present dispute is Rule 45 which opens with a non-obstante-clause empowering the Chief Justice to make such orders as he may consider fit in respect of recruitment, promotion, confirmation or any other matter.

It is in this context that the powers of the Chief Justice under Article 229 of the Constitution of India and Rules 41 and 45 of the 1976 Rules have to be considered. To our mind, Rule 41 and 45 are powers available to be utilised when the smooth implementation of the Rules get impeded. They are not as a substitute for the rules of regular employment. They are to remove rare and occasional difficulties. We have already indicated that Rule 41 and Rule 45 coupled with the powers under Article 229 are subject to Articles 14 and 16 of the Constitution of India. To this extent, we have already indicated that the interim order and the judgment of the full bench in the case of High Court of Judicature at Allahabad Vs. Diwaker Singh (supra) has not explained the law correctly.

Secondly the process of regular appointment through advertisement or through the known methods of public employment was not followed. Even if preference was to be given to the existing daily labourers/ casual labourers/ DL drivers, the same ought to have been after an advertisement as per Rule 25 of the 1976 Rules and Rule 8 of the 2000 Rules. The entire exercise was completed within three days which fact remains undisputed. The regularisation is sought to be justified on the basis of the Class IV Employees Association case (supra) of the year 1993 where directions had been given by the division bench to undertake this exercise on the basis of the guidelines mentioned therein. Consequently, the posts that were created in 2004 and the method of recruitment of such employees who were regularised was sought to be protected in terms of the proviso to Rule 4(a) and Rule 14 that came to be added on 10th October, 2002 coupled with the 1993 judgment referred to hereinabove.

We have carefully examined all the affidavits that have been filed and it is evident that all the appointments that were sought to be regularised prior to sanction of the post on 10th December, 2004 had been made by engaging daily labourers and casual labourers including the post of Drivers without following the procedure prescribed for recruitment under Part-VII of the 1976 Rules, particularly, Rule 25 and Rule 8 of the 2000 Rules which mandates the calculation of the age of the candidate to be not less than 18 years and not more than 35 years for a Class IV post on the 1st day of July of the year in which the advertisement is published. We would like to emphasise the words “advertisement is published” which leaves no room for doubt that after the promulgation of the 1976 and 2000 Rules an appointment has to be made only after an advertisement. It would not be a futile repetition to say that no advertisement was ever made in the High Court for appointment on the post of a Class IV employee or a driver, except for one insignificant advertisement at Lucknow in 2011 that we have noted in this judgment. No other advertisement for such engagement was ever made either at the principal seat at Allahabad or at the bench at Lucknow including their appointments in 2004 presently involved.

We have examined the 1976 and 2000 Rules carefully but we do not find any separate provision for regularisation of such engagements that have been made and are presently involved."

bu fu;qfDr;ksa ds fy, vkuu&Qkuu esa fjiksVZ rS;kj djus ds ckjs esa ihB us fVIi.kh dh fd& ........"It is on the strength of such guidelines that steps were undertaken to extend the benefit of regularisation in the past. The aforesaid judgement came to be implemented when 500 posts were sanctioned way back vide Government Order dated 5.12.1995 against the request of the High Court to sanction 855 posts.

In addition to those posts, 355 posts were subsequently sanctioned on 10.12.2004 which is subject matter of present controversy where again the aforesaid judgment appears to have been pressed into service keeping in view the 1976 and 2000 Rules. It is worth mentioning that when 855 posts were demanded and only 500 posts were sanctioned in 1995, a proposal approved by Hon'ble the Chief Justice on 5.3.1994 was sent to the State Government reflecting the position that existed then.

In the instant case, when the Hon'ble Acting Chief Justice passed orders on 13.12.2004, a proposal was submitted and an exercise was undertaken for interviewing about 150 Daily Labourers and Casual Labourers to assess their performance appraisal on 13.12.2004 in tune with the judgment in the case of State of U.P. Vs. Class-IV Employees Association. It was also stated in the report then that when 500 posts were sanctioned in 1995, a Committee comprising of the then Hon'ble Judges (Mr.Justice A.K. Banerjee and Mr. Justice S.R. Singh) had regularised Daily Labourers and Casual Labourers on the basis of number of working days coupled with the assessment of their work appraisal. The report in the present case that was prepared and submitted on 14.12.2004 and accompanies the Affidavit dated 23.7.2013, indicates that the assessment was carried out on the same day and on 14.12.2004, the same was also approved by Hon'ble the Acting Chief Justice.

To our mind, such an exercise, within 24 hours that was carried out, does not conform to any serious exercise having been undertaken in terms of the judgment of 1993 referred to herein above and the conditions mentioned therein.

The issue that still remains to be answered by us is the issue of regularisation. After the Division Bench judgment in the case of State of U.P. Vs. Class-IV Employees Association (supra), the law on this issue went a sea change with the pronouncement of the Apex Court from time to time. The judgment, which stares at the face of such claims of regularisation in matters of public employment, is the leading case of Secretary, State of Karnataka and others Vs. Uma Devi (3) and others, (2006)4 SCC 1. Practically for all purposes appointments without following the Rules and described as back door entries were clearly deprecated and it was held that no such rights exists for being enforced in view of the clear mandate of Articles 14 and 16 of the Constitution of India. The ratio of the said decision has been spelled out in paragraph Nos. 43 to 54 of the said judgment. If the ratio of the said decision is applied herein, then the observations made in the Division Bench judgment in the case of State of U.P. Vs. Class-IV Employees Association (supra) would stand diluted. In the said 17.12.2004 need not be re-opened by us in view of the aforesaid ratio of the Apex Court but the Division Bench judgment of 1993 of our Court now cannot be pressed into service for an exercise of any further regularisation.

So far as the appointments and orders of regularisation made after 17.12.2004 are concerned, the same have been made subject to the orders of the present proceedings as per the order dated 20.12.2004 itself. Such appointments and regularisation or orders that have been made during the pendency of these proceedings, therefore, will have to be judged as per the law laid down in the case of Uma Devi (supra) and in the event any such appointment or regularisation orders have been made dehors the rules, the same would not have any legal effect, subject to the directions given hereinafter.

We are, however, not entering into the merits of the regularisation orders of the appointees against the 355 posts sanctioned by the State Government on 10.10.2004 as that are not parties before us, nor their appointment has been assailed or challenged. The Division Bench, while taking cognizance, had commented upon the ratio of the bifurcation as also the procedure for such engagement but in view of the fact that all the 355 appointees are not before us, who were given regular appointments under the orders of Hon'ble the Acting Chief Justice or the Chief Justice we would not like to add anything further in this respect."

deZpkfj;ksa ds mudh fu;r dk;Z ds brj rSukrh ij xaHkhj iz'u [kM k djrs gq, ihB us fVIi.kh dh& "There is yet one disturbing feature with regard to actual deployments of Class IV employees as per their categorisation. We find that the deployment is against the structural set up, for e.g. A bhisti being asked to do the job of a peon and a peon being asked to perform the job of a driver.

There are other examples to say the least but what is more astonishing is deployment outside the establishment, particularly at the service of former Judges. The details do not deserve to be recounted with any pride. Apart from this, officers of the establishment who are otherwise not entitled to any such benefit under their statutory service rules have been favoured with such deployment.

2011 esa DL/CL dh fu;qfDr ds izkslsl ij izdk'k Mkyrs gq, ihB us dgk& "It appears that some order dated 14.3.2011 was passed by Hon'ble the Chief Justice as is evident from the order dated 21.1.2012 of the then Registrar at Lucknow for engagement of 12 Daily Labourers and 10 Casual Labourers. Referring to the procedure as approved of a 3 member selection committee for District Judgeship, a report on the basis of the said order of the Chief Justice was submitted indicating a 3 member committee constituted for engagement in the High Court. The said report was entertained by Hon'ble the Senior Judge at Lucknow and approved on 6.4.2011 whereafter the process commenced. It is then that a notice is said to have been published in “Workers Herald” which according to the District Judgeship of Lucknow, and not the High Court, is an approved newspaper. After applications were invited, a similar notice was published in the same newspaper on 17.5.2011 calling upon candidates who had applied to appear in the interview between 24.5.2011 and 28.5.2011. This timing was extended upto 31.5.2011 with the approval of the Senior Judge without any further notice. These facts were borne out from the affidavit and its annexures dated 16.8.2012. The order dated 21.1.2012 reflects approval by the then Senior Judge at Lucknow.

