However, The Supreme Court Held A Different View

There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts.

There can not be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. Part-time temporary employees in government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. Arising out of SLP (C) Nos. Thiru R. Govindaswamy & Ors. Arising out of SLP (C) Nos. O R D E R : Dr. B.S. 1. These appeals have been preferred against the impugned judgments and orders dated 21.11.2012 and 16.11.2012 in Writ Appeal Nos. 2402, 2403 2404, 2405 of 2012 and 2555, 2556 of 2012 passed by the High Court of Madras, by which the High Court has regularised the services of part-time sweepers (respondents herein). Aggrieved, the appellant preferred the writ appeals which were dismissed.

3. Shri P.P. Rao, learned senior counsel appearing for the appellant has submitted that a direction to regularise the part-time employees itself is contrary to law and the said direction could not have been issued. 4. Per contra, Shri P.R. Kovilan P, learned counsel appearing for the respondents has submitted that as the respondents had been working as part-time sweepers for a very long time and not regularising their services would tantamount to exploitation. Therefore, no interference is called for in these appeals. 5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularized. The issue is no more res integra. In State of Karnataka & Ors. “There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution.

The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. 6. In Union of India & Ors. 7. This Court in State of Rajasthan & Ors. Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There can not be a direction for absorption, regularisation or permanent continuance of part-time temporary employees. Part-time temporary employees in government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. 8. The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected. With the aforesaid observations, the appeals stand disposed of accordingly. No order as to costs.

It’s also interesting to speculate whether these two cases will have an effect on the pending patent reform bills. The version passed by the U.S. House of Representatives last fall would require courts to award fees if the patentee’s position was not “reasonably justified.” See my post here. 4. As in other contexts, the Court has eschewed bright lines in favor of a more flexible approach. This has its advantages but also some disadvantages, particularly to the extent that it makes awards of fees less predictable. It isn’t likely, though, that we will discard the American Rule in favor of a straight loser-pays rule as have many other countries, at least not anytime soon. On another tangent, I wonder if this flexibility theme will carry over into the question of software patents at issue in Alice v. CLS Bank? 5. Finally, it’s interesting that the Court cites both copyright and trademark cases in support of its holding in Octane Fitness, suggesting that at some level the Court views all three bodies of law as roughly parallel.

The Supreme Court of Illinois has found that a convicted defendant has alleged enough facts to support a claim of ineffective assistance of counsel and remanded the case for further proceedings. In this case, the defendant was convicted after a bench trial for attempted first degree murder and the appellate court affirmed. The defendant then filed a pro se postconviction petition, claiming that his trial attorney was ineffective in failing to request a hearing on his fitness for trial. The circuit court summarily dismissed the petition as frivolous and patently without merit, and the appellate court affirmed. However, the Illinois Supreme Court held that the petition should not have been dismissed because it had stated the gist of a constitutional claim. The Court found that the petition met the burden of proof because it alleged that the defendant had told his trial attorney that he had been taking medication for bipolar disorder and depression and that he had previously attempted suicide. The defendant also alleged that he had been under medication at the time of his trial and that his attorney lied in claiming to be unaware of this. Attached to the petition were affidavits from defendant’s mother and aunt indicating that counsel had been informed about defendant’s bipolar medications and suicide attempts. Based on this record, the Court found that the claim of ineffective assistance of counsel in failing to seek a fitness hearing was sufficiently supported. The Court remanded for postconviction proceedings in which the lower court would have to determine whether to hold an evidentiary hearing. The case is People v. Brown and it is available here. Last year the Illinois Appellate Court sided with defendants who claimed ineffective assistance of counsel in at least twice. See here and here.

NEW DELHI: “Writing is very clear on the wall”, the Supreme Court warned the embattled real estate firm Amrapali Group on Tuesday over its repeated non-compliance and “hood-winking” of the court’s order. The top court asked the realty firm to reveal by December 3 the details of all its properties in the name of directors, their family members, relatives, Chief Financial Officers and statutory auditors in India and abroad. It gave one last opportunity to Amrapali Group and its directors and promoters to comply with each and every direction passed by the court since May last year. A bench of Justices Arun Mishra and U U Lalit said that Amrapali Group will have to disclose each and every detail and activity including financial transactions by which home-buyers’ money was transferred. It said the company has to disclose details of assets of all the directors since 2008, assets created in the name of their family members, relatives, Chief Financial Officer and statutory auditors.

