Case BriefsHigh Courts

Madras High Court: V. Parthiban, J., expressed that plea of public interest in a private loan transaction is only a mask to conceal for petitioners’ interest with a view to obstruct the enforcement of contractual obligation.

Instant petition was filed against the letter of respondent calling upon the petitioner company to forthwith pay Rs 1995,05,17,808 within 7 days failing which, further action would be taken including revocation of Restructuring Agreement entered into between the parties.

Analysis, Law and Decision

What is challenged in the instant petition?

The dispute is between private entities. A communication dated 30-04-2021 issued by the fourth respondent, a private company (an Asset Reconstruction Company), against the petitioner invoking certain clauses in terms of restructuring agreement of loan between the contesting parties, was challenged.

With respect to the issue of maintainability of writ against a private person or private legal entity, the legal position was no more res integra, as various decisions of the Supreme Court and High Court held that the issuance of the writ could not be denied merely because it sought to be issued against a private person or private entity.  Hence, the Court observed that,

“…this Court does not wish to open up any fresh vista on the rudimentary understanding of the progressive expansion of public law jurisdiction in matters where the Court finds interplay of private interest and public duty.”

 The judicial endeavour is appreciation of the relationship of the parties, their mutual rights and obligations within the private and commercial framework and in that relationship collaterally or concomitantly any public duty is imposed, or public interest is involved to bring the dispute arising from such relationship within the mischief of writ jurisdiction of the Court or not?

Petitioner’s primary contention was that, the 4th respondent which stepped into the shoes of consortium of initial lenders namely 9 nationalised banks failed to implement and comply with the Reserve bank of India circulars before issuing the impugned communication. In view of such a contention, it was stated that when there was a duty cast upon the banks and the financial institutions which admittedly included the 4th respondent, failure to follow the circulars amounted to abdicating its public duty enjoined upon them and in that view of the matter, a command ought to be issued by the Court by way of a Writ for their compliance.

Judicial Scrutiny

In a contractual relationship purely governed by commercial consideration, enforcing the terms of contract/agreement by one party as against the other could be subjected to judicial scrutiny under writ jurisdiction of the Court, is a knotty question and the answers are not be found on any definite legal principles or defined contours of factual circumstances.

Elaborating the above, it was stated that as a consequence of the march of law the judicial review is directed against the action, decision making process and not concerned with identity of the body as such.

High Court observed that the circular dated 27-03-2020 which appeared to be the fulcrum of the petitioner’s submission for maintaining the writ petition began with the preamble that certain regulatory measures had been initiated and announced by the Reserve Bank of India for schedule of payment due to Covid-19 crisis.

The said circular envisaged granting of moratorium that all payments due between March 2020 and May, 2020 would be shifted by 3 months extending the period of the payment to August 2020. The circular, while delineating the policy, permitted the financial institutions to consider grant of the benefit of moratorium. The circular also envisages exemption from the benefit in regard to the loan accounts being declared as NPA.

Further, in the said circumstances, admittedly individual financial institutions were given latitude and discretion to take a call in regard to the extension of the moratorium benefit to its borrowers.

Entitlement of the petitioner as to the benefit fell squarely within the framework as between the 4th respondent and petitioner.

When the relationship is founded on the Commercial and the contractual terms and understanding, the extension of the benefit of the moratorium by one party in favour of the other party, is dependent on various facts to be taken into consideration within the private and contractual precincts of such relationship.

Bench expressed that,

If this Court were to investigate into the disputed areas of understanding between the private parties, it would certainly amount to pitch forking a public law jurisdiction into a private dispute arising under a valid contractual relationship between the parties.

High Court stated that merely because RBI Circulars were issued during the pandemic crisis, it cannot change or transform the core character of the relationship of the parties and assume the coloration of public interest.

Bench expressed that it does not find any public character attached to the relationship of the parties. Transaction between them was plainly commercial without a tinge or shade of public function involved.

Further, the Court did not see any public duty imposed on 4th respondent that is referable in the context of complying with certain provisions contained in the enactments like Industrial Disputes Act, Minimum Wages Act, the Factories Act or the Statutes relating to Pollution etc., or even certain duties which have been imposed by common law, custom, or even contract stretching the requirement in terms of the observation of the Supreme Court of India in Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331.

Public duty becomes enforceable only when there is legal compulsion for its adherence.

Court opined the following:

  • There was no compulsion imposed on 4th respondent to extend the benefit of moratorium, regardless of the nature of the default and nature of agreement between the parties.
  • In absence of any compulsion/obligation or legal mandate to follow a particular course of action, the right exercised by the 4th respondent within the 4 corners of the commercial agreements and the disputes arising thereof would certainly not come within the broad context of public law recourse.

Activities of Port: Public Interest?

It was submitted by 1st respondent Port that the activities with respect to 1st respondent Port substantially touch upon the public interest. Any disruption of its activities by the adverse action of 4th respondent would only lead to a short supply of essential goods and ultimately, would only undermine the public interest.

Employment was also provided by the 1st respondent to thousands of employees and the continuance of payments of salaries and other related obligations would also get affected as a consequence of respondent 4’s action.

Bench stated that no doubt Port activities are essential services to keep the public interest afloat, but the 1st respondent was again a private company. Its activities may touch upon the public interest, nevertheless, the petitioner cannot be allowed to craftily project the port activities for the purpose of hitching on the public interest bandwagon.

In High Court’s view, the petitioner attempted to stealthily subserve their private interest behind the facade of public interest citing port activities.

On a wafer-thin legal basis, contending RBI circulars being not followed, the writ petition was sought to be maintained. Court stated that such slender premise is not good enough to maintain the writ petition in the circumstances of the case. 

In view of the Supreme Court decision in Central Bank of India v. Ravindra, (2002) 1 SCC 367, it was observed that where transactions concerned are not squarely governed by the RBI Circulars, in that case, such circulars are to be treated as standards to judge whether the action taken by the private Banks is opposed to any public policy. Hence, the petitioner cannot compel the Court to issue a command, namely Mandamus and more so, Writ of Certiorari.

