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2003 (11) TMI 612
Entitlement of Professors to an additional increment under the revised pay scales - Interpretation of Rules 8(1) (a) and (b) of the Orissa Revised Scales of Pay Rules, 1985 ('Rules') - HELD THAT:- It is not disputed that the revised pay scale of the Professors was ₹ 1500-2500 and the appellants were getting ₹ 2927 and after revision they were required to be placed on the minimum of the scale, which was admittedly more than what they had been getting prior to the revision of the pay scale.
A bare perusal of the Rule would clearly show that fixation of pay in the revised scale of pay would be governed by the said Rule. Clauses (a) and (b) of sub-rule (1) of Rule 8 contemplate two different situations. In a case where the minimum of the revised scale is less than the existing emolument, the concerned employee will get at least the minimum scale of pay as is provided in clause (a) thereof or if there is no such stage of the existing emoluments then it shall be fixed at the stage next above the existing emoluments. The exception clause contained therein is referable only to a situation occurring in clause (b) and not to clause (a). If the exception is held to cover both the situations contemplated under clauses (a) and (b) of sub-rule (1) of Rule 8 for all intent and purport, sub-rule (a) shall become meaningless.
It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J in the case of Aswini Kumar Ghose v. Arabinda Bose,[1952 (10) TMI 32 - SUPREME COURT] had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplausage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.
The principle of liberal interpretation which is applied in case of an beneficent legislation has no application in the instant case inasmuch as by reason of Rule 8 of the said Rules, the State had merely specified the mode and manner of application thereof. The same was necessary having regard to the difficulty which may cause to the employees who might have been receiving higher emoluments than the minimum prescribed under the revised pay scale at a point of time when the revised pay scale came into force. Furthermore, clauses (a) and (b) having regard to the rule of the punctuation must be read separately.
In that view of the matter, we are of the view that there being no ambiguity in Rule 8 (1) (a), the writ petitioners were only entitled to the minimum of the revised scale. Thus, the appeals deserve to be allowed. The judgments under challenge are set aside.
The appeals are allowed. There shall be no order as to costs.
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2003 (11) TMI 611
Challenged the decision taken by the Government of Orissa to revise with effect from back date the terms for making available raw material - Violation of the principle of promissory estoppel - HELD THAT:- The High Court has rightly discarded this plea. To attract the applicability of the principle of estoppel it is not necessary that there must be a contract in writing entered into between the parties. We are not satisfied even prima facie that it was a case of an error committed by the State Government of which it was not aware. The State of Orissa should have, while holding out the representation, taken into consideration the fact-who will have to do re- plantation and that the permission of the Government of India would be needed for the purpose. The State cannot take advantage of its own omission. The State Government having persuaded the respondent to establish an industry and respondent having acted on the solemn promise of the state Government, purchased the raw material at a fixed price and also sold its products by pricing the same taking into consideration the price of raw material fixed by the State Government and supplied, the State Government cannot be permitted to revise the terms for supply of raw material adversely to the interest of the respondent and effective from a back date and place the respondent in a situation which it will not be able to resolve. The respondent could not have revised their price from a back date and recovered it from innumerable consumers to whom their finished products were supplied at a fixed price.
No fault can be found with the view taken by the High Court. The appeal is devoid of any merit and is dismissed. The interim order dated 17.2.1997 passed by this Court stands vacated. The State Government shall implement the judgment of the High Court expeditiously.
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2003 (11) TMI 610
The Supreme Court condoned the delay, admitted the appeal, and stated that any action based on the impugned circular by the respondent will be subject to the result of these appeals. Civil Appeal Numbers arising from S.L.P. (C) Nos. 3334-3338 of 2002 are tagged with this order.
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2003 (11) TMI 609
The Supreme Court dismissed the appeals with liberty to file after the rectification application is disposed off.
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2003 (11) TMI 608
Issues:
Challenge to detention order under COFEPOSA Act based on non-production of vital document before Detaining Authority.
Analysis:
The writ petition challenges the detention order passed under the COFEPOSA Act by the Detaining Authority. The detenu was found with 34 gold bars upon arrival from Dubai, leading to her arrest. Subsequent statements and retractions were made by the detenu regarding her involvement in smuggling activities. The petition argues that a crucial handwritten retraction dated 2nd December 2002, not produced before the Detaining Authority, vitiates the detention order. The petitioner asserts that under Article 22(5) of the Constitution, all necessary documents must be presented to the Detaining Authority for a meaningful opportunity to make a representation.