The company is responsible for diversion of home-buyers’ money, it said. The court asked the embattled group to furnish details of all the land which has been sub-leased, structures raised on it and the financial benefits to the company. It directed the registry of the court to accept Rs 1 crore demand draft given by Amrapali’s CFO Chander Wadhwa and asked the group to depute four persons for assisting the forensic auditors in their investigation of company’s affair. It had asked the CFO to deposit Rs 11.69 crore with its registry within three weeks. It also asked a statutory auditor Anil Mittal to pay Rs 47 lakh. It restrained the realty firm from alienating its companies through which it had transactions and ordered attachment of such firms. The top court has also restrained Amrapali Group from creating any third party rights for 86 luxury cars and SUVs purchased from the company’s funds.

It has ordered the attachment of the group’s state-of-the-art, multi-speciality, 100-bed hospital situated at Greater Noida for which funds from sister company Ultra Home Construction Pvt Ltd were utilised. The court has also attached the bank accounts of GauriSuta Infrastructures Pvt Ltd, its director Sunil Kumar and its assets after forensic auditors disclosed that Amrapali transferred home-buyers’ money from one firm to sister companies using it as conduit. Besides, it has ordered attachment of towers which housed the company’s office and ‘Aqua Fortis’ villa in Goa for no one came forward to claim ownership. The two forensic auditors, appointed by the court to look into the affairs of Amrapali Group had said besides 47 sister companies, they stumbled upon 31 companies whose names were never disclosed by the embattled real estate firm. It had also initiated contempt proceedings against Sharma and its directors for prima facie violating court’s order and thwarting the course of justice.

I live in Cincinnati and we don’t have pelicans in Cincinnati, but it hurts me to see these beautiful birds covered in oil. The Federal Government of the United States has failed its people and there is good reason why so many people believe that the Federal Government does not work. The Federal Government, including the Congress have been corrupt, are corrupt and will continue to remain corrupt until big money is taken out of the election process. The Government of the United States is for sale to the highest bidder. The political philosophy that industries can be counted upon to regulate themselves is a fiction, a myth, and a lie. A lie pushed by a group whose agenda is to wring money for campaigns for re-election. People in America will have to get a lot smarter and stop swallowing all the crap about regulations, accountability and enforcement not being good for the country’s economy. Ask how good is this oil spill for the economy of this country? We are a big country, and that bigness is a factor that keeps us from zeroing in on those that would destroy our country, its lands and waters, for a few dollars more. Corporations buy politicians and politicians let the agencies exist in a comatose state to the need for regulations to be enforced. This oil spill, like the disaster on Wall Street, are connected at the hip. And, that hip is the government of the United States, its corrupt Congress and its corrupt Supreme Court that places money before all else.

The difference between ‘law’ and ‘equity’ has traditionally been explained as equity supplementing the black-and-white letter of the law. Where law is silent, equity steps in and even where the law provides for a particular treatment of a particular situation, equity might step in to avoid harsh consequences. The traditional distinction between ‘courts of law’ and ‘courts of equity’ has been on this grounds only where the person not having a right under the notified cannons of law approached the courts of equity for relief. The things are different now as these courts have merged now and courts of law are expected to deliver their decisions taking note of the equitable concerns and reasonably estimating the consequences of their decisions. The consequences of this merger are for one to find. A recent decision of the Supreme Court relating to medical termination of pregnancy of a mentally retarded child perhaps would throw some light on the continuing non-adoption of equitable concerns on judicial decisions.

The case before the Supreme Court related to the challenge (in appeal) to a decision passed by the High Court of Punjab and Haryana. For starters, ‘Parens Patriae’ relates to the obligation cast on the nation/state to take due care of its citizens/subjects as a legal guardian of any individual who requires its support and where none is forthcoming from other quarters. Nonetheless the High Court, taking extra measures to ascertain the factual position, constituted another committee to examine the physiological and medical position of the girl to bear the child. However, the Supreme Court held a different view. While the High Court went beyond the provisions of law in exercise of its equity jurisdiction, the same did not find favour in the Supreme Court. The Supreme Court finally adopted what the law provided and declined to traverse the boundaries set forth by the Parliament. In our opinion, perhaps the decision would be the correct appreciation of the Parliamentary law what is curious is that no account has been made for the child which would be born from such pregnancy. The Court may be right to hold that she has a right to bear the child but what happens when she is incapable of doing so? In such a situation, does the child-so-born also suffer being unable to receive the tender love and care of the mother?