Facts in the case of Bombay High Court’s decision in TransconIconica (P) Ltd. v. ICICI Bank, 2020 SCC Online Bom 626, are identical to the present matter. In the said matter directions were passed.

In Karnataka High Court’s decision of Velankani Information Systems Ltd. v. Ministry of Home Affairs, 2020 SCC Online Kar 835, the challenge was to the action initiated by a private bank and the challenge principally was on the ground that Bank did not follow RBI Circular.

The Court found that the Bench in the above decision delved pervasively into the factual disputes and held that petitioner was entitled to the moratorium protection and in that context, RBI was directed to enforce the recovery package as contained in the RBI Circular and consequently the action initiated by the private lending institution came to be set aside.

Further, the Court remarked that it is unable to follow the above judgment.

In the present matter, the very entitlement of the benefit of a moratorium was being questioned seriously and the Court was also of prima facie view that there appears to be a substantial force in the submissions of 4th respondent. Therefore, the applicability of the RBI circular itself being an unsure case of the petitioner, question of maintaining the petition would necessarily fail on that plank.

“… already stretched boundaries of writ jurisdiction for advancing the bonafide constitutional goals cannot be further stretched to bring all private disputes within the fold of judicial review.”

 Concluding the decision, Bench held that in exercise of writ jurisdiction, the Court would certainly not get involved in the commercial disputes entirely arising from the private relationship driven by commercial consideration and issue any command as that would amount to injudicious intrusion and invasive transgression into the defined areas of conflict governed by mutual rights, liabilities and obligations.

In view of the above discussion, petition was dismissed. [Marg Limited v. Karaikal Port (P) Ltd., WP No. 12381 of 2021, decided on 2-07-2021]

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and Hemant Gupta*, JJ., overruled the decision of Punjab & Haryana High Court wherein the High Court had held that the employees of Punjab Co-operative Milk Producers Federation Ltd. were entitled to pay scale equivalent to their counterparts in the State of Punjab from 01-01-1986, though the revised pay scale was allowed by the Federation w.e.f. 01-01-1994. The Bench stated,

“The objective of the Federation was not to give employment but to increase milk production in the State. The employees are facilitators of the employer to achieve such objective and thus demanding enhanced wages without considering the objective and financial condition of the employer would not be ideal. The employer and the employees have to work together to achieve the objective of the organisation i.e. white revolution…”

Factual Matrix of the Case

The case of the Federation was that it was suffering with acute financial stringency, due to which the State had granted a loan of Rs 8 (sic 12) crores which the Federation could not repay and, therefore, the said amount was converted into the share capital of the State Government with the Federation. Keeping in view the financial stringency, the National Dairy Development Board gave a loan of Rs. 4 crores to the Federation, which lead to the change in management, thereby, causing restructuring of the Federation. It was in that backdrop that the Federation issued a notice under Section 9-A of the Industrial Disputes Act, 1947 to all the employees on the ground of financial stringency showing its intention to effect the changes of revised pay scale from 01-01-1994 instead of following the recommendations Punjab Government Anomaly Committee with regard to grant of revised pay scale w.e.f. 01-01-1986.

The employees of the Federation raised protest and a committee was constituted to examine the dispute. The committee’s findings were that,

In case the revision of pay scales is taken up w.e.f. 1.1.1986, the amount of arrears upto 31.12.1993 works out to Rs.1.5 crore approx., Taking into consideration the financial health of the Federation, the Committee was of the view that payment of arrears would further shatter the financial health of the Federation and it would not be possible for it to pay such a huge amount in the shape of arrears. Hence, the Committee after considering the above as well as various other aspects, recommended that the improved pay scales may be implemented w.e.f. 01-01-1994 without giving the benefit of even notional pay fixation w.e.f. 01-01-1986.

The report of the Committee was considered and the grant of revised pay scale w.e.f. 01-01-1994 was approved by the Board of Directors of the Federation as well as the Registrar (Cooperative Societies). Thus, subsequently, revised scales with effect from 01-01-1994 were granted to the employees.

Grievance of the Employees

The counsel for the employees, Mr. Govind Goel contended that the writ petition had been filed on behalf of one Head Draftsman, two Draftsman, two Junior Draftsman and two Surveyors. Assailing the decision of the Federation, the counsel argued that the decision to not grant the revised pay scale on the basis of the report of the Anomaly Committee was wholly arbitrary and discriminatory, since out of the 1573 employees of the Federation, those seven employees alone had been discriminated. Reliance was placed by the employees on Purshottam Lal v. Union of India, (1973) 1 SCC 651, wherein the Supreme Court had held that, “revision of pay scale recommended by the Pay Commission after acceptance by the Government could not be denied to a category of employees as it would be an act of discrimination.”

Analysis by the Court

In Hindustan Times Ltd. v. Workmen, (1963) 1 LLJ 120, it had been held that, “numerous complex factors, some of which are economic and some spring from social philosophy give rise to conflicting considerations that have to be borne in mind and that such factors are not static in nature. The financial position of the employer, state of national economy, and the requirements of a workman living in a civilized and progressive society also are to be recognized.” Similarly, in A.K. Bindal v. Union of India, (2003) 5 SCC 163, it was held that the non-revision of pay scale would not amount to violation of fundamental rights guaranteed under Article 21 as it would be stretching too far and cannot be countenanced. It was held that even under industrial law, workmen should get a minimum wage or a fair wage but not that the wages must be revised and enhanced periodically.

Distinguishing the judgment in Purshottam Lal, the Bench stated that it was altogether on different facts as in the instant case,

“The Committee has considered that there was no work for the writ petitioners. Still, instead of abolishing the post, the Federation granted revised pay scale which was better than the pay scale recommended by the Pay Commission but less than the pay scale granted by the State Government in pursuance of the recommendations of the Anomaly Committee.

Thus, the Bench held that it could not be said to be a discriminatory or arbitrary decision more so in exercise of power of judicial review. There existed good reasons not to grant higher pay scale as there was no work of the post to which the (workmen-respondents) were appointed but were given alternate assignments. Further, the Bench opined,

“The employer and the employees have to work together to achieve the objective of the organisation i.e. white revolution rather frittering away the gains made by the joint efforts of the management and employees by giving increased wages to the employees irrespective of its capacity to bear such expenses. The income generated by the Federation is not to be expanded only on payment of salary but is also required for up gradation of technology, renovation and expansion of plants etc.”

