Gaya Prasad Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- executive instructions: [h.k. sema & v.s. sirpurkar, jj] held, where rules are silent on a particular point or there are no rules, government can issue executive instructions to fill the gap not covered by rules and such instructions must not be inconsistent with the rules already framed. labour & services seniority: [h.k. sema & v.s. sirpurkar, jj] determination of seniority of direct recruits appointed to the post of section officer (commercial audit) in railways - indian audit and accounts department section officer(commercial audit) recruitment rules, 1988 - no rules framed for determination of seniority executive instructions have been issued for determination of seniority which prescribed (1) passing of qualifying/departmental examination for the said purpose; and (2) a section officer passing an examination first would have precedent over a person who passes the examination later - contention that seniority be reckoned from the date of appointment, was rejected - further contention that merely accepting the terms and conditions of appointment would not debar the appellants from claiming the seniority from the date of appointment was rejected - other contention that once the incumbent passed the departmental examination his seniority would relate back to the date of appointment, also rejected. seniority; indian audit & accounts department section officer (commercial audit) recruitment rules, 1988,rule 12 comptroller and auditor generals manual of standing orders (administrative), volume i, para 5.6.6 - fixation of seniority inter se seniority of direct recruits to post of section officer rule not providing for determination of seniority standing orders validly made to fill up gap providing for passing of qualifying examination for determination of seniority accordingly, reckoning of seniority with effect from date appellants were qualified in prescribed examination and not from the date of initial appointment on probation held valid. - an elderly gentleman claiming that he was bhagwan dutta mishra has appeared before us today and stated that he had no grievance against the appellant and he would be happy if the matter was compounded.order1. this appeal has been filed impugning the judgment of the high court dated 13/2/2008 wherein the judgment of the additional sessions judge, sidhi (m.p.) convicting the appellants for an offence punishable under section 307 of the indian penal code and awarding a sentence of seven years r.i. and a fine, has been modified to a conviction under section 324/34 of the ipc.2. during the hearing of this matter the learned counsel for the appellant argued that as the parties were closely related to each other and had since compromised the dispute it was appropriate that the offence be compounded and the appellant be acquitted. the learned counsel also sought time to produce the complainant bhagwan dutta mishra before us. an elderly gentleman claiming that he was bhagwan dutta mishra has appeared before us today and stated that he had no grievance against the appellant and he would be happy if the matter was compounded. we questioned the learned counsel for the parties as to whether bhagwan dutta mishra could be identified by any of them. they rightly declined to do so and stated that only the ipse dixit of the gentleman was available before us.3. keeping in view this fact we are not inclined to compound the offence but as the dispute appears to have been settled and in any case is a trivial one, we direct that the appellants be released on probation under section 4 of the probation of offenders act, 1958, on conditions to be settled by the trial court. the appeal is allowed to the above extent.

Judgment:
ORDER

1. This appeal has been filed impugning the judgment of the High Court dated 13/2/2008 wherein the judgment of the Additional Sessions Judge, Sidhi (M.P.) convicting the appellants for an offence punishable under Section 307 of the Indian Penal Code and awarding a sentence of seven years R.I. and a fine, has been modified to a conviction under Section 324/34 of the IPC.

2. During the hearing of this matter the learned Counsel for the appellant argued that as the parties were closely related to each other and had since compromised the dispute it was appropriate that the offence be compounded and the appellant be acquitted. The learned Counsel also sought time to produce the complainant Bhagwan Dutta Mishra before us. An elderly gentleman claiming that he was Bhagwan Dutta Mishra has appeared before us today and stated that he had no grievance against the appellant and he would be happy if the matter was compounded. We questioned the learned Counsel for the parties as to whether Bhagwan Dutta Mishra could be identified by any of them. They rightly declined to do so and stated that only the ipse dixit of the gentleman was available before us.

3. Keeping in view this fact we are not inclined to compound the offence but as the dispute appears to have been settled and in any case is a trivial one, we direct that the appellants be released on probation under Section 4 of the Probation of Offenders Act, 1958, on conditions to be settled by the Trial Court. The appeal is allowed to the above extent.