This procedure speaks for itself and the newspaper chosen is an insignificant newspaper and neither a known local daily nor a national daily or a newspaper of wide circulation in the State. It is not understood as to why the Registrar at Lucknow chose to rely on such a list when reputed newspapers of Hindi like “Dainik Jagran”, Amar Ujala, Nav Bharat Times, Hindustan and English dailies like Hindustan Times, Pioneer etc. are all published from Lucknow and are the most widely circulated newspapers throughout the State including Lucknow. The High Court has all the resources of the State to publish advertisements for all appointments as is being done and was also done in the past for all other posts. The Registrar appears to have completed a formality to justify the advertisement which does not inspire any confidence worth mentioning. We are not satisfied with the said procedure and the matter will have to be re-examined de-novo in its entirety including any orders that were required by the competent authority including the Hon'ble Chief Justice. ............

........ We may place on record that according to the affidavits the exercise prior to 2004 had been done by Hon'ble the Chief Justice in 1997 by constituting a two judges committee when 500 posts were sanctioned by the State Government in 1995 to be filled up by regular appointment. The exercise undertaken in 2004 was through the officials of the Registry within three days which deserves to be taken notice of and it is for this reason that the matter was referred to this five judges full bench. We do not in any way intend to mantle ourselves with the authority of carrying out this administrative exercise and our only effort has been to bring on record that such an effort is necessary to be undertaken periodically.

mPp U;k;ky; dks funsZf'kr djrs gq, ihB us dgk& "The date of retirement of employees is well known in advance and therefore the number of vacancies that are likely to occur each year in these cadres is known to the High Court. In our opinion such an exercise should be taken at least every six months in order to ensure that the smooth functioning of the High Court is not hampered on account of non-availability of regular employees. If such an exercise is undertaken honestly any such problem can be safely avoided by providing hands at the appropriate time. To wait till the last moment and then to induct Daily Labourers, who are ensured of a regular appointment by the methods that have been adopted uptill now cannot be said to be a fair procedure and to avoid this, as has been happening in the past, the aforesaid exercise has to be undertaken.

Consequently, we are of the opinion, that the reports which are accompanied with the affidavits should now be given a relook in the light of the principles that we have laid down in the present judgment and then after examining the sanctioned strength, the adjustments to be made in accordance with the ratio currently invoked and the appropriate deployments.

The matter be placed by the Registrar alongwith a comprehensive report for the entire Establishment both at Allahabad and Lucknow before Hon'ble the Chief Justice alongwith a copy of this judgment for setting the process into motion in the light of what has been said above. This exercise may be desirable within a period of three months or even earlier as may be convenient to Hon'ble the Chief Justice for passing appropriate orders. It is only thereafter that the High Court may proceed to make appointments as per rules keeping in view the ratio of this judgment. No appointments of DL/CL/Adhoc/ Temporary/Permanent Class IV employees including drivers shall be made unless the matter is finalized as directed hereinabove and hereinafter.

....... We further direct that the bifurcation shall henceforth be made in the ratio which has been maintained uptill now and indicated above subject to any further modifications that may be required in an administrative exigency.

The requirement of future posts as reflected in the reports shall also be finalized and the matter shall be sent to the State Government for sanction keeping in view the requirements as reflected therein.

The process of regular appointments shall be made in accordance with the 1976 and 2000 Rules read with the interpretation given by us in the present judgment by following the due process of advertisement and fair selection. The Daily Labourer or Casual Labourer engaged by the High Court shall only have a preferential consideration at the time of recruitment and shall not be a permanent source of recruitment for regular appointment. The same would also apply equally to the cadre of Drivers who are governed by the 2000 Rules."

ihB us fookfnr fu;qfDr;ksa ij dgk fd& "The regular appointments through the inducted method as per the proviso to Rule 4(a) and Rule 14 after December, 2004, were made subject to the result of the present proceedings. We accordingly, hold that any appointments de-hors the rules and as indicated hereinabove contrary to the principles laid down in State of Karnataka Vs. Uma Devi's case (supra) can not be treated to be regular appointments.

At the same time we clarify, that by toning severity with leniency, as was finally done by the Apex Court in Puttaswami H.C.'s case (supra), regular engagements already made against the 355 posts shall not be disturbed as the said 355 appointees against the sanctioned posts are not before us. We are simply inclined to be forgiving but the same shall not be treated as a precedent as, to be amiable at the expense of a rule, would be to sacrifice the principle that would defy the constitutional mandate.

.....Having said so we may add for the benefit of the registry that the High Court has to carry its own sack of rocks and a little bit of insight would improve everybody's lot inasmuch as the credibility of any institution depends upon the transparent action of its functionaries. It is for this reason that we have indicated the principles on which the High Court should proceed to put to rest this burden that has been cast on account of the mismanagement as noted by us hereinabove. Our view expressed for undertaking regular exercises every six months would ensure regularity and, therefore, we would lay to rest this decision with the aforesaid directions by remembering Angelique Arnauld who said :-

“Perfection consists not in doing extraordinary things, but in doing ordinary things extraordinarily well. Neglect nothing; the most trivial action may be performed to God.”

bl QSlys us blh U;k;ky; ds iw.kZihB ds QSlys dks iyV fn;k gSSA

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mPp U;k;ikfydk dh U;kf;d lfØ;rk ds dkj.k mPpre U;k;ky; o mPp U;k;ky;ksa }kjk fn, x, tufgr] lektfgr o ns'kfgr ds QSlyksa ls lÙkkyksiqi] Hkz"V] csbeku usrk] ny o ljdkjsa] bruk [kh> x;h gSa fd bu tufgrdkjh QSlyksa dks vikLr djus ds fy, dkuwu cukus ij mrj vk;h gSaA

fo/kkf;dk o U;k;ikfydk dk Vdjko dksbZ u;k ugha gS tc&tc U;k;ikfydk us tufgrdkjh fu.kZ; nsdj ljdkj ds pky] pfj=] psgjs ij loky [kM k fd;k gS bu usrkvksa dks ,slh fryfeykgV gqbZ tSls dqÙks dh iwaN ij ikoa iM x;k gks vkSj fujk'kk o grk'kk esa tks izfrfØ;k nsrh gS og f[kfl;kuh fcYyh [kEck ukspus tSlh yxrh gSA

ywVra= esa cny pqds nqfu;k ds lcls cM s ysfdu lcls Hkz"V yksdra= dk ,slk psgjk nqfu;k ds lkeus vk;k gS fd vc rks Hkkjrh; dgykus esa Hkh 'keZ vkrh gSA

mPpre U;k;ky; }kjk jktuhfr ds vijk/khdj.k ij jksd yxk;s tkus okys nks QSlyksa us lHkh nyksa }kjk jktuhfr ds vijk/khdj.k ij igys cgk;s tkus okys ?kfM ;kyh vkalw dh vlfy;r [kksydj lcds psgjs ls LoPN jktuhfr o ikjnf'kZrk dk eq[kkSVk mrkj fn;k gS blls ckS[kyk, vf/kdka'k jktuhfrd ny ,sls bdV~Bs gks x;s tSls ladV ds le; HksM s ,dtqV gks tkrh gSaA

fiNys 66 o"kksZa esa ,d yksdiky fo/ks;d u ikl djk ikus okys ny U;k;ikfydk dks Mjkus] fu;af=r djus o iaxq cukus ds fy, mPp U;k;ky; o mPpre U;k;ky; ds ttst dh fu;qfDr ds fy, vk;ksx cukus dk fcy jkT;lHkk esa is'k fd;k gSA