Judicial Review of Administrative Actions

In Tata Cellular v. Union of India, (1994) 6 SCC 651, it had been held that, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. Similarly, in Harshit Agarwal v. Union of India, (2021) 2 SCC 710, it was established that judicial review of administrative action is permissible on grounds of illegality, irrationality and procedural impropriety.

Thus, holding that the fact that the Federation was in financial difficulties was based upon relevant material, the Bench held that the process to arrive at such decision could be said to be flawed only on the permissible grounds of illegality, irrationality and procedural impropriety, and neither the decision-making process, nor the decision itself suffered from any such vice.


Hence, rejecting the submission that there would not be financial burden on the federation in view of the fact that the High Court had ordered payment of arrears for a period of 3 years and 2 months before the date of filing of writ petitions, the Bench opined that restricting it for a period of 3 years and 2 months would not be helpful in respect of the financial condition of the Federation as during the relevant time the federation was suffering from huge losses.

In view of the above, the order of the High Court was held to be unjustified, in excess of the power of judicial review and, consequently, was set aside.[Punjab State Co-Operative Milk Producers Federation Ltd. v. Balbir Kumar Walia, 2021 SCC OnLine SC 461, decided on 09-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court:

Counsel for the Federation: Adv. Patwalia

Counsel for the Respondents: Adv. Govind Goel

*Judgement by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsHigh Courts

Jharkhand High Court: Sanjay Kumar Dwivedi, J., allowed the writ petitions and held the merit list prepared by the JPSC as illegal, appointments made without following the procedure as nullity and directed to prepare a fresh merit list with reference to marks in written test and interview without adding the marks of Paper-I in the merit list considering minimum qualifying marks in each paper and thereafter finalize the selection in accordance with law.

The prayer made in these writ petitions is for quashing the result of the 6th Combined Civil Services Examination, 2016 and declaring that the action of the respondent-JPSC in adding the total marks obtained by the candidates and not the minimum qualifying marks in each paper and the marks of Paper-I while preparing the merit list is illegal.

Counsel for the petitioners submitted that JPSC has published the result arbitrarily and against the provision of Clause-13 of the advertisement. He further submitted that the respondents were very much supposed to complete the recruitment process strictly as per the rules and the conditions stipulated in the advertisement. It was also submitted that Clause-13 commonly applies upon both the examinations i.e. Preliminary and Mains, thus different interpretation cannot be allowed for the purposes of the Mains examination. Such action of the respondents is hit by the principle of res judicata. It was also added that the mode of selection as appearing from the advertisement is that Paper-I of Mains examination will be a qualifying paper, meaning thereby, its marks cannot be added to the score of the candidate while calculating the total score for drawing the merit list. He also submitted that counting marks of qualifying paper will amount to non-adherence to the selection process stipulated in the advertisement and changing the rules of game after game has begun.

Counsel for the respondents submitted that the contentions of the petitioners are fit to be rejected and there is no merit in these petitions and the same are liable to be dismissed. He further argued that there is no illegality in preparing the merit list on the basis of minimum qualifying marks taken together in all the papers in the written examination and not in each paper.  It was further submitted that the petitioners were well aware about the terms and conditions of the advertisement and thereafter they have participated in the selection process and when they have not been declared successful, they are questioning the criteria that marks of qualifying paper cannot be added while preparing the result of the Mains examination, which is misconceived and not maintainable, in view of the fact that after appearing in the examination, the terms and conditions of the addition of the marks of qualifying marks cannot be challenged by the unsuccessful candidates.

The Court after perusing recommendation by various expert committees formed in this regard and Clause 12(B)  of the advertisement observed that, it transpires that the said Paper-I was only for the purpose of assessing the working knowledge of the candidates and marks obtained therein cannot be counted in determining the merit of the candidates. It was clearly stipulated in the advertisement as well as in the recommendation of the V.S. Dubey Committee report that    Paper-I will be only a qualifying paper in which out of 100 marks every student will have to secure only 30 marks. Thus the inclusion of 50 marks General English component will not adversely impact the chances of the students from Hindi/Regional Language background. It is a well-settled position that the principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned provisions clearly shows that it confers arbitrary, unanalysed or unbridled power.

It was observed that the minimum qualifying marks under Clause-13 of the advertisement has already been adjudicated by this Court in the case of Joy Guria  v. State of Jharkhand [Civil Appeal No. 9217 of 2018] in relation to the same examination and the respondents cannot be allowed to take contrary view. Hence, the respondent-JPSC has published the result without following the criteria of minimum qualifying marks in each paper. The Court further relied on judgment Jitendra Kumar v. State of Haryana, (2008) 2 SCC 161, and observed that the Commission holds a constitutional duty to see that the entire selection process is carried out strictly in accordance with law fairly, impartially and independently. The selectors appointed by the Commission or its Chairman and members are forbidden to take recourse to favouritism. Showing any favour to any candidate as an irrelevant or extraneous consideration would be contrary to the constitutional norms of equality envisaged under Articles 14 and 16 of the Constitution of India. Fear or favour on the part of the Commission cannot be condoned.

The Court relied on judgment Ram Kumar Kashyap v. Union of India (2009) 9 SCC 378 observed that that the State Public Service Commission, although is a constitutional body, but that does not mean that if any illegality has been committed, which is apparent from the reasoning and finding recorded by the Court and appropriate direction is required to be passed by the Court to deal with the Commission, otherwise very sanctity of the Commission and the confidence of the people on the Commission will be shattered.

The Court thus held competent authority of the State of Jharkhand is directed to take appropriate action upon the Commission by fixing accountability and by taking appropriate legal action so that such illegality may not occur and sanctity of Commission and confidence of people upon the Commission may prevail.”[Rahul Kumar v. State of Jharkhand, W.P. (S) No. 494 of 2020, decided on 11-02-2021]

Arunima Bose, Editorial Assistant has reported this brief.


