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Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice,opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct PRE |
Their appointment is in the first instance for one year PRE |
It is only after their satisfactory performance during that period that a deed of engagement is given to them,and even then the engagement is to be for a term not exceeding three years PRE |
The renewal of their further term again depends upon the quality of work and conduct,capacity as a lawyer,professional conduct,public reputation in general,and character and integrity as certified by the District Magistrate and the District Judge PRE |
For the said purpose,the District Magistrate and the District Judge are required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work PRE |
His work is also subject to strict supervision PRE |
The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer PRE |
It will thus be seen that the appointment of the two sets of officers,viz.,the Government Counsel in the High Court with whom we are concerned,and the District Government Counsel with whom the said decision was concerned,are made by dissimilar procedures PRE |
The latter are not appointed as a part of the spoils system PRE |
Having been selected on merit and for no other consideration,they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons PRE |
The people are interested in their continuance for the period of their contracts and in their non-substitution by those who may come in through the spoils system PRE |
It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Art.14 of the Constitution PRE |
The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Art.14 of the Constitution as pointed out above"[Emphasis added PRE |
In Parshotam Lal Dhingra 1957 Indlaw SC 103 PRE |
supra),this Court held that whoever holds civil posts would be entitled to protection of their services in terms of Cl.(2) of Art.309 of the Constitution of India in the event any disciplinary action is taken against them stating: "The underlying idea obviously is that a provision like this will ensure to them a certai... |
Cl.(2) protects government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them PRE |
It will be noted that in cl.(1) the words dismissed and removed have been used while in cl.(2 PRE |
the words dismissed removed and reduced in rank have been used PRE |
The two protections are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made,and (2) against being dismissed,removed or reduced in rank without being heard PRE |
What,then,is the meaning of those expressions dismissed removed or reduced in rank PRE |
It has been said in Jayanti Prasad v PRE |
State of Uttar Pradesh 1951 Indlaw ALL 27 that these are technical words used in cases in which a persons services are terminated by way of punishment PRE |
Those expressions,it is urged,have been taken from the service rules,where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of Art PRE |
In Dhirender Singh and Others v PRE |
State of Haryana and Others [(1997) 2 SCC 712 1996 Indlaw SC 1725],termination of an order of promotion in favour of the appellant was not interfered with by this Court as the same had not been approved by the DIG,being the competent authority PRE |
In M.C.Mehta v PRE |
Union of India and Others [(1999) 6 SCC 237 1999 Indlaw SC 1396],this Court developed the "useless formality" theory stating: "More recently Lord Bingham has deprecated the useless formality theory in R.v PRE |
Chief Constable of the Thames Valley Police Forces,ex p Cotton by giving six reasons.(See also his article Should Public Law Remedies be Discretionary PRE |
1991 PL,64 PRE |
A detailed and emphatic criticism of the useless formality theory has been made much earlier in Natural Justice,Substance or Shadow by Prof.D.H.Clark of Canada (1975 PL,27 63) contending that Malloch and Glynn were wrongly decided PRE |
Foulkes,Craig and others say that the court cannot prejudge what is to be decided by the decision-making authority.de Smith says courts have not yet committed themselves to any one view though discretion is always with the court PRE |
Wade says that while futile writs may not be issued,a distinction has to be made according to the nature of the decision PRE |
Thus,in relation to cases other than those relating to admitted or indisputable facts,there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a real likelihood of success or if he is en... |