The Detaining Authority, in forming the decision to detain the individual, considered the detenu's past conduct and activities, concluding that she had a high potential for future smuggling activities. The Detaining Authority found no merit in the detenu's retractions and allegations, emphasizing the importance of material placed before it. However, it was revealed that a crucial second retraction made by the detenu before the Magistrate was not presented before the Detaining Authority, impacting the decision-making process.
Legal precedents were cited by the petitioner, emphasizing the significance of presenting all relevant documents before the Detaining Authority for a fair decision-making process. The judgments highlighted the importance of considering all relevant evidence and the potential impact of omitted materials on the detention order's validity. The Detaining Authority's failure to consider the second retraction dated 2nd December 2002 was deemed as a critical omission that invalidated the detention order.
The Detaining Authority's assertion that the second retraction was not vital and would not have affected the decision was countered by legal arguments emphasizing the necessity of presenting all vital materials for a fair and just detention process. The court held that the non-consideration of the second retraction document significantly impacted the validity of the detention order. Consequently, the rule was made absolute, directing the detenu's immediate release unless required otherwise under lawful authority.
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2003 (11) TMI 607
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... ... ..... Petition and other connected papers. We find no merit in this petition. It is accordingly dismissed.
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2003 (11) TMI 606
Determination of the cost of acquisition/indexed cost of acquisition for the purpose of computing the capital gain - transfer of land - cost of acquisition of the land - point of time and consideration for the transfer of land - Indexed cost of acquisition for long-term capital assets - HELD THAT:- The combined reading of collaboration agreement clauses, in our opinion, clearly shows that 56 per cent of the built-up area including land will be retained by the assessee and 44 per cent shall be retained by the builder. As per clause 21, the ultimate effect of the transfer of land would be that each flat owner would own his respective right in the land whether it is transferred to each flat owner or to the cooperative society or in other status of the flat owners.
The lawn could not have been transferred without the ownership of the land. Therefore, considering the entire facts, it cannot be said by any logic that the entire land was transferred by the assessee. In our considered opinion, what was transferred under the collaboration agreement by the assessee to the builder was only 44 per cent of land owned by them in consideration of 56 per cent of the built-up area and not entire land as contended by the learned counsel for the assessee. Consequently, it has also to be held that in year under consideration, the assessees not only transferred the flats but also the proportionate land.
Point of time and consideration for the transfer of land - We have been informed that possession of flats was given in financial year 1991-92 though no material is placed before us. Assuming the same to be correct, it is held that there was simultaneous transfer of possession of 44 per cent of land by the assessees to the builders and possession of 56 per cent of built-up area by the builder to the assessees in financial year 1991-92 in terms of section 2(47) of the Income-tax Act, 1961 read with section 53A of Transfer of Property Act. Hence, the contention of the assessee’s counsel that land was transferred on the date of collaboration agreement is rejected.
As far as consideration part is concerned, we are of the considered opinion that consideration for the transfer of 44 per cent land was the cost of construction of 56 per cent built-up area which was to be incurred by the builder. This very sum would also amount to investment by assessee in the construction of flats and, therefore, the cost of construction of the flats by the builder would also amount to the cost of acquisition of the flats by assessees.
Thus, it is clear that in the year under consideration, there was transfer of not only the flats as superstructure but also the proportionate land inasmuch as 56 per cent of the land was retained by the assessee under the collaboration agreement. So we are in agreement with the alternate contention of the assessee’s counsel that it was a sale of improved asset and consequently, cost of acquisition would include the cost of flats as well as cost of land.
As far as cost of flat is concerned, we have already observed that it would be equal to the cost of construction of 56 per cent of the built up area. The reason is obvious. The sale consideration of 44 per cent land was in kind and, therefore, it also amounted to investment in the construction of built-up area. Hence, the same will be taken as cost of acquisition of flats after examining the record of the builder.
As far as cost of acquisition of land is concerned, Admittedly, this property was purchased by the ancestors of the co-owners in 1947 and the co-owners inherited the same. Therefore, the value of land has to be taken as on 1-4-1981. No exercise has been made for determining the cost of acquisition of land as on 1-4-1981. While computing such value, the provisions of ULCA would also had to be taken into consideration as such provisions were in force on that date. However, on this aspect, we are not in agreement with the finding of the CIT(A) that the value of the land as declared u/s 7(4) of the Wealth-tax Act should be adopted since, in our opinion, such value is a frozen value for the purpose of section 7(4) and does not represent the market value as on 1-4-1981. The Assessing Officer as well as CIT(A) had, therefore, grossly erred in adopting such valuation as market value as on 1-4-1981.
