1.

Even if the policy is within the ambit of law, the implementation of the same should not
be outside the ambit of law ?

Sindhi Education Society and Ors. vs. The Chief Secretary, Govt. of NCT of Delhi and Ors.
(2010) 8 SCC 49
66. Thus, the framework of reservation policy should be such, as to fit in within the
constitutional scheme of our democracy. As and when the Government changes its policy
decision, it is expected to give valid reasons and act in the larger interest of the entire community
rather than a section thereof. In its wisdom and apparently in accordance with law Government
had taken a policy decision and issued the circular dated 21st March, 1986 exempting the
minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE
Rules. Despite this and judgment of the High Court there was a change of mind by the State that
resulted in issuance of the subsequent circular of September, 1989. From the record before us, no
reasons have been recorded in support of the decision superseding the circular dated 21st March,
1986. It is a settled canon of administrative jurisprudence that state action, must be supported by
some valid reasons and should be upon due application of mind. In the affidavits filed on behalf
of the State, nothing in this regard could be pointed out and in fact, none was pointed out during
the course of arguments. Absence of reasoning and apparent non-application of mind would give
colour of arbitrariness to the state action. This aspect attains greater lucidity in light of the well
accepted norm that minority institution cannot stand on the same footing as a non-minority
institution

67. Besides that, State actions should be actio quaelibet it sua via and every discharge of its
duties, functions and governance should also be within the constitutional framework. This
principle equally applies to the Government while acting in the field of reservation as well. It
would not be possible for the Courts to permit the State to impinge upon or violate directly or
indirectly the constitutional rights and protections granted to various classes including the
minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic
minority institution to accept a policy decision, enforcement of which will infringe their
fundamental right and/or protection. On the contrary, the minority can validly question such a
decision of the State in law. The service in an aided linguistic minority school cannot be
construed as 'a service under the State' even with the aid of Article 12 of the Constitution.
Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be
enforced against the linguistic minority school. Having answered this question in favour of the
appellant and against the State, we do not consider it necessary to go into the constitutional
validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open.

68. For the reasons afore-stated, we allow the appeal and hold that Rule 64(1)(b) and the circular
of September, 1989, are not enforceable against the linguistic minority school in the NCT of
Delhi

The State of Jharkhand and Ors. V Brahmputra Metallics Ltd. and Ors.
2021 (1) SCJ 131
21. The alacrity expected by the Industrial Policy 2012 of the State of Jharkhand did not find a
resonance in its administrative apparatus. The High Court has justifiably referred to this as a case
of bureaucratic lethargy. As a matter of first principle, there can be no gainsaying the fact that
when a statute, such as the Bihar Act 1948, empowers the state to grant an exemption from its
provisions, the State has the discretion to determine the date from which and the period over
which the exemption will operate. An individual or entity cannot compel the State to issue a
notification providing for an exemption or to insist upon the terms on which the government
does so. Whether an exemption should be issued and if so, the terms for the exemption, have to
be determined by the State. But this case does not rest on that principle nor did the claim of the
Respondent require the High Court to make a departure from it. The Industrial Policy 2012
contained a representation that a rebate/deduction would be granted. It held out a representation
that a notification would be issued in a month. These were solemn commitments made by the
State of Jharkhand. What remained was their implementation by issuing a notification, which
was to be done within one month. The State government evidently intended to implement and act
in pursuance of its commitment. For, ultimately, it did issue a notification. But it did so on 8
January 2015 - after a period of a month envisaged under the Industrial Policy 2012 had dragged
on for nearly three years.
22. It is time for the State government to take notice of the observations of the High Court in
regard to administrative lethargy. If the object of formulating the industrial policy is to
encourage investment, employment and growth, the administrative lethargy of the State
apparatus is clearly a factor which will discourage entrepreneurship.

2. Transfer of physically disabled persons should be near there hometown on native place
or near family?

Sudhanshu Tripathi vs. Bank of India and Ors. 2020 (2) ESC 764

16. In the considered opinion of this Court, as the petitioner undisputedly is a disable person, is
certainly entitled for the protection provided under the Right of Persons with Disabilities Act,
2016 and various notifications issued by Government of India either under the earlier Act of
1995, which stands repealed on account of enactment of the Act of 2016. No reason has been
assigned for accommodating the respondent No. 3 nor any reason has been assigned for
transferring out the petitioner from the branch in question except of making a bald statement that
transfer order is a routine transfer done on account of administrative exigency.