For the Petitioners:  Mr. Ajit Kumar (In WPS-1501, 1533, 1583 & 1827 of 2020)

Mr. Vikash Kumar

Mr. R.S. Mazumdar (In WPS-1613/2020)

Mr. Manoj Tandon (In WPS-1408/2020)

Mr. Shubhashis Rasik Soren (In WPS-494/20 & 1468/20)

Mr. Vinit Boris Ekka

Mr. Rahul Kumar (In WPS-1449/20 & 1451/20)

Ms. Apoorva Singh

Mr. Amritansh Vats (In WPS-1486, 1487, 1718 & 1984 of 2020)

Mr. Sanjay Kumar Tiwari (In WPS-1428/2020)

For the State:   Mr. Rajiv Ranjan, Mr. Mukesh Kumar Sinha and Mr. Mohan Kumar Dubey,

For the JPSC:   Mr. Sanjay Piprawall

For  Pvt.  Resp.  :   Mr. Sumeet Gadodia (In WPS-494, 1449, 1451, 1487, 1533, 1583, & 1827 of 2020)

Mrs. Shilpi Shandil

Mr. Ritesh Kumar GuptaMr. Indrajit Sinha (In WPS-1533/20 & 1718/20)

Mr. Bibhash Sinha

Mr. Hemant Kr. Shikarwar (In WPS-1449/20 & 1827/20)

Mr. Vijay Kumar Roy (In WPS-1533/2020)

Mr. Sushil Kumar Sharma (In WPS-1449/20 & 1984/20)

Mr. Anil Kumar Sinha (In WPS-1827/20)

Mr. Mukesh Kumar Mehta (In WPS-1533/2020)

Mr. Anuj Kumar Trivedi

Mr. Jorong Jedan Sanga(In WPS-1533/2020)

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Rohinton Fali Nariman* and B.R. Gavai, JJ., addressed the issue of overstepping of review jurisdiction by the High Courts in policy matters. The Bench expressed,

“Judicial review in these matters is equivalent to judicial restraint in these matters…the writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority.”


A Tender Call Notice (TCN) was issued by SCB Medical College and Hospital, Cuttack, inviting sealed tenders in a two-bid system (technical and financial) from eligible registered diet preparation and catering firms/suppliers etc. having a valid labour licence and a food licence with a minimum of three years of relevant experience in the field of preparation and distribution of therapeutic and non-therapeutic diet.

Pursuant to the aforesaid TCN, four bids were received by the Tender Committee. Vide the Technical Committee meeting dated 17-02-2020, Respondent 1 and Respondent were held to be disqualified inter alia for the reason that they had not submitted a valid labour licence, i.e., a contract labour licence from the competent authority, as per the TCN requirement and the Appellant and Respondent 5 were shortlisted for opening of financial bids. Consequently, the Tender Committee opened the financial bids, and found the Appellant to be the lowest bidder, quoting an average cost of Rs.82/- per patient per day. Meanwhile, Respondent 1 filed a writ petition before the High Court, praying that the Tender Committee proceedings be set aside and that Respondent 1 be awarded the tender.

Findings of the High Court

The High Court opined that the eligibility criteria were candid and clear requiring valid license of Labour Department. The said stipulation never mandated the license to be issued under the Contract Labour (Regulation and Abolition) Act, 1970. In the wake of the purpose, which was to supply diet, therapeutic and non- therapeutic to the patients to the hospital, there was no need for labour license under the Contract Labour Act. Hence, the bid of the Petitioner was found to be rejected illegally and contrary to the conditions of the TCN.

Whether a registration certificate under Shops and Commercial Establishments Act, 1956  can be the equivalent to labour licence issued under the Contract Labour Act, 1970?

The respondent argued that the TCN did not require that establishments/firms etc. that applied have 20 or more workmen, hence, it was obvious that it was not this Contract Labour Act that was the subject matter for eligibility but it was the Orissa Act, the registration certificate under which was produced to the satisfaction of the High Court by Respondent 1.

The Court observed that the requirement of Contract Labour Act that its applicability be extended only to establishments in which there are 20 or more workmen can be done away with by the appropriate government under the proviso, making it clear that this was not an inflexible requirement. In any case, the acceptance of such argument would amount to second-guessing the authority’s interpretation of its own TCN which could not be so second-guessed unless it was arbitrary, perverse or mala fide. The Bench stated that,

The registration of an establishment under the Orissa Act was to categorise the establishment as a shop, commercial establishment, hotel, etc. and not for the purpose of issuing a labour licence which, in the context of the present TCN, could only be a labour licence under the Contract Labour Act.

Judicial Review or Judicial Restraint?

The Court had repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority. Referring to the judgment in Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, wherein, the Court had held that, the authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted; the Court stated that the constitutional courts must defer to this understanding and appreciation of the tender documents.

In any case, a registration certificate under Section 4 of the Orissa Act could not possibly be the equivalent of a valid labour licence issued by the labour department. High Court, in second-guessing the authority’s requirement of a licence under the contract Labour Act, has clearly overstepped the bounds of judicial review in such matters.


Hence, the Bench concluded that except for an incantation of the expression mala fide, no mala fide had in fact been made out on the facts of this case. The High Court’s judgment was set aside and the Appellant was directed to be put back to complete performance under the agreement entered into between the Appellant and the authority.

[M/S Utkal Suppliers v. M/S Maa Kanak Durga Enterprices,  2021 SCC OnLine SC 301, decided on 09-04-2021]

Kamini Sharma, Editorial Assistant has put this report together

*Judgment by: Justice Rohinton Fali Nariman

Know Thy Judge| Justice Rohinton F. Nariman

Appearance before the Court by:

For the Appellant: Sr. Adv. Siddhartha Dave

For the Respondent 1: Adv. Aditya Kumar Chaudhary

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., addressed an issue in light of the principles of judicial review explained that the Government must have freedom of contract.

 “…fair play in the joints is a necessary concomitant for an administrative body, functioning in an administrative sphere or quasi-administrative sphere.”

Factual Matrix

Petitioner was awarded a contract by the respondent – Navi Mumbai Municipal Corporation for a period of 5 years of the work of mechanized housekeeping and multi-purpose services in its health centres, which came to be terminated in 2017 due to non-satisfactory performance.