Indexed cost of acquisition, we may point out that indexing is allowed only with reference to long-term capital assets. We are concerned with the property comprising of two different capital assets acquired at different point of time. As far as land is concerned, admittedly, it is long term capital asset and consequently, cost of acquisition which may be determined by the Assessing Officer as per our direction would further be enhanced as per the rule of indexation. However, there is some confusion regarding the date of acquisition of 56 per cent built up area. As pointed out earlier, we are informed by the learned counsel for the assessee that possession of flats were taken in financial year 1991-92 but there is no material before us in support of the same. This will be verified by the Assessing Officer and then determining the period of holding. If it is found that it is long-term capital asset then indexed cost would also be determined otherwise no indexation would be allowed.
Thus, the orders of the CIT(A) are modified and the matter is restored to the file of Assessing Officer for determination of the cost of acquisition/indexed cost of acquisition and also the capital gain assessable to tax in accordance with the directions given by us.
In the result, both the appeals are partly allowed.
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2003 (11) TMI 605
Suit for recovery of possession - allegation of taking wrongful and forcible possession - admissibility and evidentiary value of rent receipts - HELD THAT:- As seen from the record, it was pleaded in the plaint that certain blank stamp papers thumb marked and signed by the plaintiff were given to the defendant authorising him to represent them in various pending litigations. Even after the specific plea in the written statement of the defendant claiming status of a tenant on the basis of rent receipts, the pleadings in the plaint were not amended by the plaintiff to explain how on back of printed rent receipt, he happened to put his signatures. No consequential amendment was made in the plaint taking a plea of fraud and forgery of rent receipt. There is also no evidence to that effect.
We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as an admitted documents. We have already reproduced above the contents of the order no. 53 dated 3.9.82 of the trial court. The appellant cannot be allowed to question the correctness of the said under. The documents were admitted and then exhibited. The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.
The High Court rightly took a view that in face of the specific plea of tenancy by the tenant based on rent receipts, onus of proof, in fact, lay on the plaintiff to explain how blank printed rent receipts came to be signed by him on their back portions. We have extracted above the relevant pleadings in the plaint. The plaintiff failed to lead any evidence to show what were those pending litigations and what was the occasion and necessity to sign printed blank receipts at their back by the plaintiff.
The High Court being the first court of appeals was fully within its powers to re-examine and re-appreciate the documentary and oral evidence. It could come to a conclusion contrary to the one reached by the trial court. As discussed, we find that the High Court was fully justified in taking a contrary view as it did and upsetting the judgment of the trial court resulting in dismissal of the suit. In the result, the appeal fails and is, accordingly, dismissed but in the circumstances, we leave the parties to bear their own costs in this appeal.
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2003 (11) TMI 604
Issues Involved:
1. Taxability of the amount remitted for services rendered outside India.
2. Interpretation and applicability of Section 9(1)(vii) in conjunction with Section 9(1)(i) of the Income-tax Act.
3. The relevance of the situs of services for taxability under Section 9(1)(vii).
4. The legislative intent behind the insertion of Section 9(1)(vi) and (vii) by the Finance Act, 1976.
5. The principle of harmonious construction in interpreting tax statutes.
Detailed Analysis:
Issue 1: Taxability of the amount remitted for services rendered outside India.
The assessee contended that the amount remitted to Raytheon for updating the Techno Economic Feasibility Report was for services rendered outside India and hence not taxable in India. The Assessing Officer, however, directed the assessee to deduct tax at 20% as per the Double Taxation Avoidance Agreement (DTAA) with the USA. The Commissioner of Income-tax (Appeals) upheld this decision, stating that the situs of services had no bearing on taxability under Section 9(1)(vii) of the Act. The Tribunal confirmed that the fees for technical services paid to non-residents are taxable in India, irrespective of where the services were rendered.
Issue 2: Interpretation and applicability of Section 9(1)(vii) in conjunction with Section 9(1)(i) of the Income-tax Act.
The assessee argued that Section 9(1)(vii) should not be read independently of Section 9(1)(i), as doing so would lead to an absurd result. They contended that since no operations were carried out by the non-residents in India, no portion of the technical fees could be deemed to accrue or arise in India under Section 9(1)(i). The Tribunal rejected this argument, stating that Section 9(1)(vii) is an independent provision and does not require a business connection in India for the fees to be taxable.