18. In the considered opinion of this Court, the transfer order in the present case deserves to be
quashed. The another important aspect of the case is that the respondents while justifying the
transfer order have gone to the extent in stating that the petitioner's sister is doing B.D.S. course.
The petitioner is having a mobile. The petitioner's hobby is listening music. The
respondents/Bank is having no right to comment upon the personal life style of the physically
handicapped persons. In order to defend the case, the respondents have crossed all norms of
decency and human behavior. It is really very unfortunate that the Officers, who have filed the
affidavit do not understand the plight of a human being, who suffers from disability, as God has
been very kind to them and they do not possess any disability. Such remarks against a disable
person are unwarranted, uncalled for and the practice of making such remarks by the respondents
is deprecated.
19. Learned counsel appearing for the respondents/Bank has fairly stated before this Court in
future they will be taking all precautions not to make any personal remarks against disable
persons, and therefore, this Court is not imposing any cost in the matter. The respondents should
more careful in the future before making such type of remarks against the disable persons.

20. Resultantly, the present writ petition stands allowed. The impugned transfer order dated
3.1.2017 is hereby quashed. A copy of this order be forwarded to the Managing Director of the
Bank of India also Certified copy as per rules.

Kamlesh Sharma vs. The State of Madhya Pradesh and Ors. (12.08.2021 - MPHC) :
MANU/MP/0846/2021

12. From bare reading of the aforesaid provision/clause of the transfer policy, it is clear that the
employees carrying more than 40% disability generally should not be transferred and only on the
application given by them for transfer on the own request, can be taken into consideration by the
authorities. As it has already been argued that the petitioner has never submitted any
representation requesting her own transfer to such a distant place and that the petitioner has not
been relieved till date, she has prayed for quashment of the impugned order.

13. Considering the overall facts and circumstances of the case and the specific statement made
by counsel for the petitioner that the petitioner has not been relieved till date, this court deems it
appropriate to entertain this writ petition and considering the judgment rendered by Delhi High
Court, the petition is disposed of with a direction to the petitioner to submit a detailed
representation against the transfer order to the respondent authorities within a period of seven
days from the date of receipt of certified copy of the order and in turn, the respondent authorities
are directed to consider the case of petitioner and decide the same in accordance with law
considering the policy issued by the State Govt. with respect to the transfer of disabled persons
as well as the judgment passed by the Division Bench of the Delhi High Court. Aforesaid
representation be decided within a period of one month from the date of receipt of certified copy
of the order and till the representation is decided, the petitioner is permitted to continue on the
present place of posting.

Ravinder Kumar Dhariwal and Ors. vs. The Union of India (UOI) and Ors.
MANU/SC/1275/2021
27. The PwD Act was enacted to give effect to the 'Proclamation on the Full Participation and
Equality of the People with Disabilities in the Asian and Pacific Region' to which India is a
signatory. In April 2002, the Economic and Social Commission for Asia and the Pacific
proclaimed the decade (1993-2002) as the Asian and Pacific Decade of Disabled Persons. The
proclamation aimed to promote the human rights of disabled persons by providing an accessible
environment, social security, safety nets and employment, and sustainable livelihoods, premised
on equality and non-discrimination.9 Chapter VII of the PwD Act is titled 'Affirmative Action',
and Chapter VIII is titled 'Non-Discrimination'. Sections 42 and 43 in Chapter VII stipulate that
the appropriate Governments must formulate schemes to provide aids and preferential allotment
of land to persons with disabilities. Sections 44 to 47 in Chapter VIII provide for special
measures in transportation, roads, built environment and employment for persons with
disabilities. For instance, Section 44 states that special measures must be taken to make transport
vehicles such as buses and trains, and toilets in such transport vehicles accessible to persons with
disability. Section 45 stipulates that the appropriate government must endeavour to, inter alia,
make walking on the roads for disabled persons more accessible by installing auditory signals,
and engraving on the zebra crossing. Section 46 provides that a built-in environment, conducive
to persons with disabilities must be provided. While Sections 44 to 46 impose positive
obligations on the State to reasonably accommodate persons with disabilities, Section 47
imposes both positive and negative obligations on the Government. Sub-sections (1) and (2) of
Section 47 state that the government employer must not terminate, demote or deny promotion on
the ground of disability. The proviso provides a positive obligation on the employer that if the
post is not suitable to the employee after acquiring disability, then he could be shifted to another
post with the same pay and service benefits. However, if it is not possible to adjust the employee
against any post, then he may be kept on a supernumerary post until he obtains superannuation
3. It is not always necessary to seek leave of the court to file a rejoinder ?

