Avdesh Chander Vs. State and Others - Court Judgment

Excerpt:
constitution of india - article 226--writ--duty of writ court--petitioner challenged reduction in pay and recovery-- single judge issued notice only on the point of recovery--not justified--single judge directed to allow the petitioner to argue all the points raised.;special appeal allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. ordershethna, j.(1). the appellant is the original petitioner. he was appointed as constable on 28.12.65 and later on promoted to the post of head constable on 30.6.78. he was given further promotion on the post of assistant sub-inspector (asi) in november, 1997. on completion of 18 years service, he was given selection pay scale by an order dated 25.1.92 by the superintendent of police, sri ganganagar by his order dated 26.6.92. he was given selection pay scale after completion of 27 years service as per order dated 25.1.92 by order dated 26.5.93 (annex.2) passed by the district superintendent of police, sri ganganagar.(2). on 23.7.92 inspector general of police (head quarter, rajasthan, jaipur) passed order to the effect that if an employee is awarded censure' then his service cannot be treated as unsatisfacotry and such employees are entitled for the selection pay-scale (annex.3). on 24.8.95, another order was passed by igp rajasthan, jaipur, to the effect that the employee who have been awarded penalty of 'censur' after 24.8.95 would not be entitled for selection scale (annex.4). in pursuance of that order the district superintendent of police passed order dated 30.7.98 reducing the pay scale of the petitioner filed (annex. 5), therefore, the petitioner filed s.b.c. writ petition no. 2639/98 before this court praying that the impugned order dated 30.7.97 (annex.-5),be quashed and set aside and the respondents be directed not to recover the amount which was already paid to the petitioner in pursuance of the earlier order dated 26.5,93 (annex.2),(3). when the writ petition was placed for 'admission' before the learned single judge on 11.8.99, the learned single judge ordered to issue notice only on the point of recovery of amount paid to the petitioner, with the observation that the matter shall be disposed of on the next date of hearing, till then it was ordered that no recovery of the amount shall be made from the petitioner in pursuance of the order (annex. 5) dated 30.7.98, though, the petitioner has challenged the impugned order at annex. 5 itself before this court. the learned single judge ordered to issue notice on a limited point regarding recovery of amount already paid to the petitioner. according to mr. h.s. sidhu, it amounts to dismissal of the writ petition on the rest of the- points, if he does not challenge the same then he would be debarred from raising this contention in future as and when writ petition was finally decided by the learned single judge, therefore, the special appeal is filed.(4). mr. ashok chhangani, learned counsel for the respondents stated at the bar that the respondents have not yet filed reply- affidavit and after filing of the reply-affidavit, the appellant petitioner is always free and at liberty to raise the point and all other points raised in the writ petition, after obtaining permission from the learned single judge.(5). against order of issuing notice, ordinarily this court does not interfere in special appeal but on reading the order passed by the learned single judge as a whole, we find that the learned single judge before deciding the writ petition finally, has already closed the doors of the appellant petitioner to argue other contentions raised before him. in case of children film society of india vs. sridhar sharma (1), the hon'ble supreme court has made it very clear and it was held that if no appeal was preferred against such type of order then it would not be open to challenge.(6). in view of the above discussions, we accept this special appeal and request the learned single judge to permit the appellant petitioner to raise all points and argue all other points including the legality and propriety of orders passed at annex.4 and 5 passed by the i.g.p. and district superintendent of police respectfully and decide the same in accordance with law.

Judgment:
ORDER

Shethna, J.

(1). The appellant is the original petitioner. He was appointed as Constable on 28.12.65 and later on promoted to the post of Head Constable on 30.6.78. He was given further promotion on the post of Assistant Sub-Inspector (ASI) in November, 1997. On completion of 18 years service, he was given Selection Pay Scale by an order dated 25.1.92 by the Superintendent of Police, Sri Ganganagar by his order dated 26.6.92. He was given Selection Pay Scale after completion of 27 years service as per order dated 25.1.92 by order dated 26.5.93 (Annex.2) passed by the District Superintendent of Police, Sri Ganganagar.

(2). On 23.7.92 Inspector General of Police (Head Quarter, Rajasthan, Jaipur) passed order to the effect that if an employee is awarded censure' then his service cannot be treated as unsatisfacotry and such employees are entitled for the Selection Pay-scale (Annex.3). On 24.8.95, another order was passed by IGP Rajasthan, Jaipur, to the effect that the employee who have been awarded penalty of 'censur' after 24.8.95 would not be entitled for Selection Scale (Annex.4). In pursuance of that order the District Superintendent of Police passed order dated 30.7.98 reducing the Pay Scale of the petitioner filed (Annex. 5), therefore, the petitioner filed S.B.C. Writ Petition No. 2639/98 before this Court praying that the impugned order dated 30.7.97 (Annex.-5),be quashed and set aside and the respondents be directed not to recover the amount which was already paid to the petitioner in pursuance of the earlier order dated 26.5,93 (Annex.2),

(3). When the writ petition was placed for 'Admission' before the learned Single Judge on 11.8.99, the learned Single Judge ordered to issue notice only on the point of recovery of amount paid to the petitioner, with the observation that the matter shall be disposed of on the next date of hearing, till then it was ordered that no recovery of the amount shall be made from the petitioner in pursuance of the order (Annex. 5) dated 30.7.98, though, the petitioner has challenged the impugned order at Annex. 5 itself before this Court. The learned Single Judge ordered to issue notice on a limited point regarding recovery of amount already paid to the petitioner. According to Mr. H.S. Sidhu, it amounts to dismissal of the writ petition on the rest of the- points, if he does not challenge the same then he would be debarred from raising this contention in future as and when writ petition was finally decided by the learned Single Judge, therefore, the Special Appeal is filed.

(4). Mr. Ashok Chhangani, learned counsel for the Respondents stated at the bar that the respondents have not yet filed reply- affidavit and after filing of the reply-affidavit, the appellant petitioner is always free and at liberty to raise the point and all other points raised in the writ petition, after obtaining permission from the learned Single Judge.

(5). Against order of issuing notice, ordinarily this Court does not interfere in Special Appeal but on reading the order passed by the learned Single Judge as a whole, we find that the learned Single Judge before deciding the writ petition finally, has already closed the doors of the appellant petitioner to argue other contentions raised before him. In case of Children Film Society of India vs. Sridhar Sharma (1), the Hon'ble Supreme Court has made it very clear and it was held that if no appeal was preferred against such type of order then it would not be open to challenge.

(6). In view of the above discussions, we accept this Special Appeal and request the learned Single Judge to permit the appellant petitioner to raise all points and argue all other points including the legality and propriety of orders passed at Annex.4 and 5 passed by the I.G.P. and District Superintendent of Police respectfully and decide the same in accordance with law.