Issue 3: The relevance of the situs of services for taxability under Section 9(1)(vii).
The Tribunal agreed with the CIT(A) that the situs of services is irrelevant for taxability under Section 9(1)(vii). The Explanation 2 to Section 9(1)(vii) defines fees for technical services, and the location where the services are rendered does not impact their taxability in India. The Tribunal emphasized that the income is deemed to accrue or arise in India if the fees for technical services are paid by an Indian resident, regardless of where the services are utilized.
Issue 4: The legislative intent behind the insertion of Section 9(1)(vi) and (vii) by the Finance Act, 1976.
The assessee argued that Sections 9(1)(vi) and (vii) were inserted for administrative convenience and should be read as part of Section 9(1)(i). The Tribunal disagreed, stating that the Legislature consciously categorized these specific types of income separately to address administrative difficulties and uncertainties. The Tribunal noted that the Finance Minister's Budget Speech for the assessment year 1976-77 supported this interpretation, as it highlighted the need to simplify the taxation of foreign companies.
Issue 5: The principle of harmonious construction in interpreting tax statutes.
The Tribunal acknowledged the principle of harmonious construction, which aims to avoid conflicts between different provisions of a statute. However, the Tribunal found no ambiguity in the plain language of Section 9(1)(vii) that would necessitate such an interpretation. The Tribunal emphasized that each category of income under Section 9 is independent and does not rely on other categories for its applicability. The Tribunal concluded that Section 9(1)(vii) is a standalone provision that does not require a business connection in India for the fees for technical services to be taxable.
Conclusion:
The Tribunal upheld the CIT(A)'s decision, confirming that the fees for technical services paid to Raytheon were taxable in India under Section 9(1)(vii) of the Income-tax Act, regardless of where the services were rendered. The Tribunal dismissed the assessee's appeal, emphasizing that the legislative intent and the plain language of the statute supported this interpretation.
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2003 (11) TMI 603
Seeking to regularise their services in the Administration - relationship of employer and employee - Work of the employees for maintaining supply of electricity in the College and Hospital premises being of a perennial nature - Jurisdiction of the Central Administrative Tribunal (CAT) over contract employees - Trained electricians and skilled workmen - HELD THAT:- Normally, the relationship of employer and employee does not exist between an employer and Contractor and servant of an independent Contractor. Where, however, an employer retains or assumes control over the means and method by which the work of a Contractor is to be done it may be said that the relationship between employer and the employee exists between him and the servants of such a Contractor. In such a situation the mere fact of formal employment by an independent Contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent Contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. Where a particular relationship between employer and employee is genuine or a camouflage through the mode of Contractor is essentially a question of fact to be determined on the basis of features of relationship, the written terms of employment, if any, and the actual nature of the employment.
The actual nature of relationship concerning a particular employment being essentially a question of fact, it has to be raised and proved before an industrial adjudicator.
Relying on the Constitution Bench decision of this Court, in the case of Municipal Corporation of Greater Mumbai vs. KV Shramik Sangh, the employer who had lost the case in the writ petition before the High Court was directed to approach the appropriate court for industrial adjudication. The rulings of this Court which have been relied but which are earlier to the decision of the Constitution Bench in case of Steel Authority of India [2001 (8) TMI 1334 - SUPREME COURT] can be of little assistance to support the contentions on behalf of the appellants. The decision in favour of the workmen was rendered in that case after an industrial adjudication had ended in their favour.
In view of clear and binding pronouncement of law by the Constitution Bench of this Court in the case of Steel Authority of India [2001 (8) TMI 1334 - SUPREME COURT], in the present appeals which arise from writ petitions preferred against the adverse judgment of the Central Administrative Tribunal (CAT), none of the reliefs, as prayed for, can be granted to the employees. Without ascertaining through the industrial forum, factual aspects of inter se relationship between the Chandigarh Administration, the Contractor and the contract employees, no relief can be granted.
Thus, these appeals are dismissed but without prejudice to the rights of the employees to resort to the remedy of industrial adjudication in accordance with law as explained above.
In the circumstances, we make no order as to costs in these appeals.
