LegalCrystal – Blog

In the instant case, Mr.Srinivas a Junior Assistant/Typist, Karnataka Electricity Board [Now Karnataka Power Transmission Corporation Limited], is denied his advance increment by The Secretary, Karnataka Electricity Board.

Mr.Srinivas joined the services of the K.E.B. as a Junior Assistant in its O & M Division, Hubli, in the year 1977.  As per the Order dtd.5/9/1975 the K.E.B. had accorded sanction to grant four advance increments to the employees on securing additional/higher qualifications as detailed in the Annexure to the said Order without prejudice to their normal increments.  As per the Annexure to the said order, a junior Assistant/Typist is entitled four advance increments if he acquired Degree in Commerce or Arts or Science of a recognized University. Later as per the Order dated 23/10/1977, the K.E.B. directed that a Junior Assistant/Typist will be entitled to only two advance increments on his acquisition of a Degree in Commerce or Arts or Science of a recognised University. The said Mr.Srinivas passed B.A Music final examination held on May 1979.Thereupon he gave representation dated 10/10/1991 along with Annexure to the Superintending Engineer, C & M Circle, K.E.B. Hubli, bringing to his notice that he had passed BA-Music Part III Examination conducted by the Karnataka University, Dharwad, in the month of May 1979 and requesting to sanction advance increments to him. Along with representation he enclosed(i)Special Certificate issued by the Karnataka University, Dharwad (ii)Certificate of Marks and (iii) Degree passing Certificate issued by the Karnataka University,Dharwad the representation was forwarded by the Superintending Engineer to the Chief Engineer,K.E.B. along with  a letter dated 26/109/1991.  in the letter it is stated that as per the Order dated 25/10/1977 of the K.E.B., sanction of advance increment is permissible to Junior Assistants who have passed a Degree in Commerce or Arts or Science and that the Bachelor of Music is not included among the qualifications, on the acquisition of which, advance increment could be granted.

The Superintending Engineer also requested the Chief  Engineer to pursue the matter with the Karnataka Electricity Board for considering whether Bachelor of Music also is a Degree equal to Science, Arts and Commerce for granting advance increments.  The Superintending Engineer also observed that the request of said Junior Assistant/Typist appeared to be genuine.

However The Secretary, Karnataka Electricity Board, informed the Chief Engineer that as per the existing provisions, the said employee was not entitled for advance increments for acquiring a degree in Bachelor of Music.

Aggrieved by the denial of the advance increments, the said employee filed a Writ Petition praying for quashing of the said letter dated 27/12/1991 of the Secretary, Karnataka Electricity Board and also for a direction to the Chief Engineer to consider the present case for grant of additional increments as he has obtained a degree from a recognized university.

In the Writ, the K.E.B. filed a Statement of Objections opposing the prayers in the Writ Petition. In Para 3 of the statement of objection it was stated  as follows:

€œIt is respectfully submitted that the said employee has not obtained degree in Commerce/Arts/Science, but he has obtained a Bachelor Degree in Music.  The University has issued the Certificate to the said employee a Bachelor Degree in Music and not a Bachelor Degree in Arts.  Therefore he cannot take any advantage of the said Degree so as to take the benefit under the Circular.

After considering the rival contentions of the parties the learned single judge held that a Degree in Music is a Degree in Arts and therefore, the petitioner is entitled to the advance increments.  Accordingly, the Writ Petition was allowed declaring that the Degree in Music which the petitioner has secured is a Degree in Arts and directing the K.E.B. to consider the application of the petitioner for payment of two additional increments from the date of his acquiring the additional qualification, namely, Degree in Arts(Music) and pay the same within three months from the date of the judgement.

Aggrieved by the Order of the learned single judge, the K.E.B. filed Writ Appeal

This is a Division Bench decision delivered by Hon’ble C.J. Cyriac Joseph and Justice K.L.Manjunath :

In the Writ Appeal the Hon’ble High Court felt that the only question that arises for consideration is whether the higher/additional qualification acquired by the above employee is a Degree in Commerce or Arts or Science.  According to the employee the qualification acquired by him is a Degree in Arts.  According to the K.E.B. it is not a Degree in Arts but only a Degree in Music.

The said employee had produced a Certificate dated 26/9/1991 issued by the Karnataka University, Dharwad which read as follows:

Sri/Smt.Joshi Shrinivas Venkatesh passed the B.Music Part III which is a final year of the three years degree course Examination held by the Karnataka University in the month of May, 1979 and was placed in the First Class.

The employee had placed before the Court the original of a Special Certificate dated 26/9/1991 issued by the Karnataka University,Dharwad which read thus:

€œThis is to certify that Sri/Smt.Joshi Srinivas Venkatesh has passed the B.Music Part III Examination- the final examination held at the end of the three year Degree course held by the Karnataka University, in the month of May 1979 with Regd.(Seat) No.004 and was placed in First Class.