Issue in the Writ Petitions 

  • Fresh Tender issued for the same work but with a pre-qualification criterion that an eligibility condition providing that “the contractors whose work contract is terminated due to unsatisfactory services or are blacklisted would not be eligible to participate in the tender”

Arbitration Proceedings

On being aggrieved with the termination of contract, arbitration proceedings by the petitioner were initiated against the Corporation.

Petitioner’s Case

Petitioner’s case that if the petitioner is held to be ineligible by application of the said note in Clause 4(g) of the pre-qualification criteria, it would lead to a consequence that the petitioner cannot participate in such contracts of the Corporation although the petitioner is not blacklisted or debarred and yet is being prohibited to participate in such re-tender.

Discussion and Conclusion

Question that falls for determination in the present matter are:

(I) Whether the Municipal Corporation is entitled in law to impose a pre-qualification criterion as contained in Condition 4(g) (supra) to the effect that ‘the contractors whose work contract is terminated due to unsatisfactory services are not eligible to participate in the tender’?

(II) Whether imposing such impugned condition would amount to blacklisting of the petitioner?

In the present matter, while considering the facts and circumstances of the case, Bench discusses some vital points with respect to:

  • legal principles on the authority of the State and its instrumentalities to enter into contracts and
  • Principles of Judicial Review.

Power of Judicial Review is exercised to rein in unbridled executive functioning.

It is not the function of the Court to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administration. The duty of the court is to confine itself to the question of legality of the tender process on the touchstone of Article 14 of the Constitution.

It is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. The only concern should be with the manner in which such decision have been taken.

On what grounds is the Judicial Review classified:

Firstly, Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it;

Secondly Irrationality, namely, Wednusbury unreasonableness, that is when a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.;

Thirdly Procedural impropriety. The Court does not sit as an appellate authority over the tendering authority, but merely reviews the manner in which the decision was made.

Bench in view of the above-stated expressed that the terms of the invitation to tender cannot be open to judicial scrutiny as an invitation to tender is in the realm of contract.

Further, it was added that the Government must have freedom of contract. Principles laid above are enunciated in the Supreme Court decision of Tata Cellular v. Union of India, (1994) 6 SCC 651.

With respect to taking a review of the authorities and more particularly on the prescription and adherence of essential conditions has laid down principles of judicial review in the Supreme Court decision of BSN Joshi &. Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548.

High Court elaborating more, added that the freedom to arrive at legitimate terms and conditions in inviting public offers cannot in any manner be taken away.

Cherished principles of free play in the joints and the liberty to choose a contractor, on terms and conditions fixed by the tendering authority in public interest, cannot be taken away.

Court would not have any expertise to sit in appeal over the tender conditions, the role of the Court is triggered only qua the decision-making process.

Moving forward, Bench examined whether Corporation acted either malafide or arbitrarily with material illegality in having a condition to restrict participation of a bidder whose contract is terminated due to unsatisfactory services?

 It was noted that the said condition was applicable to all the bidders and not just to the petitioner. The corporation made it clear with its condition that it did not desire a party whose work was unsatisfactory in the past to get onboard again, hence in Court’s opinion, the said condition became imperative, considering the nature of the contract.

Hence, Corporation’s condition was in no manner arbitrary and illegal. Therefore, Corporation was entitled in law to impose pre-qualification criteria as it did.

Second Question

 Imposing of impugned condition resulted in blacklisting the petitioner from participating in the tender in question?

Bench in light of the above question noted that a contractor cannot be blacklisted for having breached the terms and conditions of the contract unless a fair hearing was accorded to the party being blacklisted in due adherence to the principles of natural justice.

In Court’s Opinion, the present case is not the one wherein the petitioner can be said to be blacklisted by the Corporation.

In fact, the petitioner’s case is of an implied blacklisting by the Corporation by prescribing of a pre-bid criteria that a contractor whose work contract is terminated due to unsatisfactory performance is not eligible to participate in the tender.

Hence, present case is not of blacklisting.

It is also fallacious for the petitioner to label such condition as a condition of an implied blacklisting of the petitioner in future tenders to be issued by the Corporation. This is only a presumption of the petitioner. 

Concluding with the decision, High Court held that the petitions failed and were accordingly rejected. [BVG India Ltd. v. State of Maharashtra, 2021 SCC OnLine Bom 412, decided on 19-03-2021]

Advocates before the Court:

Mr. V. A. Thorat, Senior Advocate with Mr. Ashutosh M. Kulkarni and Mr. Sarthak S. Diwan for the Petitioner.

Mr. Sandeep Marne, for the Respondents.

Mr. P. P. Kakade, Government Pleader with Ms .R.A. Salukhe, AGP for State.

Case BriefsHigh Courts

Orissa High Court: B.P. Routray J. dismissed the petition on the ground that cancellation of the tender cannot be said to have attracted the doctrine of lis pendens.

The facts of the case are such that the petitioners are registered small scale industrial units who participated in the tender process for Fabrication, Supply, Transportation and Erection of hydro-mechanical gate works under Opposite Party 5, i.e. the Executive Engineer, Mechanical Division, Bhubaneswar. The petitioners became the successful bidders but due to delay in finalizing the tender process the petitioner filed a petition which was disposed off directing opposite party to consider the same which was eventually rejected as they were found defective and the discrepancies regarding “Structure and Organization”, “Plant and Equipment” and “Performance record” are noticed during re-scrutinization. Aggrieved by the same, instant petition was jointly filed challenging the cancellation of Tender Call Notice invited through e-Tender by the Executive Engineer, Mechanical Division, Bhubaneswar.

Counsel for the petitioners submitted that when the writ petitions filed by the Petitioners in praying for finalizing the tender are pending adjudication, the order of cancellation passed by the Executive Engineer under Annexure-1 is erroneous and hit by the principles of lis pendens. It was also submitted that when the Petitioners have been selected as successful bidders, the unilateral action of the Opposite Parties in cancelling the tender without giving any opportunity of hearing to the Petitioners is illegal, arbitrary and not sustainable in the eye of law.