Shakoor and Ors. vs. Jaipur Development Authority, Jaipur and Ors. 1986 (2) WLN 298
Orde r8, Rule 9:-

Subsequent pleadings:-- No pleading subsequent to the written statement of a defendant other

than by way of defence to a set-off (or counter claim) shall be presented except by the leave of
the Court and upon such terms as the Court thinks fit, but the Court may at any time require a
written statement or additional written statement from any of the parties and fix a time for
presenting the same.

7. Order 8, Rule 9 permits the subsequent pleadings by the leave of the Court. This provision no
doubt relates to the proceedings in a suit, but Section 141 deals with miscellaneous proceedings.
The wordings of Section 141 clearly lay down that the procedure provided in this Code in regard
to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of
civil jurisdiction. The proceedings for temporary injunction are miscellaneous proceedings which
are separately registered and decided by a separate order. Any order passed under Rule 1, Rule 2,
Rule 2-A, Rule 4 or Rule 10 of Order is appealable under Clause (r) of Order 43, Rule 1, C.P.C.
Any order passed on an application under Order 39, Rule 1 and 2 is temporary in the sense that it
remains in force till the final disposal of the suit, but it cannot be lost sight of that such order has
a very important effect and bearing as the main suit takes long number of years before final
decision. Such order passed on an application for temporary injunction has even more important
bearing and effect in a suit for permanent injunction. Sometimes the Court has to pass an order in
the form of mandatory injunction on an application for temporary injunction in order to meet the
ends of justice.

M.L. Gupta vs. Kripal Singh and Ors

98 (2002) DLT 683

Case Note:
a) It was held under Order 8 Rule 9 of the Civil Procedure Code,1908, that replication filed with
leave of Court is a part of the pleadings of plaintiff and is supplement to the plaint - Further, if in
case all together new facts had been pleaded in replication, then respondent have every right for
grant of amendment of written statement to rebut those pleadings - Since, in the instant case, the
petitioner never sought leave of Court to amend the written statement or to file additional
statement in rebuttal to the new pleadings in replication, the petitioner should had been deemed
to waive his righ

Saiyed Sirajul Hasan vs. Sh. Syed Murtaza Ali Khan Bahadur & Ors
ILR 1992 Delhi 401

6. 1 feel that 0. 8, R. 9 read in conjunction with 0. 6, R. 5 lays down a rule of pleading and deals
with the situations where, for example, a party wants to make a further pleading after the written
statement has been filed on account of his having failed to raise certain pleas in the original
written statement, or where a minor defendant on attaining majority wants to file fresh written
statement or where the defendant having not appeared previously and having been proceeded
against ex parts, joins the proceedings and seeks to file written statement. The tenor of this
provision shows that a party seeking to file additional written statement has necessarily to show
to the court the circumstances as to why he failed to raise the pleas in the original written
statement. Panchapakesan, J. tells us in Nanjan v. Selai, MANU/TN/0579/1957 : AIR 1958 Mad
383 as to how the matter is proceeded with under this provision. He says (Para 2):

"If the party wants to file an additional written statement, he has to file a petition stating the
reason why he failed to say these things in the original written statement, and what excuse is for
allowing him to file an additional written statement at that stage. Then the other side has to be
given an opportunity to oppose the petition and contend that such additional written statement
should not be entertained at that stage. Then the Court has to give its decision as to whether the
additional written statement is to be admitted or not."
Ishwar Lal and Ors. vs. Ashok and Ors.
1998 (3) WLC 223

11. The legal position from the above discussions emerges as under:

(a) Granting leave under Order 8 Rule 9 CPC is a matter of judicial discretion vested in the Trial
Court.

(b) plaintiff has to assign cogent reasons for seeking permission to file rejoinder to the written
statement.

(c) If no rejoinder is filed by the plaintiff it does not amount to be an admission of the plea in the
written statement.

(d) While deciding the question whether leave should be granted or not the Trial Court shall take
into consideration the delay if any that has taken place in filing the application seeking leave to
file rejoinder of the written statement.