He/She is eligible for conferment of the B.Music Degree at the next Convocation of this University.

The original of the Marks list dated 26/9/1991 issued by the Karnataka University,Dharwad shows that he has studied and passed English and Kannada as basic, Sitar(Theory and Practical) as major and Vocal(Practical) as minor.

The Learned Advocate for the K.E.B. also made available to the Court the printed syllabus of the Karnataka University,Dharwad, for the Third Year of the 3 year B.A. Degree Course(Revised) B.A. PART  III Examination (with effect from the academic year 1975-76 and onwards).  The said syllabus shows the subjects for studying in the third year of the three year B.A.Degree course(Revised).  Out of 33 optional subjects, Sl.No.23 is Music and S.No.25 is Fine Arts. Therefore the Division Bench held, it is obvious that a student who under goes and passes III Year B.A. Degree Course with Music as Optional subject is entitled to B.A.Degree.

B.A.Degree means a Degree in Bachelor of Arts, Consequently, the said employee who is entitled to the conferment of a Bachelor Degree in Music is entitled to be treated as a person entitled to a Degree in Arts. Therefore the learned single judge was right in holding that the said employee is entitled to advance increments as per the Order.

BBMP OFFICIALS WORKED OVERTIME/OVERNIGHT!

[News you can use]

Bruhat Bangalore Mahanagara Palike officials worked overtime on Tuesday and Wednesday 12th & 13th January to give a big push to development. Keeping in mind that the election code of conduct comes into effect on January 15,[in view of the BBMP election scheduled to be held on 22nd ] officials cleared files on Wednesday, the last working day before the deadline.

The members of Civic Front stormed into the BBMP office and protested against e-tendering. The coalition of political parties like CPM, CPI and AIADMK accused the BBMP of clearing tenders worth over Rs.3,000 crore overnight on Tuesday in a very undemocratic process. BBMP councilors stayed on at office till the wee hours of Wednesday to clear all these tenders for developmental work, they alleged ‘What was the hurry to finalize the tenders at midnight’?

PEOPLE BEWARE! YOU ARE EXPLIOTED AFTER TAKING YOUR VOTE! ITS YOUR DUTY /OBLIGATION TO ENSURE TRANSPERANCY IN PUBLIC PROCUREMENT OF GOODS AND SERVICES BY THE AUTHORITIES!

Professionals/Businessmen and People be Aware of the Law relating to Public Procurement of Goods and Services – to understand more go through the narration of the following case law – judgement delivered by Hon’ble Justice N.Kumar of Karnataka High Court.

[Let me brief you about a practical case discussed in 2009(4) AIR Kar R 98]

In the above case one M/s Nsoft(India) Services Pvt. Ltd., has challenged two contracts awarded to one M/s Zygax and sought for quashing of the same. The first contract is in respect of spot billing and collection in BESCOM Sub-Divisions,Second contract refers to maintenance of billing software.

The BESCOM Ltd., floated a tender inviting bids for Total Revenue Management of Billing and Collection of BESCOM Sub-Divisions in respect of 4 lots. The common qualifying requirements were stipulated for all the Lots. The Nsoft India Services was one such bidder and so also M/s Zygax. The Nsoft India’s bid was not accepted whereas the zygax bid was accepted. The grievance of the Nsoft India is that the zygax did not possess the requisite qualification, namely three years experience of providing similar services in any electricity supply utility in India. The zygax contended that they do possess the three years qualification. The BESCOM has not categorically stated in the statement of objections that the zygax do possess the requisite qualification of three years experience. And the Nsoft preferred a statutory appeal against the order passed by the tender accepting authority under Section 16 of the Karnataka Transperancy in Public Procurements Act 1999. The appellate authority after considering the rival contentions held according to BESCOM the requirement as stated in the bid document, is only work of similar nature. Since there is no specific definition in the tender document on what constitutes work of similar nature, the decision of the tender inviting authority in determinig this was accepted and accordingly it dismissed the appeal of Nsoft India. Aggreived by the said orders he is before the Hon’ble High Court.

Kindly be Aware of the Law:

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[Karnataka Transparency in Public Procurements Act (29 of 2000)]

The above Act was enacted by the Karnataka State Legislature to provide for ensuring transparency in public procurement of goods and services by streamlining the procedure in inviting, processing and acceptance of tenders by Procurement Entities and for matters related thereto.

“Procurement Entity” has been defined under the said Act to mean any Government Department, a State Government undertaking, Local Authority or Board, Body or Corporation established by or under any law and owned or controlled by the Government and any other body or authority owned or controlle4d by the Government and as may be specified by it.