Counsel for the respondents submitted that that mere acceptance of the bid of the Petitioners by the Executive Engineer without approval of the higher authorities, i.e., the Superintending Engineer and Chief Engineer does not create any right in their favour for execution of the work and the authority reserves the right to reject any order or all of the bids even without assigning any reason. It was further submitted that upon re-verification of the bids at the level of Superintending Engineer and Chief Engineer since the error was noticed in evaluation of bids, the same needs to be rectified by taking a conscious decision in cancelling the tender process and thus no illegality is involved in the same.

The Court relied on judgment Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, and observed:

“22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold.”

The Court observed that the facts are clear that the tender process was not finalized and no agreement of execution of work has been issued. The bid documents offered by the Petitioners has been accepted at the level of Executive Engineer which is subject to further approval by the Superintending Engineer and Chief Engineer and while undergoing such stage of approval at the higher level due to revelation of defects and discrepancies, the tender was cancelled. Therefore, there was no creation of right accrued in favour of the Petitioners to execute the work for which the Tender Call Notice was issued. Since no such right can be construed which can be said to have accrued in favour of the Petitioners, the cancellation of the tender process in entirety in no way affects the Petitioners and thus, nothing can be said to have changed by such cancellation.

The Court thus held that “no merit is found to warrant interference in the action of the Opposite Parties in cancelling of the e-Tender under Annexure-1 and as such, we do not incline to interfere with the same.”

In view of the above, petition was dismissed.[Ashirbad Industries v. State of Odisha, 2021 SCC OnLine Ori 132, decided on 18-02-2021]

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Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., dismissed the petition being non-maintainable.

The petitioner by way of this instant petition has challenged the election of Respondent 5 as Member, Block Development Committee, Misserwala, District Sirmour in the elections to Panchayati Raj Institutions of the State concluded in January 2021. The writ petition has been filed seeking that the respondent election commission may be directed to start the fresh election and declare the election under challenge as null and void.

The issue before the High Court is the maintainability of writ petitions under Article 226 of the Constitution of India vis-à-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters.

Section 162 of the H.P. Panchayati Raj Act provides that no election under the Act shall be called in question except by an election petition presented in accordance with the provisions of the chapter and Section 175 of the Act enumerates the grounds for declaring election to be void.

The Court stated

 “We are also conscious of the limitations set forth on such exercise of judicial review in view of bar of jurisdiction imposed by Article 243-O of the Constitution of India, which is quoted hereinbelow:-

“243-O. Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.”

 The Court further relied on judgment Laxmibai v. Collector, Nanded, (2020) 12 SCC 186 wherein it was observed the maintainability of writ petitions under Article 226 of the Constitution of India vis-a-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters, it was held that all election disputes must be determined only by way of an election petition. This by itself may not per-se bar judicial review, which is the basic structure of the Constitution but ordinarily, such jurisdiction would not be exercised. The relevant paragraphs of the judgment are extracted hereinafter:

 “15. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Mrs.

  1. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.
  2. ….a writ petition should not be entertained when the main question which fell for decision before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act.”
  3. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari material with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference.”

 The Court thus held that “the instant writ petition is not maintainable at all and the same is accordingly dismissed with liberty reserved to the petitioner to avail appropriate alternate remedy in accordance with law.” [Kauser v. State Election Commission,  2021 SCC OnLine HP 227, decided on 08-02-2021]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Punjab and Haryana High Court: In an interesting case Anil Kshetarpal, J., addressed the question of equivalence of qualifications for the purpose of recruitment.

On 28-06-2015, the Haryana Staff Selection Commission issued a recruitment notice inviting the applications for filling up 193 posts of Post Graduate Teachers (Home Science) (Group-B Service) and 5 posts in District Mewat. The essential qualifications as per recruitment notice was as under:-

E.Q. M.Sc. Home Science with at least 50% marks and B.Ed. from recognized University

About 7 writ petitions had been filed claiming that the qualifications of petitioners were equivalent to M.Sc. Home Science and therefore, they were entitled to be considered for appointment. None of the petitioners possessed the degree of M.Sc. Home Science but degrees in M.Sc. Food and Nutrition, M.Sc. (Extension Education), M.Sc. (Dietetics and Food Service Management), M.Sc. in Food Science and Technology and M.Sc. Food Technology.

The grievances of the petitioners were that the Expert Committee constituted by State had given a report in favour of some petitioners also that in the year 2012, the posts with the same qualification were advertised and M.Sc. Food and Nutrition was considered as an equivalent qualification and certain candidates were selected and appointed. It was further contended that one Pushpa Rani with similar qualification, had been appointed in the Mewat Cadre.

Counsel for State, Samarth Sagar while relying on decision of Supreme Court in Anand Yadav v. State of Uttar Pradesh, 2020 SCC Online SC 823, contended that,

In the exercise of its power of judicial review, the High Court was not expected to go into the question of equivalence of qualifications. He submitted that the question of equivalence of qualification for recruitment was a matter which should be left to the employer, recruitment agency and the experts.

 Noticing that a Committee of experts was nominated by the State and a report dated 15-07-2019 had been produced. The Expert Committee found that the qualifications of M.Sc. in Food Science and Technology and M.Sc. Food Technology were not equivalent qualifications. However, it had been opined that a degree in M.Sc. Home Science (Food and Nutrition), M.Sc. Home Science (Food, Nutrition and Dietetics), M.Sc. Home Science (Human Development and Family Relations) etc. were equivalent to a degree in M.Sc. Home Science as per the UGC Norms.

The Court attempted to get an opinion from UGC in this aspect but failed, as the commission had taken a policy decision not to give such opinions. Reliance was placed on Zahoor Ahmed Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404, by the Court wherein the Supreme Court had held,

“The prescription of qualifications for a post is a matter of recruitment policy. The state as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the state, as the recruiting authority, to determine.”

In view of the above, the Bench held that entire dispute was required to be remitted to the employer-the State and the Recruiting Agency, to take a concluding decision on this aspect. Hence, State was directed to treat these writ petitions as representations and decide the matter by passing speaking and reasoned orders after granting an opportunity of hearing to the petitioners. [Dimpal Bhardwarja v. Haryana Staff Selection Commission, 2021 SCC OnLine P&H 264, decided on 02-02-2021]

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Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., while addressing an issue wherein a doctor sought for a study leave for pursuing MD/MS Course, stressed upon the ambit of the power of judicial review.