usrkvksa us viuh Hkz"V ekufldrk dk fuyZTt izn'kZu djrs gq,] viuh rkdr dk cstk bLrseky djrs gq, mPpre U;k;ky; ds fu.kZ; dks izHkkoghu djus ds fy, u flQZ cSd MsV ls dkuwu ykxw djus dh izfØ;k pkyw dj nh gS cfYd ttst dks Mjkus ds fy, mudh fu;qfDr esa ljdkj o nyksa ds usrkvksa ds gLr{ksi dk ekxZ iz'kL= djus dk iz;kl Hkh 'kq# dj fn;k gSA ;g ckr le> ls ijs gS fd yksdiky] efgyk vkj{k.k tSls vusd dkuwuksa ij pqi cSBh usrk blds fy, brus mrkoys D;ksa fn[k jgs gSaA

tc U;k;ky; i{k esa cksyrk gS rks usrk] ljdkj lcdh vkLFkk U;k;ikfydk esa ,sls c< tkrh gS tSls ?ku?kksj ckfjl esa unh esa ikuh vkSj tc U;k;ikfydk ljdkjksa] usrkvksa dh nq[krh jx] v{kerk] Hkz"Vkpkj] vdeZ.;rk ij maxyh j[k nsrh gS rks buds eqag ls U;k;ikfydk ds gn esa jgus dh ,slh ph[k fudyrh gS tSls dqÙks dh iw¡N ij fdlh dk iSj iM x;k gksA

2 th LisDVªe vkoaVu ?kksVkyk] eq[; lrdZrk vk;qDr dh nks"kiw.kZ fu;qfDr] fons'kksa esa tek dkyk/ku] vijk/kh usrkvksa ds pquko yM us ij izfrcU/k] ltk;kQrk tuizfrfuf/k;ksa dh lnu lnL;rk dh lekfIr] ohvkbZih lqj{kk ij coky] lhchvkks dks Lora= djus dh xqgkj] usrkvksa] vQljksa ds in ls gVkus ds chp ,d eghus esa vkokl [kkyh djus ds funsZ'k rFkk dqN vU; ekeyksa esa mPpre U;k;ky; dh lfØ;rk ls vkgr ns'k ds vc rd lcls detksj o Hkz"Vkpkj dks c< kok nsus okys iz/kkuea=h }kjk U;k;ikfydk dks gn esa j[kus dh uh;r ls lafo/kku esa la'kks/ku o ttst dh fu;qfDr ds fy, vk;ksx cukus dk tks fcy yk;k x;k gS] ;g cgl fNM x;h gS fd U;k;ikfydk dh gn D;k gS\ ;g igyk volj ugha gS tc ;g gn ;kn fnykus dh dksf'k'k dh x;h gS blds igys Hkh dbZ volj ,sls vk;s gSa tc ,slh fLFkfr;k¡@ifjfLFkfr;k¡ vkbZ gSaA

gekjk lafo/kku ,d f[kpM h dh rjg gS ftlesa lkr ns'kksa ls mldh vPNh&vPNh ckrksa dks ysdj bls rS;kj fd;k x;k gSA tgk¡ fczVsu esa laln loksZPp gS ogha vesfjdk esa U;k;ikfydk loksZPp gS ysfdu gekjs lafo/kku esa fo/kkf;dk] dk;Zikfydk o U;k;ikfydk ds :i esa rhu izeq[k vax cuk, x, gSa ftlesa lcdh vyx&vyx Hkwfedk fu/kkZfjr gSA lafo/kku ds bu rhuksa vaxksa esa lkeatL; cgqr vko';d gS vU;Fkk laoS/kkfud foQyrk (Constitutional Failure) dk [krjk mRiUu gks tk;sxkA gekjs ns'k esa lafo/kku dh gh lÙkk loksZPp gS] ;gh yksdra= dh og tM gS tgk¡ ls rhuks vax dk;Zikfydk] fo/kkf;dk vkSj U;k;ikfydk viuk bZa/ku ysdj vius vfLrRo dks cpk;s j[ks gaSA

yksdra= esa turk lcls vge gS tc rd lafo/kku cnyk ugha tkrk bl lafo/kku ds fglkc ls rks lc dqN turk }kjk turk ds fy, gh fd;k tk jgk gSA

vktknh ds ckn bu 66 o"kksZa esa lcls vf/kd le; yxHkx 54 o"kZ dkaxsl us gh jkt fd;k gS blfy, U;k; ikfydk ls mldk Vdjko Hkh iqjkuk gSA dkaxzsl dk U;k;ikfydk ls NÙkhl dk vkadM k jgk gSA vktknh ds ckn tc lafo/kku fuekZ.k izfØ;k esa Fkk ml le; Hkh dkaxzsl ds 'kykdk iq#"k iafMr tokgj yky usg: U;k;ikfydk dks cgqr 'kfDr'kkyh cukus ds i{k/kj ugha FksA os laln dks loksZPp cukuk pkgrs FksA gks ldrk gS mldk ,d dkj.k ;g jgk gks fd os fczVsu esa i< s fy[ks blfy, ogk¡ dk izHkko mu ij jgk gks D;ksa fd ogk¡ laln gh loksZPp gSA lafo/kku lHkk esa 6 twu 1949 dks loksZPp U;k;ky; ds vf/kdkjksa ij cgl ds nkSjku iafMr th us dgk Fkk fd laln dh bPNk ij dksbZ loksZPp U;k;ky; ;k dksbZ U;k;ikfydk viuk fu.kZ; ugha Fkksi ldrh ¼'kk;n ml le; muds tsgu esa ;g ckr u vk;h gks fd Hkkjrh;ksa ds vkSj fczVsu ds uSfrd vkSj jk"Vªh; lksp esa D;k QdZ gS½ ysfdu muds fojks/k dks njfdukj djrs gq, lafo/kku lHkk us U;k;kikfydk dks U;kf;d leh{kk dk vf/kdkj ns fn;kA bl vf/kdkj ls U;k;ikfydk dks rhuksa vaxksa ds vf/kdkj {ks= dh lhek,a ?kksf"kr djus vkSj laln }kjk ikfjr fd;s x;s dkuwuksa rFkk dk;Zikfydk ds fu.kZ;ksa dh U;k;f;d leh{kk dk vf/kdkj izkIr gks x;kA

fojks/k dk og flyflyk vkt rd cnLrwj tkjh gSA fopkj.kh; iz'u ;g gS fd tc dkaxszl lÙkk esa gksrh gS rHkh U;k;ikfydk ls mldks f'kdk;r D;ksa gksrh gS\ D;k bldk vFkZ ;g fudkyk tk; fd dkaxzsl Lora= U;k;ikfydk dh fojks/kh gS\ bl Vdjko dk ,d dkj.k rks ;g le> esa vkrk gS fd dkaxzsl dh fujadq'k lÙkk ij udsy Mkyus dk dke vc rd U;k;ky;ksa us gh fd;k gS pkgs og vkfVZfdy 356 dk nq#i;ksx gks ;k >kj[k.M ds pquko ds ckn ljdkj xBu dk ekeykA bykgkckn mPp U;k;ky; ds fo}ku U;k;ewfrZ txeksgu yky flUgk dk bafnjk xka/kh dk pquko voS/k ?kksf"kr djus okyk QSlyk rks vkikrdky dk vk/kkj cuk fn;k x;kA mlh le; 38osa la'kks/ku ds tfj;s vkikrdky dh ?kks"k.kk dks U;k;f;d leh{kk dh ifjf/k ls ckgj dj fn;k x;kA 39osa la'kks/ku ds tfj;s loksZPp U;k;ky; ij vkf/kiR; dk;e djuk FkkA bu lcls larq"Vh u feyus ij 42oka lafo/kku la'kks/ku vk;k ftlesa izko/kku dj fn;k x;k fd vc vkxs lafo/kku esa fd, x;s fdlh Hkh la'kks/ku ij dksbZ maxyh ugha mBk ldrkA iafMr tokgj yky usg# dh bPNk dks mudh csVh Jherh bafnjk xka/kh us iwjk dj fn[kk;k fd laln dks lafo/kku esa dqN Hkh djus dk vf/kdkj izkIr gS mldh fdlh Hkh U;k;ky; }kjk U;kf;d leh{kk ugha dh tk ldrh gSA fujadq'k lÙkk us xqaMbZ dk [kqyk izn'kZu djrs gq, U;k;ikfydk dh voekuuk ds lkFk&lkFk mldks /kefd;k¡ Hkh nsus yx x;h FkhaA