Chapter II of the above Act deals with regulation or procurement. Section 5 provides that, on and from the date of commencement of the Act no procurement entity shall procure goods or services except by inviting tenders for supply. Section 6 contemplates that no tender shall be invited, processed or accepted by a procurement entity after the commencement of the Act except in accordance with the procedure laid down in the Act or the Rules made thereunder.

Act provides for publication of tender bulletins, tender bulletin officers, tender inviting authority and tender accepting authority, tender scrutiny committee, opening of tenders, duties of tender inviting authority, how a tender is to be accepted, how a tender is to be rejected and a statutory appeal to a person aggrieved in the aforesaid tender process.

Therefore, after coming into force of the Act, inviting tenders for procuring the goods and services is the rule and the said procurement should be in accordance with the procedure prescribed under the Act. However, the Act makes two exceptions. Firstly, as contemplated under Section 3 the provisions of the Act are not made applicable to the projects funded by international financial agencies or projects covered under international agreements. The Second exception , with which are concerned is found in Section 4 which reads as under :

“S.4 Exception to applicability-The provisions of Chapter II shall not apply to Procurement of goods and services:-

(a) During the period of natural calamity or emergency declared by the Government.

(b) Where the goods or services are available from a single source or where a particular supplier or contractor has exclusive rights in respect of the goods or services or construction work and no reasonable alternatives or substitutes exist:

Provided that for the purpose of this clause there shall be a committee of three experts consisting of one technical representative of the procuring entity one technical respresentative of the Government organization dealing with similar procurement and one respresentative from a reputed Academic or Research Institution or Non-commercial Institution having expertise in such line to examine and declare that the goods or services are available from a single source.”

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In the above case After much deliberations the Hon’ble High Court held – applying exceptions as per Section 4 of the Act to the facts of this case the BESCOM has committed first error in not appointing experts in the field as committee members, The committee constituted was not of expert committee committed an error in referring the matter to a professor, an expert in the field for which they had no power under the Act, It is the procurement entity which has to constitute a three member expert committee to consider the services rendered by M/s Zygax and then to find out whether he is the only person who has got exclusive control of the said service. That has not been done. After the matter was referred to professor Sadagopan obviously he was not aware of the provisions of this Act. He has not certified that the petitioner is the only source from which this service could be procured. The recommendation made by him is very general in nature. It does not satisfy the requirement contemplated under proviso to sub-section(b) of Section 4 of the Act. In the letter addressed by him to the BESCOM he has not declared that the goods or services are available from a single source or that M/s Zygax has exclusive rights in respect of the goods and services. The third error committed was without properly understanding the contents of the said letter, the BESCOM has proceeded on the assumption that Sri Sadagopan is of the view that M/s Zygax is the only single source from whom the said service could be procured and they have awarded the contract to the M/s Zygax on the basis of the said letter.

From the aforesaid facts, it is clear that there is total non-application of mind by the BESCOM in the constitution of the expert committee, in making reference to an expert and also in not understanding what the expert has stated by way of his opinion. Therefore, the BESCOM has committed a serious illegality in awarding the contract to M/s Zygax.

Having regard to the object with which the Act was passed by the Karnataka Legislature nearly nine years back, the tendency of the BESCOM an Instrumentality of the State, to continue to indulge in manipulations and distributing the public largesse is quite evident in this case. When the whole machinery of an instrumentality of the State is directed towards preferring a particular individual or a company in preference to other persons who are similarly placed and anxiety shown by the statutory authority in awarding contract, in utter violation of provisions of the Act clearly demonstrates that the authorities are acting in violation of the rule of law. In fact the way tender is worded also gives an impression that from the inception they have kept in mind the interest of M/s Zygax and not of the authority. When these facts are brought to the notice of this Court, this Court cannot be a silent spectator. It is not a mere issue of a writ to quash an illegal action. A duty is cast on the Court to see in future such illegalities do not occur. Therefore it is very much necessary for this Court to quash these contracts in particular the second contract which is granted in utter violation of the provisions of the Act. As M/s Nsoft India has succeeded in showing the illegality he is entitled to succeed and is entitled to get both the contracts quashed.

However, merely because the contract awarded to M/s Zygax is quashed at the instance of M/s Nsoft India, M/s Nsoft India is not entitled to the award of Contracts straightway. Before they could be said to be entitled to the contract, he should satisfy the tender accepting authority that he possess the requisite qualification. That is an exercise to be done by the tender accepting authority and not by this Court. Writ Petition Allowed.

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[News you can use]

NEW DRIVING NORMS IN THE COUNTRY! – 16 YEAR OLD’s MAY NOT GET THE DRIVING LICENSE! ALSO THOSE OVER 75!