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2003 (11) TMI 602
Guilty of professional misconduct - removal of the Chartered Accountant from the Membership of the Institute permanently - Chartered Accountant fabricating and filing false challans for advance tax for certain clients and relatives - filing returns showing nominal income to claim refunds - Principles of natural justice - Retraction of statements - HELD THAT:- Nowhere in the entire statement can one find any indication that the statement was obtained by any coercion or threat or inducement of any nature. This becomes amply clear when one takes into consideration the fact that the respondent had appeared in response to summons issued to four different assessees. It was not as if the respondent had been issued any summons to appear and depose before the authorities. This factor significantly points to the unequivocal direction of volition of the respondent in tendering the statement.
In the event of the respondent not being responsible for the fraud, there was no occasion for the respondent to pay over the sum to the revenue because the case of the respondent has been that though a fraud has been committed so as to obtain amounts in the nature of refund fraudulently from the Income-tax Department, the respondent is not the person who has committed such a fraudulent activity and, hence, he should not be visited with any penal consequence. Moment the respondent agreed to return/pay the amount to the Income-tax Department it became abundantly clear that it was only he, who had enjoyed the fruits of the fraudulent transaction and when such a fraudulent practice was discovered he admittedly agreed to refund the amount and in fact refunded the amount with interest.
It is not necessary to refer to the various statements/charts giving details and the gross receipts by way of income-tax refunds credited during various assessment years in different Bank Accounts, transferred therefrom to the Bank Account of the respondent and/or his family members and utilisation of such funds. There are also statements/charts available on record showing the names of different persons in whose names various Bank Accounts were opened and operated by the respondent. In brief : there are sufficient details to link the respondent with the fraud complained of. Once there is admission of the respondent in the form of identically worded letters dated 21-4-1993 supplying the list of cases in different wards wherein refunds have been fraudulently obtained, the contention that the complainant has led evidence in only four cases out of 168 does not merit acceptance. Even otherwise : it is the conduct of the respondent that is under scrutiny. If it amounts to misconduct - in one case or more - the number of cases becomes irrelevant. A proved misconduct remains so and there cannot be any mitigating circumstance on this count.
There is no explanation forthcoming as to why the letter dated 8-6-1993 retracting statement made in April, 1993 was not filed at any earlier point of time. Similarly, the affidavit dated 1-3-1995 also comes on record at a very belated stage. There is no explanation for the delay. A retraction, so as to dislodge the admission made, should come about at the earliest point of time. It goes without saying that a retraction made after a considerable length of time, would not have the same efficacy in law as a retraction made at the earliest point of time from the day of admission. A belated retraction would fall in the category of afterthought instead of being retraction.
That apart, for a retraction to be effective so as to dislodge the admission made earlier in point of time, the retraction has to be supported by contemporaneous evidence and the onus is on the person making such admission and retraction. In the present case, admittedly, the respondent has not been able to show even on the basis of preponderence of probabilities that the statements recorded on different dates, and more particularly recorded on 21-4-1993, were made under coercion or threat or inducement of any nature. The Disciplinary Committee has taken note of the fact that the respondent has categorically accepted that he has no animosity against any of the officers of the department and similarly, none of the officers of the department have any personal bias, grudge or animosity against the respondent. In these circumstances, it is not possible to find any infirmity in the reasoning adopted by the Disciplinary Committee and the Council for rejecting so-called retractions made on 8-6-1993 and 1-3-1995.
While dealing with the merits of the matter, the Disciplinary Committee has recorded the case of the complainant that a fraud had been committed in as many as 168 cases, but for the purpose of the present proceeding, the complainant had restricted itself to 4 major taxpayers in whose case the fraud could be established. It was submitted on behalf of the complainant before the Disciplinary Committee that the proceedings in regard to the others had been initiated and were pending trial in Criminal Courts but detailed evidence in this regard was not being produced before the Disciplinary Committee so as to avoid burdening the record of the said Committee because methodology and the modus operandi in regard to claim of fake refunds in all the cases was almost identical.
The petitioner-Council is one such representative body charged with responsibility of ensuring discipline and ethical conduct amongst its members and impose appropriate punishment on members who are found to have indulged in conduct which lowers the esteem of the professionals as a class. Adopting the aforesaid approach, it is not possible to find any infirmity, either on facts or in law, in the reasoning and the findings recorded by the Disciplinary Committee and the petitioner- Council by holding the respondent as being guilty of "other misconduct" under section 21, read with section 22 of the Act and, hence, there is no necessity to interfere with the punishment recommended. It has been proved beyond reasonable doubt, in the facts and circumstances of the case and by the evidence on record, that the respondent, and only the respondent, is guilty of "other misconduct" and hence liable to punishment u/s 21(6)(c) of the Act i.e., removal from membership of the Institute permanently.