1976 esa U;k;y;ksa ij vf'k"Vrk dk vkjksi yxkrs gq, yksd lHkk esa dgk x;k fd lafo/kku mPp o mPpre U;k;ky; dks ;g vf/kdkj ugha nsrk fd fdlh laoS/kkfud lalks/ku dh oS/krk dk ijh{k.k djsa] ^^nqHkkZX; ls vnkyrksa us viuh fu/kkZfjr lhekvksa dk mYya?ku fd;k gS**A ,u-ds-ih- lkYos us dgk fd oDr vk x;k gS tc gesa lafo/kku dks vnkyrksa ls cpkuk gksxkA bruk gh ugha izp.M cgqer izkIr rRdkyhu iz/kkuea=h Jherh bafnjk xka/kh us Lo;a ?kks"k.kk dj nh fd ge ewy <kaps ds fl)kUr dks Lohdkj ugha djrsA ¼Kkr gks fd 1973 esa ds'kokuUn Hkkjrh ekeys esa ekuuh; mPpre U;k;ky; us ewy <kaps ds fl)kUr dks izfrikfnr djrs gq, dgk Fkk& ^^tcfd laln&lafo/kku ds fdlh Hkkx dks la'kksf/kr dj ldrh gS mls lafo/kku ds ewy <kaps esa ifjorZu ugha djuk pkfg,**½ vkSj Lo.kZ flag dh bl ckr dks fd U;k;/kh'kksa us bl okD; dk vk;kr fd;k gS] dks vkSj vkxs c< krs gq, dgk Fkk fd eSa ;g ugha dgwaxh fd U;k;k/kh'kksa us bldk vk;kr fd;k gSA pawfd bldk fdlh vU; lafo/kku esa vfLrRo ugha gS blfy, eSa rks ;gh dgwaxh fd mUgksaus bldk vfo"dkj fd;k gSA Jherh xka/kh ds fdpsu dSfcusV ds ,d vkSj peps lh-,e- LVhQsu us nks dne vkSj vkxs c< rs gq, dgk ^^vc bl laln dk vf/kdkj ?kksf"kr gks x;k gS tks vlhfer gSA la'kks/kuks ds tfj, ikl fd;s x;s dkuwu fdlh Hkh vnkyr dh lhekvksa ls ijs ?kksf"kr fd;s tkrs gSa vc ;g vnkyrksa ds Åij gS fd D;k mUgsa bldk mya?ku djuk pkfg,\ eSa ugha tkurk gw¡ fd D;k muds vanj ,slk djus dk lkgl gksxk] ysfdu ;fn os ,slk djrh gSa] rks tSlk dkuwu ea=h us dgk] og U;k;kikfydk ds fy, ,d [kjkc fnu gksxkA U;k/kh'kksa ds vkpj.k ds tkap ds laca/k esa lnu dh lfefr cSB jgh gS] gekjs ikl vius rkSj&rjhds vkSj e'khujh ekStwn gS**A

dkaxzsl us lke] nke] n.M] Hksn dk bLrseky djds U;k;ikfydk dks vius o'k esa djus dh dbZ ckj dksf'k'k dh vkSj dqN voljksa ij mls mlesa lQyrk Hkh feyh ysfdu vf/kdka'k mls vlQyrk gh gkFk yxh vkt U;k;ikfydk dh n`< rk dk gh ifj.kke gS fd gekjs lafo/kku iznÙk beste online casino ekSfyd vf/kdkj iwjh rkSj ij rks ugha ysfdu dqN gn rd lqjf{kr gSA

bafnjk xka/kh us U;k;ikfydk dks uhpk fn[kkus dk tks flyflyk 'kq: fd;k Fkk jktho xka/kh us Hkh mls tkjh j[krs gq, 'kkgckuks dsl esa mPpre U;k;ky; ds fu.kZ; dks vikLr djus ds fy, lafo/kku la'kks/ku djds U;k;ikfydk ds izfr vius izpUM cgqer okyh dkaxszl dk bjknk lkQ djrs gq, ;g fl) dj fn;k Fkk fd feLVj Dyhu Hkh mlh nyny dk ,d fgLlk Fks vc eueksgu flag us jktuhfr ds vijk/khdj.k dks LFkkf;Ro iznku djus ds fy, lafo/kku esa lalks/ku djkdj mPpre U;k;ky; dks uhpk fn[kkuk pkgrs gSaA

dkaxzsl uhr la;qDr izxfr'khy xBca/ku ds iz/kkuea=h eueksgu flag us viuh igyh ikjh esa Hkh blh rjg dh ulhgr U;k;ikfydk ¼mPpre U;k;ky;½ dks ns pqds gSa vc ,d ckj fQj mUgksaus viuh v{kerk] Hkz"Vkpkj dks fNikus ds fy, U;k;ikfydk dks canj ?kqM dh nh gS ftlesa oMZ vkWQ Qsnj ¶ykd Vqxsnj dh rtZ ij lHkh jktuhfrd ny ladV ds le; fl;kjksa dh rjg ,d gks x;s gSaA

U;k;ikfydk viuk lafo/kku iznÙk vf/kdkj {ks= cgqr vPNh www.atoledo.com rjg ls tkurh gS vkSj ml nk;js esa jgdj gh dke djrh gS ;fn dHkh dgha vfrØe.k gks Hkh x;k rks ml ij Lo;a gh ,D'ku ys fy;k gSA ,sls vusd volj vk;s gSa tc U;k;ky;ksa us Lo;a ,sls ekeyksa dk laKku fy;k gS vkSj viuh gn ls ckgj tkus okyksa dks QVdkjk Hkh gSA U;k;ewfrZ ,-ds- ekFkqj ,oa U;k;ewfrZ ekdZUMs; dkVtw dh csap us ,sls gh ,d fu.kZ; esa vius vkns'k esa dgk fd gky ds dqN ekeyksa esa ,slk yxrk gS fd U;k;ky; us dk;Zikfydk ds vf/kdkj {ks= vFkok uhfrxr ekeyksa esa n[ky fn;k gSA vkxs vkxkg djrs gq, dgk fd ;fn U;k;k/kh'k Hkh fuokZfpr izfrfuf/k;ksa vFkok iz'kkldksa dh rjg dke djsaxs rks ,slh fLFkfr esa U;k;/kh'kksa dk fuokZfpr izfrfuf/k;ksa dh rjg gh pquko gksxk vFkok iz'kkldksa dh rjg pquko o izf'k{k.k gksxk tks fuf'pr gh uqdlkunk;d gksxkA ;gh dkj.k gS fd U;k;ikfydk dh Lora=rk cuk;s j[kus dk egRoiw.kZ fcUnq bls jktfufrd vFkok iz'kklfud izfØ;k ls nwj j[kk x;k gSA

U;kf;d lfØ;rk ds  vkykspd U;k;ewfrZ ekdZ.Ms; dkVtw us Hkh vka/kzizns'k ljdkj o vU; cuke Jherh ih y{eh nsoh ds ekeys esa QSlyk nsrs gq, dgk&In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. ....
It must be understood that while a statute is made by the peoples’ elected representatives, the Constitution too is a document which has been created by the people (as is evident from the Preamble). The Courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or legislature as unconstitutional. ..."