Is Anyone Really Listening? Do judges really listen to defense lawyers and give deference to their opinions, particularly where the subject matter relates to the defense lawyer’s opinion as an officer of the court? Two Sixth Circuit cases that were decided in April shed some light on this burning question. First, the question came up in the context of a competency issue from a state court proceeding in Filiaggi v. Bagley, 04-3513 (4/14/06). In Filiaggi, the stun belt defendant was to wear during his state murder trial accidentally discharged. As a result, the defendant was evaluated by a psychologist who concluded that he was competent, but that further testing may be warranted. Based upon this information, and the testimony from a deputy guarding the defendant, the court decided that he was competent and proceeded to trial. The defendant’s two attorneys (one of whom was also a medical doctor!) then repeatedly, and incessantly, requested further psychological testing of the defendant because they both felt that defendant was incompetent to stand trial. All requests for further competency evaluations were denied and defendant was ultimately convicted and sentenced to death. On appeal to the Sixth Circuit from the denial of the habeas petition, Judges Batchelder and Gibbons ruled that no further competency testing or hearing was required and affirmed the conviction.

] means any issue which involved public interest at large. Anyone can approach court of law for redressing the issue involving public at large. This is the litigation filed in the court by any party other than the aggrieved party and not necessary that the person whose interest is violated approach the court. PIL is the tool which connects judiciary directly from public. Scope of judicial review is quite expanded because of the concept of PIL. One can approach apex court means Supreme Court or High Courts under article 32 and 226 respectively for any infringement of legal right by government or any statutory body even one can approach court of magistrate under sec. 133 of Cr. P.C. Talking about the scope in Indian scenario as there is no legislation governing PIL so as under article 141 of constitution law declared by Supreme Court is the law of land we have only precedents to relay upon. Actually this term is quite debatable.

Not to long ago I provided some information on some suggestions on how to avoid Swine Flu (H1N1) infection. I don’t want to repeat myself but there are some serious information what is worth expanding on and one is a prediction of sorts. The intent here is to suggest some effective solutions instead of harping on future problems. There is no satisfaction for anyone with the announcement of future suffering and possible death when maybe it will never occur. The big news is the Swine Flu has become a pandemic. Let me be clear and define what exactly a pandemic is. A pandemic is defined as a infectious disease that rapidly spreads around the world. I have mention from time to time that it will be a “when” not “if”. In other words a pandemics will occur, Swine Flu is what is happening now, tomorrow it will be something else. It’s always something. Given enough time we will see all varieties of disease.

There’s a lot of media hype. You have to look past that to the facts. The media must sell itself to stay in business. I would like to make some suggestions that go beyond whatever I said previously. For your information the WHO (World Health Organization) has increased the alert level from 3 to 5 in late May, early June. As of today’s date June 14, 2009 the WHO alert level is 6. This is the highest level. Their is none higher. Here is the definition of a level 6 as provided by WHO. Only time will tell is this is the ultimate big one. We need to take this very seriously. Remember that prevention is much more effective than a cure. So let’s look at the precautions and some basic supplies that should be on hand at all times. All that I about to recommend are “natural” solutions and these not only work against the Swine Flu but any flu. Also these same solutions work in case you do become infected. Let’s make one thing clear. You cannot become infected by consuming pork products.

If any pork should be infected it is destroyed by cooking it thoroughly. First, I don’t recommend vaccines. The CDC (Center for Disease Control) reports that the current vaccine was not formulated for this strain of swine flu. So forget any vaccination. Anyway it has been shown time and time again that flu vaccines don’t work. They can do more harm than good. Some of you may remember the big flu problem in 1976. Just in case you don’t, a small number of people got sick with what was then also called the Swine Flu. The CDC embarked on a massive vaccination program. Not only did it not protect the people from the flu, but it finally resulted in about 500 people getting something called Guillain-Barre syndrome. This was a degenerative nerve disorder directly caused by the flu vaccine used at that time. So forget any vaccination. Did you know that the pharmaceutical companies now have complete immunity from any legal attacks from people that experience side effects from any vaccination, whether it be public or private? Even if someone dies from a vaccine, the heirs cannot sue the pharmaceutical, so say the Supreme Court of the United States.

The current drugs prescribed for the flu are Tamiflu and Relenza. The H1N1 virus has developed almost total to Tamiflu and probably has to Relenza as well. So let’s get on with what you can do, naturally. 1. Get plenty of rest and sleep. This will allow all your energy to be directed to your immune system so it can fight the virus. 2. Wash your hands frequently. ANTI-BACTERIAL SOAP IS NOT EFFECTIVE, DON’T USE IT. After rinsing you hands in water, splash some hydrogen peroxide over your hands and let them air dry or use paper towels for drying. Do not use cloth towels as they could be infected. 3. If you have an outbreak in your area get some N95 or N100 facial masks to wear when you in crowds, in meetings or in the doctors office. N100 Mechanical filter respirators is best as it provides more filtration.