The Reference is accordingly disposed of with a direction to the petitioner-Council to remove the respondent from the Membership of the Institute permanently.
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2003 (11) TMI 601
Issues Involved:
1. Constitutional validity of reservation based on domicile or institutional preference for admission into Post Graduate Courses in government-run medical colleges.
2. Whether reservation on the basis of domicile is impermissible under Article 15(1) of the Constitution of India.
3. Whether reservation by way of institutional preference is valid and does not violate Article 14 of the Constitution of India.
4. Whether the strict scrutiny test or intermediate scrutiny test should be applied to such reservations.
5. The appropriate percentage of seats to be reserved for institutional preference.
Issue-wise Detailed Analysis:
1. Constitutional Validity of Reservation Based on Domicile or Institutional Preference:
The core question was the constitutional validity of reservation based on domicile or institutional preference in admissions to Post Graduate Courses in government-run medical colleges. The petitioners, residents of Delhi, who completed their MBBS outside Delhi under the 15% all-India quota, challenged the Delhi University's notification that reserved 75% of PG seats for Delhi University graduates, arguing it violated Articles 14 and 15(1) of the Constitution.
2. Reservation on the Basis of Domicile:
The Court held that reservation on the basis of domicile is impermissible under Article 15(1), which prohibits discrimination based on place of birth. The Court distinguished between "place of birth" and "domicile," concluding that they are not synonymous and that the Constitution does not envisage reservation based on domicile. The Court cited past judgments, including D.P. Joshi v. State of Madhya Bharat, which clarified that place of birth cannot be a basis for reservation.
3. Reservation by Way of Institutional Preference:
The Court examined whether institutional preference violates Article 14, which forbids class legislation but allows reasonable classification. Institutional preference was upheld as a valid classification based on intelligible differentia and rational relation to the objective of providing local students with opportunities for higher education. The Court referred to past decisions, including Dr. Pradeep Jain v. Union of India, which supported institutional preference, and emphasized that such preference has been a long-standing practice.
4. Application of Strict Scrutiny Test:
The Court rejected the application of the strict scrutiny test or intermediate scrutiny test, which are used in the United States, stating that Indian courts do not apply these tests. Instead, the Court emphasized the presumption of constitutionality of statutes and the burden on the petitioner to prove otherwise. The Court held that institutional preference does not warrant strict scrutiny as it is not an unreasonable classification.
5. Percentage of Seats for Institutional Preference:
The Court revisited the percentage of seats reserved for institutional preference. While Dr. Pradeep Jain's case allowed up to 50% reservation, Dr. Dinesh Kumar's case reduced it to 25%. Considering the changed circumstances and the need for balance, the Court reinstated the 50% reservation for institutional preference in public interest. The Court mandated a common entrance test for all students conducted by AIIMS or another competent body to ensure uniformity and fairness in admissions.
Conclusion:
The Court upheld the constitutional validity of institutional preference for admission to Post Graduate Medical Courses, limited to 50% of the seats. It emphasized the need for a common entrance test and called for legislative action by the Parliament to address the broader issues of higher education and reservation policies. The judgment aimed to balance the interests of local students and the need for excellence in higher education.
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2003 (11) TMI 600
... ...
... ... ..... ason to interfere. The Civil Appeal is dismissed. No order as to costs.
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2003 (11) TMI 599
Whether this is a case where there was no scope for awarding sentence lesser than prescribed minimum and it should have been highest prescribed but the trial Court awarded sentence of 5 years for reasons, which may not be strictly meeting the requirements of law?
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2003 (11) TMI 598
Issues:
Appeal against penalty imposed under sub-rule (3) of Rule 96ZQ for delayed payment of duty. Validity of rules under Notification 42/98. Binding effect of Madras High Court judgment on Mumbai Tribunal.
Analysis:
The appeal before the Appellate Tribunal CESTAT Mumbai involved challenging the penalty imposed on the appellant for delaying the payment of duty under sub-rule (3) of Rule 96ZQ. The Commissioner (Appeals) had confirmed the penalty, leading to the appeal. The Departmental representative mentioned a judgment by the Madras High Court in Beauty Dyers Vs. UOI 2002 (52) RLT 635, which held that rules issued under Notification 42/98 were ultra vires Section 3A of the Central Excise Act. The representative argued that the Tribunal in Mumbai was not bound by this judgment, citing a previous decision in CCE Vs. Kashmir Conductors 1997 (96) ELT 257. However, the Tribunal clarified that when there is an order of the High Court on a legal proposition, the Tribunal is bound to follow it.