dksbZ Hkh ljdkj 'kfDr'kkyh U;k;ikfydk ugha pkgrhA bl izp.M Xyksoykbts'ku o mnkjhdj.k ds nkSj esa ftlds Hkkjrh; iqjks/kk iz/kkuea=h th gSa] us viuh ulhgr ml lEesyu ¼jk"VªeaMy] fof/k lEesyu½ esa  igys nh Fkh ftlesa 53 ns'kksa ds yxHkx 800 izfrfuf/k Hkkx ys jgs FksA Lora= Hkkjr esa dkaxzsl Hkz"Vkpkj dh tuuh gS rks vU; ny mlds ikyu iks"k.k drkZ gSaA gj tuuh dks viuh larku I;kjh gksrh gS pkgs og fdruh gh fouk'kd D;ksa u gks\ dkaxzsl viuk tuuh /keZ fuHkk jgh gS] U;k;ky; viuh djuh dj jgs gSaA

dYiuk dhft, vxj U;k;ikfydk Hkh fo/kkf;dk o dk;Zikfydk ds Loj esa Loj feykdj [kkeks'k cSB tk; rks bl fnXHkzfer yksdra= dk D;k gksxk\ tks yksx vkt U;k;ikfydk dks bldh y{ke.k js[kk ;kn fnyk jgs gSa os 'kk;n viuh deZ js[kk Hkwy x;s gSaA dksbZ y{e.k js[kk rc rd fdlh lhrk dks ugha cpk ldrh tc rd og ekuorkoknh n`f"Vdks.k dks ifjR;kx u dj ns ;gk¡ ;g crkuk lehphu gksxk fd lhrk us y{e.k js[kk vius fgr ds fy, ugha cfYd ,d lk/kw dks thou ;kiu ds fy, fHk{kk nsus ds fy, ikj dh Fkh u fd ,d /kks[ksckt ds fy,A vxj dksbZ O;fDr U;k;fgr esa viuh y{e.k js[kk yka?krk Hkh gS rks mldk rgsfny ls bLrDcky gksuk pkfg, D;ksfd dbZ ckj U;k;fgr esa U;k;/kh'kksa }kjk ,slk djuk t:jh gks tkrk gSA

fo/kkf;dk vkSj dk;Zikfydk ds ^pksj&pksj* ekSlsjs HkkbZ lkfcr gksus ds ckn vke vkneh dks vc flQZ U;k;ikfydk dk gh lgkjk cpk gSA ,slk ugha gS fd U;k;ikfydk nw/k dh /kqyh gS ysfdu vkuqikfrd rkSj ij og vkt Hkh lcls csgrj o yksd dY;k.k dkjh dk;Z djus esa vkxs gSA orZeku esa mPp U;k;ky; ,oa mPpre U;k;ky; ds ttst dh fu;qfDr izfØ;k esa deh ikjnf’kZrk dh gS ;fn mls ikjnf’kZrk ckrs gq, foeqfDr dh tk; rks 'kk;n fdlh dks maxyh mBkus dh t:jr ugha iM sxhA
vxj pUn ekeyksa dks NksM fn;k tk; rks U;k;ikfydk us vc rd dksbZ ,slk dk;Z ugha fd;k ftlls ns'k o ns'k okfl;ksa dk flj 'keZ ls >qdk gks tcfd fo/kkf;dk o dk;Zikfydk esa ,sls gtkjksa mnkgj.k ekStwn gSaA

U;k;ikfydk dk nkf;Ro gS fd og vke vkneh dh ijs'kkfu;ksa fo'ks"kdj blds thou] Lora=rrk] lekurk] i;kZoj.k o Je dk fujkdj.k djsaA ;gh dk;Z dkuwu dk 'kklu dk;e j[kus ds fy, Hkh vko';d gS blds fy, ;g vko';d ugha gS fd og fo/kkf;dk o dk;Zikfydk dk dk;Z Lo;a djus yxsA oSls Lo;a og ;g dk;Z dj Hkh ugha ldrh D;ksafd mlds ikl ;g lc djus ds fy, u rks bUÝkLVªDpj gS u gh n{krkA ;g lc djkus ds fy, laof/kku iznÙk vf/kdkj mlds ikl t:j gS ftlds rgr og funsZ'k ns ldrh gSA

vkt lkekU; U;kf;d izfØ;k dks U;kf;d lfØ;rk vkSj U;kf;d lfØ;rk dks U;kf;d vfrokfnrk dh laKk nh tk jgh gS okLro esa U;kf;d lfØ;rk ls ogh yksx ihfM r] nq%[kh vkSj vlgt gks jgs gSa tks ;k rks Lo;a Hkz"Vkpkj esa fyIr gSa ;k mldks c< kus esa lgk;d gSaA vijk/k@Hkz"Vkpkj eqDr ns'k esa jguk O;fDr dk laoS/kkfud vf/kdkj gS vkSj bl dk;Z ds fy, U;k;ikfydk dks fdlh Hkh gn rd tkuk pkfg,A tks mlusa jktuhfrd ds vijk/khdj.k ij vadq'k yxkus ds QSlys ds tfj;s fd;k gSA vc vxj ;s Hkz"V] vijk/kh usrk bl QSlys dks csvlj djus ds fy, lafo/kku la'kks/ku djds dkuwu cukrs gSa rks vkus okys pquko esa tks Hkh ny oksV ekaxus vk;s mudks lkS twrs ekjdj vkSj ,d lkS ,d twrs piiyksa dh ekyk igukdj Bhd mldh rjg Lokxr djsa tSls muds ea=h] eq[;ea=h cuus ij Hkz"Vpkjh uksVksa dh ekyk iguk dj djrs gSaA

ge U;k;ikfydk dh /kkj dks dqan djus okys ls gj ml lafo/kku la'kks/ku dk fojks/k lM d ls laln rd djsaxs ftlls tukdka{kk ij dqBxkj?kkr gksrk gks D;ksafd yksdra= turk dh otg ls gS usrkvksa dh ugha] turk ds izfr usrkvksa@nyksa dk tks joS;k gS] ywV [klksV dk tks okrkoj.k gS ml ij 'kk;j dh nks iafDr;kA

^^oDr tc eqYd dk vk;k rks ygw eSus fn;kA
vkt os eq>ls iwNrs gSa rsjk dke D;k gSA**

Last Updated on Friday, 24 July 2015 16:39

क्षेत्राधिकार के मुद्दे पर अवध बार एसोसियेशन आर पार के मूड में

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y[kuÅA ^okndkjh dk fgr loksZPp gS* dks U;k;ra= dk ewyea= ekurs gq, bykgkckn mPp U;k;ky; dh y[kuÅ [k.M ihB dh vo/k ckj ,lksfl;s'ku us okndkfj;ksa dks lqyHk U;k; fnykus gsrq dkuiqj eaMy] cjsyh eaMy] leLr :gsy[kaM {ks= rFkk if'peh mÙkj izns'k ds lHkh ftyksa dks bygkckn ihB ls gVk dj y[kuÅ ls 'kkfey djus ds fy, o`gn vkanksyu NsM fn;k gSA