We may,however,point out that even in cases where the facts are not all admitted or beyond dispute,there is a considerable unanimity that the courts can,in exercise of their discretion,refuse certiorari,prohibition,mandamus or injunction even though natural justice is not followed PRE |
We may also state that there is yet another line of cases as in State Bank of Patiala v PRE |
S.K.Sharma,Rajendra Singh v PRE |
State of M.P.1994 Indlaw MP 48 that even in relation to statutory provisions requiring notice,a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest PRE |
In the former case,it can be waived while in the case of the latter,it cannot be waived PRE |
In Kendriya Vidyalaya Sangathan 2002 Indlaw SC 287 (supra),it was held: "It is clear that if after the termination of services of the said Dr PRE |
K.C.Rakesh,the orders of appointment are issued,such orders are not valid PRE |
If such appointment orders are a nullity,the question of observance of principles of natural justice would not arise PRE |
In Bar Council of India v PRE |
High Court of Kerala [(2004) 6 SCC 311 2004 Indlaw SC 340],it was stated: "Principles of natural justice,however,cannot be stretched too far PRE |
Their application may be subject to the provisions of a statute or statutory rule PRE |
In R.S.Garg v PRE |
State of U.P.and Others [(2006) 6 SCC 430 2006 Indlaw SC 801],it was stated: "A discretionary power as is well known cannot be exercised in an arbitrary manner PRE |
It is necessary to emphasize that the State did not proceed on the basis that the amendment to the Rules was not necessary PRE |
The action of a statutory authority,as is well known,must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor PRE |
The same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise PRE |
For the reasons aforementioned,the impugned judgments cannot be sustained RPC |
They are set aside accordingly RPC |
The appeals are allowed RPC |
No costs RPC |
Appeal allowed RPC |
Ujjagar Singh, the appellant herein, a resident of village Bangawali, Tehsil Malerkotla, was tried and convicted by the Additional Sessions Judge, Sangrur for the murder of his niece Mukhtiar Kaur and was awarded the death penalty FAC |
In addition, he was convicted for an offence punishable u/s FAC |
376 of the IPC and sentenced to undergo rigorous imprisonment for 10 years and to a fine of Rs.5, 000/- and in default of payment to undergo further R.I. for one year and u/s FAC |
309 of the IPC to a sentence of simple imprisonment for one year FAC |
The aforesaid convictions and sentences have been maintained by the High Court and the matter is before us in these proceedings by way of special leave FAC |
The facts of the case are as under FAC |
At about 2.00 p.m. on 10th November 2002 a boy whose identity is not forthcoming, informed Satnam Singh PW2 that an incident of firing had taken place in the house of Ujjagar Singh situated in the fields on the outskirts of the village FAC |
Satnam Singh conveyed this information to Sarpanch Jora Singh PW1 who was attending a marriage at that time FAC |
Jora Singh accompanied by Gurdeep Singh PW3 thereupon rushed to Ujjagar Singh's house and found Mukhtiar Kaur lying dead with a gun shot injury and the appellant also with a gun shot injury lying unconscious on the ground in the adjoining room FAC |
Jora Singh and Gurdeep Singh immediately removed Ujjagar Singh to the Civil Hospital, Dhuri in the jeep belonging to Kulwant Singh PW4 FAC |
Jora Singh also met Inspector Harjinder Pal Singh PW14 at 4.40 p.m. near the hospital, who recorded his statement at that place and with his endorsement Ex FAC |
P.A. sent it to Police Station, Dhuri where the formal FIR was registered at about 4.45 p.m. with the special report being delivered to the Illaka Magistrate at Dhuri itself at 6.20 p.m. the same evening FAC |
The facts as narrated were that Arjan Singh of village Bangawali had three sons Puran Singh, Ujjagar Singh (appellant) and Ajmer Singh FAC |
Puran Singh had died about 20 years earlier leaving behind his wife, two sons and a daughter Mukhtiar Kaur FAC |
The two sons and the wife also died long before the incident and Mukhtiar Kaur the sole surviving member of this branch of the family had been married to Balwinder Singh PW9 about 9 or 10 years earlier FAC |
Puran Singh had however transferred 30 or 35 bighas of agricultural land falling to his share after the death of his father in the name of the appellant's sons by a collusive decree in the year 1994 and the suggestion was that this transaction had been objected to by Mukhtiar Kaur who was demanding that the land be ret... |