The Tribunal emphasized that all benches, including the one in Mumbai, were bound by the judgment of the Madras High Court in the absence of conflicting judgments from other High Courts. Therefore, the Tribunal concluded that the penalty imposed was unsustainable due to the High Court's decision setting aside the foundation for the penalty. As a result, the appeals were allowed, and the department was granted liberty to proceed against the appellant in accordance with the High Court's order.
In summary, the Tribunal's decision was based on the binding effect of the Madras High Court judgment on Mumbai Tribunal, which led to the penalty being set aside. The case highlighted the importance of following High Court orders on legal propositions, ensuring uniformity in legal interpretation and application across different jurisdictions.
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2003 (11) TMI 597
Issues:
1. Maintainability of reference sought under Section 35H of the Central Excise Act.
2. Whether the reference sought from the Tribunal involves a question of law.
Analysis:
1. The application filed under Section 35H of the Act sought a reference from the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) regarding the penalty under Rule 173Q of CER 1944 in relation to non-demanding of interest under Section 11AB. The Revenue argued that the question raised is purely a question of law and should be referred to the Court. However, the respondent contended that the application is not maintainable as an appeal to the Supreme Court is provided under Section 35L of the Act for matters related to the rate of duty of excise or the value of goods for assessment. Citing a Supreme Court decision, the respondent argued that the power of the High Court seeking a reference under Section 35H is excluded for such matters.
2. The Court considered whether the reference sought under Section 35H from CEGAT is maintainable and if the question raised involves a question of law. The Court noted that the language in Section 35H of the Act is identical to Section 130 of the Customs Act. Referring to the Supreme Court's interpretation of the Customs Act, the Court found that questions related to the rate of duty and value of goods for assessment fall within the scope of Section 130. The Court emphasized that disputes on classification, exemption notifications, and valuation directly impact the rate of duty and value of goods for assessment. Consequently, the Court concluded that the application seeking reference from the Tribunal should be rejected as not maintainable, as the questions raised did not involve a question of law.
3. In conclusion, the Court rejected the application as not maintainable but clarified that the rejection does not prevent the Revenue from filing an appeal against the CEGAT's order as provided under Section 35L of the Act. The Court's decision was based on the interpretation of the relevant provisions and the exclusion of High Court's power for certain matters under Section 35H, aligning with the Supreme Court's precedent regarding the scope of questions related to duty rates and goods valuation for assessment.
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2003 (11) TMI 596
Issues Involved:
1. Inter se seniority between two groups of employees.
2. Validity of the qualification issued by the Water Resources Department.
3. Applicability of the principle of continuous officiation in the lower post for promotion.
Detailed Analysis:
Inter se Seniority Between Two Groups of Employees:
The appeals involve the determination of inter se seniority between two groups of employees in the Bihar Subordinate Engineering Service Cadre, specifically Junior Engineers promoted to Assistant Engineers. The appellant and contesting respondents were appointed as Junior Engineers, with promotions to Assistant Engineer based on different quotas: 30% from Junior Engineers (Diploma Holders), 20% from Engineer Assistants (Engineering Graduates), and 50% from direct recruitment. The cadre of Engineer Assistants was abolished, leaving only the 30% quota for diploma-holders. To address the lack of promotional avenues for Junior Engineers who acquired degrees during service, the State of Bihar introduced a 3% special promotion quota.
Validity of the Qualification Issued by the Water Resources Department:
The Personnel Department did not establish a procedure for determining the inter se seniority of Assistant Engineers promoted under the 3% quota. The Water Resources Department issued a seniority list based on the date of obtaining the degree, which was challenged. The High Court upheld this list, relying on the Supreme Court decision in N. Suresh Nathan vs. Union of India. The Supreme Court in the present case found the Water Resources Department's order dated 22.12.1992 invalid, as it was issued by an authority without jurisdiction. The Personnel Department, not the Water Resources Department, was authorized to lay down the criteria for seniority.