New Delhi: The Government is putting final touches to a major overhaul of driving norms in the country which includes putting an upper age limit on people eligible to drive and making training from recognized driving schools mandatory for applicants wanting a drivers license.

Officials said the new norms will transform the drivers license from being a proof of identity to a proof of skill. The exercise is aimed at reducing road accidents in the country by making sure that only qualified people take to the wheel. Around 1.14 lakh people die on the roads in India, more than anywhere else in the world.

The government has proposed to fix an upper age limit for people eligible to drive. The proposed changes to the Motor Vehicle Act will also include defining the maximum speed limit on highways. The changes are expected to be finalized by March.

The new norms, being devised by an expert committee set up by the ministry of road transport and highways, is weighing the option of barring people who are over 72-75 years old from getting a driving license. The move, which is still under consideration, is likely to impact many active senior citizens who drive their own vehicles.

The committee has also proposed not giving licenses to 16 and 17 year olds, who, under the current rules, are eligible to ride mopeds.

Another major impact of the proposals would be on small-time driving schools, which could become a thing of the past. Officials said that state transport departments could be bifurcated to ensure that only people with proper training get the licenses. One agency will be responsible for training of drivers and the other will deal with issuing licenses. We are looking into the suggestion of experts in this field to have recognized driving institutes with infrastructure in every state. In small states, there can be one training school and in bigger ones, there can be two such training schools, an official said. These model training schools will mandatorily train all aspiring drivers in the region.

**Dear Readers, kindly share your views also on the above proposal!

In my view: life of the common man should not be made so complicated with unnecessary imposition of new rules of this nature. Because biologically each individual physical/reflux capacity is different. It can be monitored by periodical tests and renewal of licenses.

These rules may be made mandatory to HTV vehicles, Public transport buses and Hire Cars/Vans /Goods vehicles etc. But an average citizen who rides a moped or his own car will be very badly affected by all these stringent rules and regulations.

Instead of making all these foolish and troublesome changes, solution would be making periodical checks/renewals of riders license mandatory and thereby cancelling a particular individuals license if he is not physically/mentally or habit wise[drunkard] not qualified to drive a vehicle.

Due to these rules, old people who are fit/ hale and hearty even after 75 will forcibly become dependents and college-goers attending colleges/tuitions and other skill development classes will find it difficult to manage time and will be badly affected by this.

Definitely, this is not at all a right move from the point of view of an average citizen as an independant individual.

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CITIZENS! KNOW YOUR RIGHT UNDER RIGHT TO INFORMATION ACT! An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

1.WHY ? RIGHT TO INFORMATION ? BECAUSE:

The Constitution of India has established democratic Republic;   AND the democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to curtail corruption and to hold Governments and their instrumentalities accountable to the governed.

Right to Information Act 2005 (NO. 22 OF 2005) [ 15th June, 2005 .]   An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

2.HOW TO OBTAIN AN INFORMATION ?

Request for obtaining information.-(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to-

(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;

(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be,

specifying the particulars of the information sought by him or her:
Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.

(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

(3) Where an application is made to a public authority requesting for an information,-

(i) which is held by another public authority; or

(ii) the subject matter of which is more closely connected with the functions of another public authority,

the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.

Important Legal Tip to Daughters of Hindu Undivided Family

Hindu Succession Act(30 of 1956)-Section 6-The Amendment Act 2005

Whenever they may have born- They can claim for partition of the property which has not been partitioned earlier. [But if the same was in effect earlier i.e. prior to 20^th December 2004 the same should not be reopened]

The aim of the Amendment is to end gender discrimination in Mitakshara coparcenary by including daughters in the system. Mitakshara is one of the two schools of Hindu Law but it prevails in a large part of the country. Under this, a son, son’s son, great grandson and great great grandson have a right by birth to ancestral property or properties in the hands of the father and their interest is equal to that of the father. The group having this right is termed a coparcenary. The coparcenary was earlier confined to
male members of the joint family.

Despite the Hindu Succession Act being passed in 1956, which gave women the inheritance rights with men, the mitakshara coparcenary system was retained and the government refused to abolish the system of joint family. According to this system, in the case of a joint family, the daughter gets a smaller share than the son . While dividing the father’s property between the mother, brother and sister, the share is equal.

The (Amendment) Act 2005 was enacted to remove the discrimination as contained in S.6 of the Hindu Succession Act, 1956 by giving equal rights and liabilities to the daughters in the Hindu Mithakshara coparcernary property as the sons have.

The said Act has come into force with effect from 9/9/2005 and the statutory provisions are not expressly made retrospective by the legislature. The Act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of coparcenary from the date when the amended Act has come into force i.e.9/9/2005. [AIR 2008 Orissa 133]

image source : http://www.thehindubusinessline.com

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