It appears that Mukhtiar Kaur's relations with her in-laws had got strained and she had left her matrimonial home and come to live with Ujjagar Singh, her uncle, 7 or 8 months earlier and the suggestion was that Mukhtiar Kaur had been killed by the appellant with his licensed gun and he had thereafter attempted to comm... |
Having recorded the aforesaid facts in the FIR, PW14 Inspector Harjinder Pal Singh reached the place of incident and lifted one spent 12 bore cartridge case (Shaktiman make) from near Mukhtiar Kaur's dead body and one DBBL gun from the place where Ujjagar Singh appeared to have been shot and another spent cartridge cas... |
After completion of the investigation at the spot, Mukhtiar Kaur's dead body was sent for its post-mortem examination FAC |
The post-mortem examination was also conducted by PW5 Dr. Ishwar Singh, Medical Officer, Civil Hospital along with Dr. Harwinder Kaur PW17 and it was found that Mukhtiar Kaur had two gunshot injuries on her dead body, a wound of entry on the back of right side of chest 2 cm x 1 cm with margining and blackening and a c... |
Dr. Harwinder Kaur aforesaid also took swabs from the vagina of the deceased and as per the chemical examiner's report dated 2.1.2003 semen was found on the swab taken from the vagina and from the underwear that Mukhtiar Kaur had been wearing at the time of her death FAC |
The weapon and the recovered cartridge cases had also been sent to the Forensic Science Laboratory which in its report dated 4.8.2004 opined that the crime cartridge case CI 'could' have been fired by the right barrel of the weapon whereas the crime cartridge case C2 'had been' fired from the right barrel FAC |
On the completion of the investigation, a charge-sheet under sections 302, 376 and 309 of the IPC was filed against the accused and as he pleaded not guilty he was brought to trial FAC |
During the trial Jora Singh PW1, Satnam Singh PW2, Gurdeep Singh PW3 and Kulwant Singh PW4 resiled from their statements given to the police and were declared hostile FAC |
Balwinder Singh PW9, however, supported the prosecution case deposing that the land had in fact been got transferred from Gurmail Kaur, mother of Mukhtiar Kaur to Ujjagar Singh by fraud and Mukhtiar Kaur was therefore entitled to its return FAC |
He also deposed that Mukhtiar Kaur had told him some time earlier that the accused had been beating her and had also committed sexual intercourse with her and that at about 11 p.m. on 10.11.2002 Karam Singh PW10 had informed him as to what had transpired on which he along with his father Hamir Singh PW12 and several ot... |
PW10 Karam Singh aforesaid confirmed the story given by Balwinder Singh FAC |
The prosecution also relied on the statements of Dr. Vijay Kumar PW6 of the Civil Hospial, Dhuri who testified that the appellant had been brought to the hospital at about 2.45 p.m. on 10.11.2002 with a serious gun shot injury, Dr. Ripan Miglani PW15 of the Dayanand Medical College & Hospital, Ludhiana who deposed that... |
The prosecution also placed reliance on the statement of ASI Jasbir Singh PW11 who had accompanied Inspector Harjinder Pal Singh PW14 to the place of incident and supported the recoveries made from the spot FAC |
The prosecution case was then put to the accused and his statement recorded u/s FAC |
313 of the Cr Ratio |
P.C FAC |
In reply to question 33 he stated as under: "I am innocent FAC |
I have been implicated falsely in this case FAC |
I was treating Mukhtiar Kaur as my daughter and loved her as my daughter FAC |
False allegations have been levelled against me FAC |
I never harassed Mukhtiar Kaur nor ever got her land mutated from her mother by fraud FAC |
I have not killed Mukhtiar Kaur FAC |
Mother of Mukhtiar Kaur got the land mutated by her own free will and Mukhtiar Kaur had no dispute about it FAC |
Balwinder Singh her husband was addicted to vices and used to beat her due to which she used to remain under depression and sick generally, and used to come to me as my daughter FAC |
My house (kothi) is situated on the outer skirts of village Bangawali and door (planks) had not been fixed so far to rooms FAC |
Some body suddenly came and fired at me FAC |
I fell down on the ground and became unconscious FAC |
Therefore, I could not see what had happened to Mukhtiar Kaur as she was in other room FAC |
Later on I came to know that some body had fired at her and she died FAC |
I regained consciousness in hospital FAC |
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