Smt. Kausar Tasneem Khan Vs. Additional Commissioner, Amravati Division and ors. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 5 was perfectly within the jurisdiction of additional commissioner. this court is satisfied that the questions, which fell for the consideration of additional commissioner, have been rightly considered by him. 21. this court is satisfied that:a.h. joshi, j.1. heard learned adv. mr. p.c. madkholkar for the petitioner, learned asstt. govt. pleader mr. d.b. yengal for respondent no. 1 and learned adv. mr. m.k. pathan for respondent no. 6.2. petitioner was appointed as a junior college teacher in zilla parishad girls high school, yavatmal, on or before 9th november, 1990. she had applied for transfer to zilla parishad, amravati. the order of transfer and absorption into the establishment of zilla parishad was passed on 3rd november, 1992. perusal of order, copy whereof is at annex. 'a' at page 25 of paper-book reveals that the petitioner has been transferred against a vacant post.3. respondent no. 5, who is an employee in the employment of zilla parishad, amravati, as a teacher in secondary school, also possessed qualification, and claimed that she was entitled for transfer and posting as a lecturer in junior college in same zilla parishad.4. respondent no. 5 had already applied for transfer and posting. the request of the respondent no. 5 was forwarded by the zilla parishad, amravati, to the deputy director of education, who found that the respondent no. 5 was qualified and eligible to be appointed by transfer as a teacher in junior college and directed under his letter 6th october, 1992 to consider petitioner s case for said transfer and posting.5. it is seen that before the application of respondent no. 5 was considered, treating the post of a teacher in junior college to be vacant, present petitioner was appointed on the said post by transfer from zilla parishad, yavatmal and order for absorption was passed.6. respondent no. 5 herein was aggrieved, as, though she was qualified, eligible and entitled for transfer and posting to said post, having higher scale of pay, she was not given the same. she, therefore, filed an appeal under section 14(a) of the maharashtra zilla parishads & panchayat samitis (discipline & appeal) rules, 1964 before the additional commissioner, amravati.7. the petitioner herein got herself impleaded before the additional commissioner, and was heard, and has been dealt with in accordance with principles of natural justice.8. by order dated 7th july, 1994, additional commissioner partly allowed the appeal, and directed the chief executive officer, zilla parishad, amravati, to consider petitioner's claim and to scrutinize whether present respondent no. 5 has been met with any injustice in the light of discussion contained in the judgment.9. it is seen that the chief executive officer has considered the matter and issued a communication dated 28th december, 1994, calling upon the petitioner herein to say whether she would accept absorption on post of asstt. teacher [upper division] and to relinquish her claim for the post of a teacher in junior college.10. parties have not brought before this court on record as to whether after the decision of the additional commissioner dated 7th july, 1994, and before the decision dated 28th december, 1994, any order or decision is rendered by the chief executive officer in compliance with the directions given by additional commissioner. it seems that the letter dated 28th december, 1994 by the chief executive officer itself may be a part of the steps to be taken.11. perusal of affidavit filed by respondent no. 2 discloses that respondent no. 5 herein was possessing qualification and experience for transfer and posting as a teacher in junior college and a proposal for this was sent to the deputy director of education, which was also approved by communication dated 6th october, 1992, which is annexure-zp-6 to the affidavit-reply of the respondent no. 2.12. it is also seen that it has been admitted in the said affidavit of respondent no. 2 that by ordering transfer of the writ petitioner to zilla parishad, amravati, rightful claim of the respondent no. 5 was bypassed.13. it is seen that in these premises, appropriate action to be taken by the respondent no. 2 was to revoke or cancel the order of absorption of the petitioner s services and repatriate the petitioner to zilla parishad, yavatmal, unless there existed a vacancy for the respondent no. 5. it appears that there was no vacancy to promote the respondent 5 and also to retain the petitioner as a teacher in junior college.14. it seems that because of situation indicated in the preceding para, the respondent no. 2 took steps to ascertain whether the writ petitioner would agree for absorption as asstt. teacher [upper division], and in that event her claim for the post of a teacher in junior college could be considered in future.15. it is seen that the respondent no. 2 has also taken his stand, inter alia, on the point that petitioner was not eligible for inter-district/zilla parishad transfer, and tried to substantiate it by producing on record copy of govt. circular dated 25th september, 1992, which is at page 152 of the paper- book.perusal of policy decision of the state govt. of writ petition, which is annex.zp-1], spells out that a district cadre employee, who has put in ten years of service in the employment of zilla parishad, alone can apply for a transfer to other zilla parshad.16. it is pertinent to note that petitioner has not filed any rejoinder to reply-affidavit of the respondent no. 2. even during oral submissions, and points on facts raised by respondents have not been replied.on this ground, present petitioner, in fact, is not eligible to apply and get transferred to another zilla parishad.17. arguing in support of the petition, learned adv. mr. madkholkar holding for adv. mr. m.d. lakhey has raised jurisdictional issue, namely in the matter of inter-district transfer, additional commissioner has no jurisdiction.18. this court finds that the point urged in support of the petition is addressed with ingenuity, however, it has been done without adverting to the rights of the person who stood superseded and denied his/her legal right due to wrongful absorption of writ petitioner.19. perusal of appeal memo preferred by the respondent no. 5 discloses that she did not, in any manner, challenge the order of absorption. she made a grievance that though she was eligible and her claim was approved by deputy director of education, for transfer and posting as a lecturer/teacher in junior college, she has orders in her favour from competent authority. of course, her promotion/transfer became impossible due to petitioner s transfer and absorption. thus, petitioner s transfer came under scrutiny as a necessary, but consequential issue.20. the grievance as made by the respondent no. 5 was perfectly within the jurisdiction of additional commissioner. the additional commissioner was bound to consider all questions and adjudicate. this court is satisfied that the questions, which fell for the consideration of additional commissioner, have been rightly considered by him.21. this court is satisfied that:[a] the petitioner had got the protection of status quo, and she has got the status to which she was not entitled.[b] respondent no. 5 was wrongfully denied what she was entitled to.[c] petitioner's claim and contentions contained in this petition are based on technicalities, which too do not find support in law.[d] any of the legal rights of the petitioner is not violated.[e] there is no error of law, or that of jurisdiction creeping in the impugned orders.22. in these premises, petition has no merit.23. rule is, therefore, discharged.24. in view that a totally untenable plea was pursued by the petitioner and benefit was derived by her being wholly unjust, the petitioner would be liable to pay costs to the respondents which are quantified in a sum of rs. 5,000-00 [rupees five thousand only] which be recovered from her salary and allowances wherever she is serving.