Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time, the Court held that the legislature never intended a complaint made against an Advocate either from the perspective of the complainant or from the delinquent to be transferred to BCI, again to be sent back. It was held that BCI, while exercising original jurisdiction on transfer of a complaint, cannot exercise the appellate jurisdiction.

The Court, however, took note of the fact that on many occasions disciplinary authority of the State Bar Council does not dispose of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. Looking down upon such practice, the Court said that once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility.

The bench of Dipak Misra and A.M. Khanwilkar, JJ, hence, directed the State Bar Councils to take a periodical stock of cases in each meeting with regard to the progress of the Disciplinary Committee, find out the cause of delay and guide themselves to act with expediency so that the Council, as a statutory body, does its duty as commanded under the Act. [Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, 2017 SCC OnLine SC 351, decided on 06.04.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating to Journalist Rajdev Ranjan’s murder, where counsel appearing for the petitioners had argued that Md. Shahabuddin, who was spotted with one of the accused persons who was absconding after the crime, should be transferred from Siwan Jail to Tihar Jail as he has been successfully instrumental in committing the crime while in jail or while he is out from jail even for a minimum period of time, the Bench of Dipak Misra and Amitava Roy, JJ issued notice to Md. Shahabuddin in this regard and listed the matter to be taken up on 28.11.2016.

It was brought into the notice of the Court that Md. Shahabuddin is facing 45 criminal cases which are pending for trial and it is the admitted position that 44 trials are pending in the State of Bihar and one in the State of Jharkhand and if he is allowed to be a catalyst or a motivator in the crimes by operating from jail, the justice for which the victims in 45 cases are crying would face incurable hazard and jeopardy. It was argued that when a person goes beyond the bounds of law and becomes a history-sheeter, the Court is required to pass appropriate orders, regard being had to the societal necessity. It was further added by Dushyant Dave, appearing for the petioners, that the trial can be held through video-conferencing so that the rights of an under trial are not affected.

The transfer was sought as one Chandrakeshwar Prasad had preferred the writ petition under Article 32 of the Constitution of India that his two sons were abducted and murdered for which Md. Shahabuddin was convicted and sentenced to imprisonment for life and that the appeal against the said conviction and sentence is pending before the High Court. He also submitted that his third son was also done to death two days prior to giving evidence in court in respect of trial of his other two brothers. The counsel appearing for the petitioners submitted that if such a history-sheeter is allowed to remain in the jail of Siwan Jail, the distress and the agony of the family of the petitioners would know no bound. [Asha Ranjan v. State of Bihar, 2016 SCC OnLine SC 1167, decided on 24.10.2016]

Appointments & Transfers

On 13-04-2015, President of India after consultation with the Chief Justice of India, transferred Shri Justice Rajiv Sharma, Judge of the Allahabad High Court, as a Judge of the Calcutta High Court and directed him to assume charge of his office in the Calcutta High Court on or before 27-04-2015. 

 

-Ministry of Law & Justice

Appointments & Transfers

On 13-04-2015, President of India after consultation with the Chief Justice of India, transferred Shri Justice Dhirendra Hiralal Waghela, Chief Justice of the Karnataka High Court, as the Chief Justice of the Orissa High Court and directed him to assume charge of the office of the Chief Justice of the Orissa High Court within two months from the date of this notification. 

                                                                                                                           

-Ministry of Law & Justice

Appointments & Transfers

On 05-02-2015, the President of India after consultation with the Chief Justice of India transferred Shri Justice Huluvadi Gangadharappa Ramesh, Judge of the Karnataka High Court, as a Judge of the Allahabad High Court and directed him to assume charge of his office in the Allahabad High Court on or before 18th February, 2015. 

-Ministry of Law and Justice.

Appointments & Transfers

On 05-02-2015, the President of India after consultation with the Chief Justice of India transferred Shri Justice Vineet Saran, Judge of the Allahabad High Court, as a Judge of the Karnataka High Court and directed him to assume charge of his office in the Karnataka High Court on or before 18th February, 2015.

-Ministry of Law & Justice

Appointments & Transfers

On 06-02-2015, the President of India after consultation with the Chief Justice of India transferred Shri Justice Bawa Singh Walia, additional Judge of the Punjab and Haryana High Court as a Judge of the Jammu and Kashmir High Court and directed him to assume charge of his office in the Jammu and Kashmir High Court on or before 17th February, 2015. 

-Ministry of Law & Justice