Monthly Archives: May 2020

Wife Living In Adultery – Not Entitled to Maintenance

 A wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of section 125, Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure. Ashwani K. Lal v. Deepa Kumari Chauhan, Cr.MMO No. 358 of 2016, decided on October 31, 2019

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Making a Daughter in Law Do Domestic Work – Is Not Unusual

No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual.

In Narendra v. K. Meena, 2016 (5) KHC 180, it was held as under: “In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial court was right when it came to be conclusion that this constitutes an act of ‘cruelty’.” Ranjith P.C. V. Asha Nair P., Mat. Appl. No. 137 of 2014, decided on May 20, 2020

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Recruitment, Advertisement, Selection and Appointment

“Recruitment”, “Advertisement”, “Selection” and “Appointment” are different concepts under the service jurisprudence. “Recruitment” is the process of generating a pool of capable people to apply for employment in organization. Selection forms integral part of recruitment process, wherein from amongst eligible candidates, choice is made of person or persons capable to do the job as per the requirement. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. “Appointment” is made, after selection process is over, issuance of letter in favour of selected candidates, is an offer to selected candidate to accept the office or position to which he has been selected. On acceptance of the terms and conditions of appointment, the selected candidates on joining has to be accepted as appointed. Ravi Raj v. State of U.P., Writ – A No. – 26584 of 2011, decided on February 7, 2020

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Power of Executive Council – To Grant Priveleges of Affiliation

The consequence of amendment made in Section 37 of the U.P. State Universities Act of 1973 is essentially three fold. Firstly, the power to grant affiliation now stands vested in the Executive Council of the University concerned and the requirement of prior approval of Chancellor/State Government stood dispensed with. Secondly, the privilege of affiliation can now be extended to a college only when it fulfills conditions of affiliation, as may be prescribed. Thirdly, the proviso which permitted grant of temporary affiliation even if conditions of affiliation were not fulfilled entirely but only substantially stood deleted. No further amendment is made in the U.P. State Universities Act after the year 2014. The Executive Council is thus empowered in the Act now to grant privileges of affiliation only if the college fulfills all conditions of affiliation as are specified in the Statutes of the University. The object for which temporary affiliation was made permissible i.e. to secure fulfillment of all conditions of affiliation while granting affiliation even if conditions of affiliation are only substantially fulfilled and not in its entirety ceased to exist. Yashraj College of Professional Studies v. State of U.P. , Writ – C No. – 31170 of 2019

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Concept of – Human Error

The concept of human error or inadvertent error has been explained in brief by Hon’ble Supreme Court in Price Water, Coopers (P) Ltd. v. CIT (2012) 11 SCC 316, as under:— “The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.” Anand Kumar Tripathi v. State of U.P., Writ – A No. – 162 of 2020, decided on February 14, 2020

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Candidate in the Selection Process – Only Accepts the Prescribed Procedure and Not the Illegality

Dr. (Major) Meeta Sahai v. State of Bihar; 2019 SCC OnLine SC 1632, Hon’ble Supreme Court has held as under: “However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Mohan Lal Yaduwanshi v. State of U.P, Service Bench No. – 18370 of 2019, decided on January 13, 2020

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Recruitment – No Discrimination Can Be Permitted

In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Hon’ble Supreme Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. It was held as under: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” Mohd. Rashid v. Local Bodies, (2020) 2 SCC 582

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Subsequent Development – Cannot Validate An Action

In Ritesh Tiwari v. State of U.P. (2010) 10 SCC 677, it was held as under:— “It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. Saraswati Vidya Mandir Inter College V. State of U.P., Writ  C. No. 16120 of 2009 Connected with Writ – C. No. 26354 of 2009, decided on 18.05.2020.

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‘Capable of Earning’ and ‘Actual Earning’ – Difference Between

In Arun Vats v. Pallavi Sharma, reported as 2019 SCC OnLine Del 11817 and Niharika Yadav v. Manish Kumar Yadav in Crl. Rev. Petition 755/201, decided on 18.12.2019 where, while relying upon the decision rendered in the case of Shalija v. Khobbana reported as (2018) 12 SCC 199, it was held that ‘capable of earning’ and ‘actual earning’ are entirely two different things. Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance. It was also stated that the petitioner has qualified CTET test and is now more qualified to earn. In Swapan Kumar Banerjee v. The State of West Bengal, reported as 2019 SCC OnLine SC 1263, the Hon’ble Supreme Court observed as follows:“The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as far as the husband is concerned, his income through taxable returns has been brought on record which shows that he was earning a substantial amount of Rs. 13,16,585/- per year and on that basis Rs. 10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.”  Anita v. Amit, Crl. Rev. P. 515/2018, decided on 24.02.2020

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Approved – Scheme of Administration

Since salary to teaching and non-teaching staff has to be disbursed pursuant to bills presented under the signatures of the manager and he also signs on the cheque, it is imperative that the Inspector authorises only such representative of the management which is constituted in accordance with the scheme of management. In addition to the functions assigned to a management in the U.P. High Schools And Intermediate Colleges (Payment of Salaries of Teachers And Other Employees) Act,  of 1971, there are other responsibilities entrusted upon the management by virtue of provisions contained in the U.P. Intermediate Education Act, 1921. The U.P. Intermediate Education Act of 1921, therefore, contemplates that a scheme of administration shall exist for every institution recognized under the Act of 1921. The scheme of administration shall, amongst other matters provide for the constitution of a committee of management which is vested with the authority to manage and conduct the affairs of the Institution. The requirement of having such scheme of administration and also the particulars which it must contain are specified in Section 16-A of the Act of 1921. Sub-section (6) of Section 16-A mandates that every recognized institution shall be managed in accordance with the scheme of administration provided for in Sub-sections (1) to (6) thereof. Amendment has been made in the Act of 1921 to incorporate Section 16-CC and Section 16-CCC vide U.P. Act No. 1 of 1981. Third Schedule has also been added vide the same amending Act laying down principles on which approval to a scheme of administration shall be accorded. One of the factors specified in the Schedule is to provide for periodical elections. The scheme of administration is also required to be approved by the Deputy Director of Education.

    The object of enumerating need to have a scheme of administration and for a committee of management to be constituted as per it is to ensure that the body entrusted with the task of management functions in a democratic manner and the officials of the State interact only with a body duly elected in accordance with the approved scheme of administration. It is in this context that the term recognition needs to be understood for the committee of management of the Institution concerned. There is otherwise no specific provision in the Act of 1921 for grant of recognition.  Committee of Management Thakur Biri Singh Inter College v. State of U.P. , Writ – C No. – 28560 of 2019, decided on 25.02. 2020

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