Kkr gks fd if'peh mÙkj izns'k esa mPp U;k;ky; dh [k.M ihB LFkkfir djus ds fy, if'peh mÙkj izns'k ds vf/koDrkx.k dkQh le; ls vkanksyu djrs vk jgs gSaA ns’k ds eq[; U;k;k/kh'k ds ,d c;ku ds ckn bl ekax ds vf/kd tksj idM us ij bygkckn ihB dh bykgkckn ckj ,lksfl;s'ku us vkanksyu djds bygkckn mPp U;k;ky; bygkckn esa xsV esa rkys can dj fn;s rFkk viuh lhek ls vkxs c< rs gq, y[kuÅ ihB ds {ks=kf/kdkj dks vkSj lhfer djus tSlh vU;k;iwoZ ekax dj nhA

y[kuÅ [k.M ihB ds vf/koDrkx.k tks cgqr igys ls tloar desVh dh fjiksVZ ykxw djus ds fy, iz;kljr gS] esa bykgkckn ckj dh bl ekax us vkx esa ?kh dk dke fd;k ftlds QyLo:i 16 vxLr ls vo/k ckj ,lksfl;s'ku us viuh ekax ds leFkZu esa U;kf;d dk;ksZa ls fojr gksdj vkUnksyu casino jameshallison 'kq: fd;kA vkanksyu dks /kkj nsrs gq, y[kuÅ ds fudV iM us okys {ks=ksa dkuiqj eaMy] csjyh eaMy] leLr :gsy [k.M {ks= lfgr lewps if'peh mÙkj izns'k dh lHkh ftyk ckj ,lksfl;s'kuksa ds lnL;ksa ls izfrfuf/k eaMy feykA izfrfuf/k eaMy ls bu lHkh ftyksa ds vf/koDrkvksa us if'pe esa [k.MihB LFkkfir gksus rd ykuÅ casino online ihB ls tqM us ds fy, u flQZ bPNk tkfgj dh cfYd vkanksyu dks lQy cukus ds fy, viuk iw.kZ lg;ksx nsus dk vk'oklu Hkh fn;kA
U;kf;d dk;Z ls fojr jgus ds nkSjku vo/k ckj ,lksfl;s'ku ds inkf/kdkjh ,oa vf/koDrkx.k mPp U;k;ky; izkxa.k esa izfrnu lHkk djds bl vkanksyu dks lQy cukus ds fy, ehfVax djds lc ds fopkj tkuus rFkk vkxs dh :i js[kk r; djus esa ,d tqVrk dk ifjp; fn;kA bl vkanksyu ds nkSjku ,lksfl;s'ku ds tks lnL; ,lksfl;s'ku ds U;kf;d dk;ksZa ls fojr jgus ds fu.kZ; ds fo#) tkdj dksVZ esa dke fd;k mudh lnL;rk c[kkZLr djus dh iqjtksj ekax dh x;h gSA

y[kuÅ [k.M ihB dk {ks=kf/kdkj c< kus dk ;g vkanksyu ekax iwjh gksus rd tkjh j[kus dks ;gka ds lnL; dfVc) gSaA okndkfj;ksa dk vfgr u gks blfy, vkus okys fnuksa esa U;kf;d dk;Z ls fojr jgus dk fu.kZ;  u ysdj U;kf;d dkZ djrs gq, bl vkanksyu dks vkSj izHkkoh <ax ls vkxs c< kus dh ekax ^ttesaV vktrd* ds lEiknd vfEcdk izlkn us bl vk/kkj ij dh fd U;k;ikfydk okndkfj;ksa ds fy, cuh gS u fd odhyksa] ttksa vkSj vf/kdkfj;ksa ds fy,A

vo/k cj ,lksfl;s'ku dh dk;Zdkfj.kh us bl ij fu.kZ; ysus rFkk vkanksyu dks vkxs dh :i js[kk r; djus ds fy, ehfVax djus fu.kZ; ysus dk QSlyk fd;k gSA

Last Updated on Saturday, 25 April 2015 23:13

राजनीति के अपराधीकरण पर अंकुश का अहम फैसला

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fo/kkf;dk o dk;Zikfydk ls iwjh rjg fujk'k gks pqdh vke turk ds fy, mPpre U;k;ky; dk ;g fu.kZ; ?kus va/ksjs esa flYoj ykbfVfuax dh rjg gSA

geus ckj&ckj ;g fy[kk gS fd vc bl ns'k dks rFkk yksdra= dks cpkus ds fy, ek= ,d vk'kk U;k;ikfydk ls gh jg x;h gSA vius yksdfgrdkjh QSlyks ¼tks jktuhfrKksa] usrkvksa] vQljksa ds ywVikV ds fo#) gksrs gSa½ ds dkj.k U;k;kikfydk jktuhfrd nyksa o muds nYyksa dh vka[k dh fdjfdjh cu x;h gSA

gekjs ns'k dh jktuhfr esa vijk/k ,sls ?kqy fey x;k gS tSls ikuh esa vkDlhtuA vkt 99 izfr'kr ny rFkk 98 izfr'kr usrk vijk/kh gSa] ;s ckr vyx gS fd dqN dk vijk/k mtkxj ugha gksrk ftudk mtkxj gks tkrk gS muij dkjZokbZ ugha gksrhA

tSls gh dksbZ ,slk fu.kZ; fdlh Hkh Qksje ls vkrk gS tks bu nyksa o buds usrkvksa ds Hkz"Vkpkj esa ck/kd gksrk gS budks rqjUr mlds nq#i;ksx dh vk'kadk gksus yxrh gS tcfd bu vk'kadkvksa dk dksbZ rkfdZd vk/kkj ugha gksrk gSA

fiNys pUn fnuksa esa dqN ,sls fu.kZ; fofHkUu laLFkkvksa ls vk;s gSa tks bu nyksa dh LosPNkpkfjrk ij yxke yxkus ,oa 'kqfprk LFkkfir djus esa lgk;d gks ldrs gSaA

mPpre U;k;ky; us tks O;oLFkk nh gS mlds vUrxZr nks lky ls vf/kd dh ltk eqdjZj gksrs gh lkalnh o fo/kk;dh rqjar pyh tk;sxhA bl QSlys ls mu usrkvksa dks vo'; jkgr fey x;h gS tks blds vkus ls igys tuizfrfuf/kRo dkuwu dh /kkjk 8¼4½ dk ykHk ik jgs gSaA

bu ;kfpdkvksa ds lkFk&lkFk eq[; pquko vk;qDr dh mPp U;k;ky; iVuk ds vkns'k ds fo#) nk;j fo'ks"k vuqefr ;kfpdk [kkfjt djrs gq, ;g Hkh vo/kkfjr dj fn;k gS fd tks O;fDr tsy esa jgdj ernku ugha dj ldrk og pquko Hkh ugha yM ldrk ftlds dkj.k vc tsy esa jgdj pquko yM us ij Hkh ikcanh yx x;h gSA
jktuhfr dks vijk/khdj.k ls dqN gn rd eqDr djkus okyk ;g QSlyk rhu tufgr ;kfpdkvksa o nks fo'ks"k vuqefr vihy dks fuLrkfjr djrs gq, vk;k gSA nks tufgr ;kfpdk,a 490 lu~ 2005 o 231 lu~ 2005 Øe'k% fyyh Fkkel o ,l-,u 'kqDyk] egklfpo yksd izgjh us tuizfrfuf/kRo dkuwu dh /kkjk 8¼4½ dks valoS/kkfud (ultra vires) ?kksf"kr djus ds fy, mPpre U;k;ky; esa nkf[ky dh Fkh ftldh lquokbZ djrs
gq, ekuuh; U;k;ewfrZ ,-ds- iVuk;d ,oa U;k;ewwfrZ lq/kka'kq T;ksfr eq[kksik/;k; us ;g vfr egRoiw.kZ yksdfgrdkjh fu.kZ; fn;kA bu nks ;kfpdkvksa ds lanHkZ esa gh iVuk mPp U;k;ky; ds vf/koDrk olar dqekj pkS/kjh dh tufgr ;kfpdk la- 690 lu~ 2004 dk fuiVkjk ihB us fd;kA bu ;kfpdkvksa esa ;kfpdkdrkZ fyyh Fkkel dh vksj ls lhfu;j dkSafly Qkyh ,l- ukjheu o yksd izgjh ds egklfpo ,l-,u- 'kqDyk dks rFkk dsUnz ljdkj dh vksj ls ,fM'kuy lkWyhflVj tujy fl)kFkZ ywFkjk ,oa ikjl dqgkn us ihB ds le{k vius rdksZa dks j[kkA vius QSlys esa ihB us ;kfpdk drkZvksa ds rdksZa dks v|r djrs gq, fy[kk gS&

4... "Mr. Nariman cited a Constitution Bench judgment of this Court in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member. Mr. Nariman and Mr. Shukla submitted that sub-section (4) of Section 8 of the Act, insofar as it provides that the disqualification under subsections (1), (2) and (3) of Section 8 for being elected as a member of either House of Parliament or the Legislative Assembly or Legislative Council of State shall not take effect in the case of a person who is already a member of Parliament or Legislature of a State on the date of the conviction if he files an appeal or a revision in respect of the conviction or the sentence within three months till the appeal or revision is disposed of by the Court, is in contravention of the provisions of clause (1) of Articles 102 and 191 of the Constitution.