Petitioner sought a direction against respondents 1 and 2 to issue the relieving order and grant study leave to him in order to enable him to pursue MD/MS Course in Pediatrics from Post Graduate Institute of Medical Education and Research, Chandigarh (PGI) as petitioner satisfied the criteria laid down for grant of study leave in the Office Memorandum dated 02-11-2012.

The request for study leave was denied in view of the prevailing situation i.e., COVID-19.

Further, it was added that the Lt. Governor took a considered view that in these times of Pandemic COVID-19, more medical staff was required. Since some of the doctors had already proceeded on study leave, it would not be prudent to spare more Doctors. Hence the LG desired that the department may kindly be advised to not sanction any more study leave application.

 Analysis, Law and Decision

The decision in regard to study leave came under the decision-making power of the Lt. Governor, Govt. of NCT of Delhi based on the prevailing COVID-19 situation in the city and in the instant case, the said request of the petitioner was not acceded to.

Judicial Review

Court stated that the Court, in exercise of its power of judicial review, cannot sit as an Appellate Authority over the decision taken by the administration/management.

Further, the Bench expressed that the decision was taken giving due regard to the exigencies, which may arise in the course of administration.

“…petitioner being a meritorious candidate, has a legitimate expectation to acquire a higher qualification and advance in his career but at the same time, as an employee working in the Govt. of NCT of Delhi, is bound by the Rules framed by the Government i.e. Rule 50 of the Leave Rules clearly stipulates that the grant of study leave is not a matter of right, as the same shall be granted to the government servant with due regard to the exigencies of public service.”

 Hence, it was held that in view of the Supreme Court decision in State of Punjab v. Dr Sanjay Kumar Bansal, (2009) 15 SCC 168,  when the decision has been taken at the highest level in the Government, this Court cannot sit as an Appellate Authority over such a decision. [Dr Rohit Kumar v. Lt. Governor of Delhi,  2021 SCC OnLine Del 317, decided on 02-02-2021]

Advocates for the parties:

Petitioner: Geeta Luthra, Senior Advocate with Nitin Saluja and Varun Dewan, Advocates

Respondents: Avinash Ahlawat, SC for GNCTD with Tania Ahlawat, Nitesh Kumar Singh and Palak Rohmetra, Advocates

Op EdsOP. ED.

I. Introduction

The current question that we are about to delve into is undoubtedly of much constitutional significance as it has the potential to render the anti-defection law dead letter. But apart from it, the workability of the law, as it exists today, is also of much significance for the political parties, who during their governance ordinarily enjoy the privilege of having the Speaker from their group. In this way, the ruling party hangs the Constitution at the peril of destruction by controlling and strangulating the independence of the Speaker’s position in the House or an Assembly, as the case may be.

One may easily reckon that the author is talking about a situation when disqualification petition(s) is filed against the member(s) of the ruling party, in such instances, it is not unusual anymore to witness that the Speaker of the House or an Assembly turns a deaf ear and comfortably pretends to forget about the obligation he is required to discharge under Para 6 of the anti-defection law (power of the Speaker to adjudicate disputes). One may not require much brainstorming for speculating reasons for this omission. The Speaker might succumb to the pressure from the distinguished party leaders or act likewise in an attempt to save his ruling party on the floor of the House or the Assembly, or perhaps, to maintain cordial relationship with the accused member(s). This scenario is expected to be witnessed frequently when the House or Assembly is nearing dissolution.

Although, Para 7 of the Tenth Schedule (bar of jurisdiction of courts) was struck down by the Supreme Court long ago, it can be said without hesitation that the Speaker still enjoys finality and unlimited powers under the Tenth Schedule. One may counter the aforesaid statement by arguing that it cannot be the case because decision of the Speaker under the Schedule can always be assailed for judicial scrutiny under Article 226 of the Constitution. This bone of contention, though deserves some acceptance, is devoid of pragmatism and can merely be viewed hypothetically. What needs to be remembered hitherto is that the law allows “judicial review” of the matter and not simpliciter adjudication upon knocking the doors of the Court without any order of the Speaker as to disqualification. In fact, such an argument loses its flair with an added menace of no timeline set out for the Speaker to adjudicate the petitions before him, which effectively leaves the workability of the anti-defection law in accordance with the whims and fancies of the Speaker.

This directly takes us to a question of law that can be firmly described as whether the High Court can itself adjudicate and finally dispose of the disqualification petition filed before the Speaker, in absence of any decision taken by the Speaker on those petitions. To put it differently whether the High Court while exercising writ jurisdiction is competent enough to disqualify the accused members by usurping and assuming the powers of the Speaker.

II. Legal conundrum faced by the judiciary

Just like every coin has two sides, the constitutional minds too share difference of opinion. The first batch of judgments preach that on careful reading of the judicial precedents available on defection law, it has been made clear by the Supreme Court in what can be called as the most authoritative precedent that, although the High Court does not sit in appeal against the order of the Speaker but inheres a limited judicial review over the decision of the Speaker in such cases.[1] Here, the matter involves no such decision made by the Speaker and hence, there arises no question for judicial “review”. To sail further on this view, it is imperative to quote para 110 of the case Kihoto Hollohan v. Zachillhu, which runs as follows:

110. In view of the limited scope of judicial review that is available on account of the finality clause in Para 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.[2]

It can be easily inferred that not only the final adjudication but even quia timet actions are not permitted to be exercised by the courts. The term quia timet literally means “because he fears or apprehends”.[3] It is synonymous to pre-emptive or precautionary action[4] and, it would not be the correct approach because there is no decision made by the designated authority within the Schedule, not even interlocutory. The latter half of the quoted passage simply provides for an exception to the said pre-emptive relief only in case of the Speaker disqualifying members as an interim measure and not the other way around. If the reverse is allowed to prevail, whereby, the High Court starts granting interim reliefs without there being an order passed by the Speaker, then it would get hit by the well-settled principle of our Constitution, namely, separation of powers and independence of each institution of the Government. This would tantamount to bypassing of powers granted by the Constitution itself and would perhaps add to the accusation of judicial overreach, which the Indian courts are facing today. The seeds of this particular thought matured in Haryana Vidhan Sabha v. Kuldeep Bishnoi[5] (hereinafter referred to as “Haryana Assembly case”), the elaborate analysis of which will be done later in this article.