Applicability of the Principle of Continuous Officiation in the Lower Post for Promotion:
The Supreme Court emphasized that in the absence of statutory rules, seniority should be based on the date of appointment and continuous officiation in the lower post. The Court distinguished the present case from N. Suresh Nathan, noting that the scheme in Nathan involved a different rule structure that required three years of service as a degree-holder. In contrast, the Bihar resolution only required a degree and five years of service as a Junior Engineer, without specifying that the service must be post-degree. The Court referenced M.B. Joshi vs. Satish Kumar Pandey and other cases to support the principle that seniority should be based on continuous officiation unless explicitly stated otherwise in the rules.
Findings:
The Supreme Court concluded that the Water Resources Department's order dated 22.12.1992 was illegal and without jurisdiction. The seniority list based on this order was set aside. The Court also set aside the High Court's order refusing to condone the delay in filing the appeal, directing that the writ petitions filed by the appellants be disposed of in accordance with the principles laid down in the judgment. The appeals were allowed, and the judgments under appeal were set aside, with no costs awarded.
Conclusion:
The Supreme Court's judgment clarified that in the absence of statutory rules, seniority for promotion should be based on the date of appointment and continuous officiation in the lower post. The decision invalidated the Water Resources Department's order and the seniority list based on it, emphasizing the need for proper jurisdiction and adherence to established legal principles.
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2003 (11) TMI 595
Issues: Requantification of interest amount by Commissioner of Central Excise and Customs based on CEGAT order and Board's circular.
Analysis:
1. Issue of Requantification Procedure: The petitioner argued that the Commissioner of Central Excise and Customs should have requantified the interest amount as per the Board's circular mentioned in the CEGAT order. The petitioner contended that the Superintendent of Central Excise and Customs had requantified the amount without considering the circular or hearing the petitioners.
2. Counter-Argument by Respondent: The Senior Central Government Standing Counsel representing the respondents contended that any officer, not necessarily the Commissioner who passed the original order, could requantify the interest amount. The respondent argued that the requantification done by the Superintendent of Central Excise and Customs was appropriate and justified.
3. Judicial Analysis: Upon reviewing the CEGAT order, the High Court observed that the matter was remitted for requantification in line with the Board's circular. The Court opined that the Officer responsible for the original order should have been the one to requantify the interest amount based on the circular referred to by CEGAT.
4. Court's Decision: Considering the circumstances, the High Court quashed the order of the Superintendent of Central Excise and Customs and directed the Commissioner of Central Excise and Customs to requantify the interest amount, taking into account the Board's circular mentioned in the CEGAT order. The Court emphasized that the Commissioner should provide the petitioner with an opportunity to be heard during the process to ensure fairness. The Court expected prompt action from the Commissioner to implement the CEGAT order efficiently.
5. Final Disposition: The High Court allowed the petition, making the rule absolute to the extent of directing the Commissioner to requantify the interest amount appropriately. No costs were awarded in this matter.
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2003 (11) TMI 594
Issues: Validity of order-in-appeal, Failure to consider CEGAT order
Validity of Order-in-Appeal:
The petitioner challenged the validity of an order-in-appeal passed by respondent No. 2. The advocate for the petitioner argued that the respondent did not consider the ratio of the order passed by the CEGAT in the petitioner's case, which led to the appeal not being allowed. It was contended that the failure to follow the CEGAT's order constituted a grave illegality. The Central Government Standing Counsel representing the respondents attempted to support the impugned order but acknowledged that the principle laid down by the CEGAT was not followed by the Commissioner. The High Court noted that the respondent had erred in not considering the CEGAT's order, especially when the items in question were the same. Consequently, the High Court quashed the impugned order and directed the respondent to reconsider the appeal in light of the CEGAT's observations in the petitioner's case.
Failure to Consider CEGAT Order:
The key contention revolved around the failure of respondent No. 2 to consider the principle laid down by the CEGAT in its order dated 21-11-2002, despite the items under consideration being the same as in the petitioner's case. The advocate for the petitioner argued that it was mandatory for respondent No. 2 to follow the CEGAT's order, and the failure to do so was a serious error. The High Court concurred, finding that the failure to consider the CEGAT's order amounted to a mistake on the part of the respondent. Consequently, the High Court set aside the impugned order and directed respondent No. 2 to reexamine the appeal in accordance with the CEGAT's directives in the petitioner's case.
This judgment highlights the importance of administrative bodies adhering to legal precedents set by higher authorities, such as the CEGAT, and the consequences of failing to do so in the context of appeal proceedings.
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2003 (11) TMI 593
The Supreme Court dismissed the appeal as it was found to be not maintainable. (Citation: 2003 (11) TMI 593 - SC)
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