5. Mr. Shukla referred to the debates of the Constituent Assembly on Article 83 of the Draft Constitution, which corresponds to Article 102 of the Constitution. In these debates, Mr. Shibban Lal Saksena, a member of the Constituent Assembly moved an Amendment No. 1590 on 19.05.1949 to provide that when a person who, by virtue of conviction becomes disqualified and is on the date of disqualification a member of Parliament, his seat shall, notwithstanding anything in this Article, not become vacant by reason of the disqualification until three months have elapsed from the date thereof or, if within those three months an appeal or petition for revision is brought in respect of the conviction or the sentence, until that appeal or petition is disposed of, but during any period during which his membership is preserved by this provision, he shall not sit or vote. Mr. Shukla submitted that this amendment to Article 83 of the Draft Constitution was not adopted in the Constituent Assembly. Instead, in sub-clause (e) of clause (1) of Articles 102 and 191 of the Constitution, it was provided that Parliament may make a law providing disqualifications besides those mentioned in sub-clauses (a), (b), (c) and (d) for a person being chosen as, and for being, a member of either House of Parliament and of the Legislative Assembly or Legislative Council of a State. Mr. Shukla submitted that despite the fact that a provision similar to sub-section (4) of Section 8 of the Act was not incorporated in the Constitution by the Constituent Assembly, Parliament has enacted sub-section (4) of Section 8 of the Act.

6. According to Mr. Nariman and Mr. Shukla, in the absence of a provision in Articles 102 and 191 of the Constitution conferring power on Parliament to make a provision protecting sitting members of either House of Parliament or the Legislative Assembly or the Legislative Council of a State, from the disqualifications it lays down for a person being chosen as a member of Parliament or a State Legislature, Parliament lacks legislative powers to enact sub-section (4) of Section 8 of the Act and subsection (4) of Section 8 of the Act is therefore ultra vires the Constitution. ...

7... He submitted that in B.R. Kapur v. State of T.N. and Another [(2001) 7 SCC 231] a Constitution Bench of this Court reversed the aforesaid judicial view and held that conviction, and the sentence it carries, operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well. He submitted that this later view has been reiterated by a Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC 754]. .... He cited the decision in Navjot Singh Sidhu v. State of Punjab and Another ([2007) 2 SCC 574] in which this Court has clarified that under sub-section (1) of Section 389 of the Code of Criminal Procedure, 1973 power has been conferred on the Appellate Court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction. ...

8. Mr. Nariman and Mr. Shukla submitted that in K. Prabhakaran v. P. Jayarajan etc. (supra) the validity of subsection (4) of Section 8 of the Act was not under challenge and only a reference was made to the Constitution Bench of this Court on certain questions which arose in civil appeals against judgments delivered by the High Court in election cases under the Act. .... They submitted that the opinion expressed by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra) regarding the purpose for which Parliament classified sitting members of Parliament and State Legislatures into a separate category and protected them from the disqualifications by the saving provision in subsection (4) of Section 8 of the Act are obiter dicta and are not binding ratio on the issue of the validity of sub-section (4) of Section 8 of the Act. ..."
;kfpdk drkZvksa ds rdksZa dks dkVus okys ,-,l-th- fl}kFkZ ywFkjk ds dFku dks m|`r djrs gq, ihB us dgk&

"10. Mr. Siddharth Luthra, learned ASG appearing for the Union of India in Writ Petition (C) 231 of 2005, submitted that the validity of sub-section (4) of Section 8 of the Act has been upheld by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra). He submitted that while answering question no.3, the Constitution Bench has held in Prabhakaran’s case that the purpose of carving out a saving in sub-section (4) of Section 8 of the Act is not to confer an advantage on sitting members of Parliament or of a State Legislature but to protect the House. ...

11. Mr. Luthra next submitted that the reality of the Indian judicial system is that acquittals in the levels of the Appellate Court such as the High Court are very high and it is for this reason that Parliament has provided in subsection (4) of Section 8 of the Act that disqualification pursuant to conviction or sentence in the case of sitting members should stand deferred till the appeal or revision is decided by the Appellate or the Revisional Court. ..."
ihB us ,-,l-th- ikjl dqgkn dh cgl dks m/k`r djrs gq, dgk&

"12. Mr. Paras Kuhad, learned ASG, appearing for the Union of India in Writ Petition (C) No.490 of 2005 also relied on the judgment of the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra) on the validity of sub-section (4) of Section 8 of the Act and the reasoning given in the answer to question no.3 in the aforesaid judgment of this Court. ...He also referred to the provisions of Articles 101(3)(a) and 190 (3)(a) of the Constitution to argue that a member of Parliament or a State Legislature will vacate a seat only when he becomes subject to any disqualification mentioned in clause (1) of Article 102 or clause (1) of Article 191, as the case may be, and this will happen only after a decision is casino online taken by the President or the Governor that the member has become disqualified in accordance with the mechanism provided in Article 103 or Article 192 of the Constitution.

13. Mr. Kuhad further submitted that Mr. Nariman is not right in his submission that the remedy of a sitting member who is convicted or sentenced and gets disqualified under sub-sections (1), (2) or (3) of Section 8 of the Act is to move the Appellate Court under Section 389 of the Code of Criminal Procedure for stay of his conviction. He submitted that the Appellate Court does not have any power under Section 389, Cr.P.C. to stay the disqualification which would take effect from the date of conviction and therefore a safeguard had to be provided in subsection (4) of Section 8 of the Act that the disqualification, despite the conviction or sentence. ..."
nksuks i{kksa ds rdksZa dks lquus ds ckn ihB us viuh Finding nsrs gq, fy[kk&

"14. We will first decide the issue raised before us in these writ petitions that Parliament lacked the legislative power to enact sub-section (4) of Section 8 of the Act as this issue was not at all considered by the Constitution Bench of this Court in the aforesaid case of K. Prabhakaran (supra). In The Empress v. Burah and Another [(1878) 5 I.A. 178] the Privy Council speaking through Selborne J. laid down the following fundamental principles for interpretation of a written constitution laying down the powers of the Indian Legislature:

“The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it; and it can, of course, do nothing beyond the limits which circumscribes these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.”

The correctness of the aforesaid principles with regard to interpretation of a written constitution has been reaffirmed by the majority of Judges in Kesavananda Bharti v. State of Kerala (AIR 1973 SC 1465) (See the Constitutional Law of India, H.M. Seervai, Fourth Edition, Vol.I, para 2.4 at page 174). Hence, when a question is raised whether Parliament has exceeded the limits of its powers, courts have to decide the question by looking to the terms of the instrument by which affirmatively, the legislative powers were created, and by which negatively, they are restricted....

15. Article 248 similarly provides that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List (List III) or State List (List II) of the Seventh Schedule of the Constitution. Therefore, Article 246(1) read with Entry 97 and Article 248 only provide that in residuary matters (other than matters enumerated in List II and List III) Parliament will have power to make law. To quote from Commentary on the Constitution of India by Durga Das Basu (8th Edition) Volume 8 at page 8988:

“In short, the principle underlying Article 248, read with Entry 97 of List I, is that a written Constitution, which divides legislative power as between two legislatures in a federation, cannot intend that neither of such Legislatures shall go without power to legislate with respect of any subject simply because that subject has not been specifically mentioned nor can be reasonably comprehended by judicial interpretation to be included in any of the Entries in the Legislative Lists. To meet such a situation, a residuary power is provided, and in the Indian Constitution, this residuary power is vested in the Union Legislature. Once, therefore, it is found that a particular subject-matter has not been assigned to the competence of the State Legislature, “it leads to the irresistible inference that (the Union) Parliament would have legislative competence to deal with the subject matter in question.”....

We may note that no power is vested in the State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of members of the Legislative Assembly or Legislative Council of the State. For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1) (e) and 191(1)(e) of the Constitution and not in Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr. Luthra that the power to enact sub-section (4) of Section 8 of the Act is vested in Parliament under Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and 248 of the Constitution, if not in Articles 102 (1)(e) and 191 (1)(e) of the Constitution. ...

16. In the language of the Constitution Bench of this Court in Election Commission, India v. Saka Venkata Rao (supra), Article 191(1) [which is identically worded as Article 102(1)] lays down “the same set of disqualifications for election casino online as well as for continuing as a member”. Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature. To put it differently, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same. ....

19. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.

20. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section
(4) of Section 8 of the Act and accordingly subsection(4) of Section 8 of the Act is ultra vires the Constitution. ...

22. As we have held that Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution, it is not necessary for us to go into the other issue raised in these writ petitions that subsection (4) of Section 8 of the Act is violative of Article 14 of the Constitution. ...

23. The only question that remains to be decided is whether our declaration in this judgment that sub-section (4) of Section 8 of the Act is ultra vires the Constitution should affect disqualifications already incurred under subsections (1), (2) and (3) of Section 8 of the Act by sitting members of Parliament and State Legislatures who have filed appeals or revisions against their conviction within a period of three months and their appeals and revisions are still pending before the concerned court. Under subsections (1), (2) and (3) of Section 8 of the Act, the disqualification takes effect from the date of conviction for any of the offences mentioned in the sub-sections and remains in force for the periods mentioned in the subsections. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under sub-section (1), or sub-section (2) or sub-section (3) of Section 8 of the Act. In Golak Nath and Others vs. State of Punjab and Another (AIR 1967 SC 1643), Subba Rao, C.J. speaking on behalf of himself, Shah, Sikri, Shelat and Vaidialingam, JJ. has held that Articles 32, 141, 142 of the Constitution are couched in such a wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice and has further held that this Court has the power not only to declare the law but also to restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise, that were effected on the basis of the earlier law. Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court. As has been observed by this Court in Harla v. State of Rajasthan (AIR 1951 SC 467):

“……..it would be against the principles of natural justice to permit the subjects of a State to be punished or penalized by laws of which they had no knowledge and of which they could not even with exercise of due diligence have acquired any knowledge.”

However, if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence."

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bu vihyksa dks fuLrkfjr djrs gq, ekuuh; mPpre U;k;ky; us dgk&

"5. Writ petitions C.W.J.C. No.4880 of 2004 and C.W.J.C. No.4988 of 2004 were filed in the Patna High Court contending that a person, who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police is not entitled to vote by virtue of sub-section (5) of Section 62 of the 1951 Act and accordingly is not an “elector” and is, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951 Act. By the impugned common order, the High Court accepted this contention in the writ petitions and held:

“A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.”

6. Aggrieved, by the findings of the High Court, the appellants have filed these appeals. We have heard learned counsel for the parties and we do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State."

mPpre U;k;ky; ds nwjxkeh izHkko okys ml QSlys dk fojks/k dsoy os usrk ;k ny gh djsaxs ftudk otwn vijkf/k;ksa ij fVdk gS rFkk tks jktuhfr ds vijk/khdj.k ds i{k/kj gksaxs D;ksafd ;g QSlyk yksdra= esa tu vkLFkk dks cgky djus rFkk jktuhfr ds vkijk/khdj.k ij izHkkoh vadq'k yxkus okyk gS tks dke jktuhfrd nyksa us vktrd ugha fd;kA

Last Updated on Sunday, 03 May 2015 14:48

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yksdlHkk ds vklUu pquko ij mPpU;k;ky; ds bl vkns'k ls jktuhfrd nyksa esa [kklh cspSuh gSA ihB us ;g Lohdkj fd;k gS fd tkfrxr jSfy;ksa ls lekt caVrk gS tks lafo/kku dh ewy Hkkouk ds f[kykQ gSA dsUnzh; lwpuk vk;ksx] mPpre U;k;ky; ds QSlyksa ds ckn jktuhfrd nyksa@usrkvksa dks ;g rhljk tksj dk >Vdk gS tks /khjs ls u yx dj tksj ls gh yxk gSA
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;kfpdkdrkZ vf/koDrk eksrhyky ;kno us ;kfpdk esa vkjksi yxk;k gS fd bu tkfrxr jSfy;ksa ls lkekftd rkuk&ckuk rks fNUu&fHkUu gks gh jgk gS blls de la[;k okyh tkfr;ksa dh mis{kk Hkh gksxh tks lafo/kku dh Hkkouk ds vuqdwy ugha gSA ;kfpdk drkZ ds bu rdksZa dk laKku ysrs gq, [k.M ihB us ekuk fd izkphu dky esa tks o.kZ O;oLFkk ds rgr tkfr O;oLFkk Fkh og deZ vk/kkfjr Fkh] tkfr deZ.kk Fkh ftlls lekt esa ,d lkekftd lejlrk (Social Harmony) fodflr gksrh En de winnaar is…Als we nu een prijs voor het beste iDeal beste casino info zouden moeten uitreiken, dan komt Kroon Casino als het beste beste casino info uit de bus. Fkh ysfdu vkt ,slk ugha gSA vkt bldk fod`r :i lkeus vk x;k gS tks lekt ds fy, vfgrdj gSA ihB us vkxs dgk gS fd U;k;ky; lnSo gh dkuwu ds 'kklu dh loksZPprk ,oa ukxfjdksa ds ekSfyd online casino vf/kdkjksa dh j{kk dk i{k/kj jgk gS ftlesa ;s tkfrxfr jSfy;ka ck/kd gS rFkk ftldh btktr fn;k tkuk u flQZ lafo/kku dh ewy Hkkouk ds fo#) gS cfYd oS'ohdj.k ds bl nkSj esa vrkfrZd Hkh gksxkA vius bUgha vadq'k yxkus okys vkns'kksa ds dkj.k U;k;ikfydk lnSo gh usrkvksa dh vka[k dh fdjfdjh cuh jgrh gS os dHkh Hkh ,sls yksdfgrdkjh  vkns'kksa@QSlyksa dk Lokxr eu ls ugha djrsA ;gh dkj.k gS fd ^pksj pksjh ls tk; gsjk Qsjh ls u tk;* dh rtZ ij gj le; dksbZ u dksbZ ok;k ehfM;k [kkstus yxrs gSA bldk Toyar mnkgj.k gS ek;korh dk ;g dguk fd vc ge loZlekt dh jSyh djsaxsA ;g ,d vdkV~; lR; gS fd flQZ dkuwu cuk nsus ;k vnkyrksa }kjk vkns'k ikfjr dj nsus Hkj ls dke pyus okyk ugha gS cfYd blds fy, turk dks] lekt dks Lo;a vkxs vkuk gksxk D;ksafd vnkyrh vkns'k ;k dkuwu muds fy, lgk;d gksaxs dkjd ughaA vktknh ds 66 o"kksZa esa bl ns'k ds usrkvksa us flQZ viuk o vius ifjokj dk Hkyk fd;k gS fdlh iwjh tkfr dk ughaA bu o"kksZa ds buds dk;Zdykiksa dk fo'ys"k.k fd;k tk; rks ,d ckr cgqr Li"V :i ls lkeus vkrh gS fd oksV rks ;s usrk@ny tkfr ds uke ij ekaxs o cVksjs ysfdu Hkyk dsoy vius ifjokj o fj'rsnkjksa dk gh fd;kA bl yksdfgrdkjh vkns'k dk vafre ifj.kke D;k gksxk ;g rks vHkh ge ugha tkurs ysfdu bruk rks vko'; gqvk fd tufgr@lektfgr esa ,d ckj fQj U;k;ikfydk us igy djds fdlh 'kk;j ds ml 'ksj dks pfjrkFkZ dj fn;k fd%

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,d iRFkj rks rfc;r ls mNkyks ;kjksAA

Last Updated on Thursday, 05 March 2015 23:01

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