In addition to the above argument, this school of thought says that there could be essential factual questions required to be determined by way of oral evidences, which, the High Courts are not competent to decide while exercising its powers under Article 226 of the Constitution[6]. Although, this bone of contention seems thought-provoking but is merely procedural in nature, and thus warrants no detailed discussion.

Therefore, according to this view the courts can neither finally decide the petitions by assuming itself as the competent authority under the Schedule nor can pass an interim order in the nature of disqualifying the accused member(s) till the time their petitions are considered by the Speaker.

 On the contrary, the other group opines that the Speaker is duty-bound to decide the disqualification petitions within a reasonable time despite the fact that there are no set timelines provided in the Tenth Schedule or the Rules thereof. The expression “reasonable time” must be construed as any time much before the completion of lifespan of the House or the Assembly. This category advocates that to protect the ultimate democratic and constitutional ethos, it is necessary for the judiciary to treat the jurisdiction of the Speaker as mere “alternate forum” in such cases. The only judicial opinion to substantiate this view is the prima facie observation made by the High Court of Manipur to the preliminary objection as to the jurisdiction of High Court[7] (hereinafter referred to as “the High Court order”), although very recently it has been partly reversed by the Supreme Court in Keisham Meghachandra Singh v.  Manipur Legislative Assembly,[8] (hereinafter referred to as “the Supreme Court judgment”) and rightly so. However, this pronouncement of the Supreme Court is also not free from contentious issues for reasons that it took a sharp turn by relying upon a Constitutional Bench judgment titled Rajendra Singh Rana v. Swami Prasad Maurya,[9] (hereinafter referred as “the Constitutional Bench judgment”) which is dated anterior to Haryana Assembly case [10]referred hereinabove.

At this stage, the question that comes to the fore is what the law today is and which line of thought should be considered as consistent with the prevailing legal scheme and circumstances. It is noteworthy that the reason for persistently advocating the respective ideas is grounded upon what the proponents of literal rule and golden rule believe while construing provisions. Pertinently, the said rules of interpretation have their boundaries beyond which if a law person travels, would possibly face repercussions. However, what remains to be seen is which among the abovementioned views qualifies the test of legal correctness without infracting the well-defined bounds. To understand the same with precision, it is indispensable to trace the judicial development till date.

III. The Conspectus of Judicial Utterances

In order to understand the aforesaid, it is important to backtrack and discern what transpired in Haryana Assembly case[11] and thereafter in several such cases including Manipur Assembly case[12] (both the High Court order and the Supreme Court judgment). Now, to begin with the chain of events, Haryana Assembly case [13] encountered these unique set of facts for the first time. The Court was called upon to deal with the inordinate delay by the Speaker in considering the disqualification petitions against five (5) members of the assembly (MLAs) who were neither the ones upon whom the survival of the Government depended nor the State Assembly elections were set to take place soon. At the same time, it was also true that the Court inferred mala fide conduct of the Speaker, who was keeping interests of his faction above his constitutional duty. Consequently, the Court examined all the authorities available on the subject and came to the conclusion that Kihoto Hollohan case[14] carves out a solitary exception in case of suspension made by the Speaker, and grounds of mala fide, perversity, want of rules of natural justice are only available after final decision made by the Speaker. Therefore, howsoever peculiar the facts may be, if the Speaker has not passed any order disposing of the petitions, no occasion for the Court arises to assume powers of judicial review. Here, it would not be out of context to point out that the Bench of two Judges indeed took cognizance of the irrelevance of those five MLAs in the formation of the Government and remaining period for next State elections, but restricted their conscience to carve out another exception qua cases where the circumstances emerge per contra.

The Court nevertheless, devised an unprecedented measure by directing the Speaker to dispose of the pending petitions within a specific time-frame of four months. This was clearly in the nature of issuing mandamus. This method is certainly not devoid of intrinsic problems, which are highlighted later on. Thereafter, the Supreme Court encountered this question, amongst other issues, in Orissa Legislative Assembly v. Utkal Keshari Parida,[15] where again it set out timeline for the Speaker to decide the petitions. Till then, this problem had found deep roots in the democratic soil of India. Considering another matter, a two-Judge Bench of the Supreme Court referred this issue for consideration by a Constitutional Bench to finally decide whether such timelines can be framed by the High Court under prevailing scheme of things, of course along with the larger question of laying down the yardstick for High Courts over the Speaker under the defection law.[16] The desire to refer the matter arose when the Speaker disputed the very jurisdiction of the Supreme Court to entertain such issues.

Amidst its pendency before the Supreme Court, few High Courts dealt with the same problem. A Division Bench  of the High Court of Bombay in Indian National Congress v. State of Goa,[17] held that “courts cannot interfere in a proceeding under Tenth Schedule before the Speaker gives a decision as remedy under Para 6 of the Tenth Schedule is not an alternate remedy but the sole remedy available”. Another Division Bench of the same High Court had observed that power to formulate timeline for the Speaker cannot be gleaned from the Schedule or the Rules framed by the Speaker thereunder.[18] Similarly, a Division Bench of the High Court of Madras in R. Sakkarapani Whip v. T.N. State Legislative Assembly[19] dismissed the writ petition on preliminary ground of judicial restraint to take up the matter while these impugned questions were pending before the Supreme Court.  It is pertinent to mention that all these judgments followed the same pattern of not adjudicating the lis between the parties as determination of the law by the Supreme Court was much awaited, nor was any sort of relief granted in favour of the petitioners (not even directing the Speaker to decide the petitions in a particular time period).

Out of the lot, the case of Manipur Legislative Assembly is a little different. A writ petition[20] was filed before the High Court seeking direction for disposal of disqualification proceedings within reasonable period. However, initially noting that the impugned issue was pending adjudication, the High Court kept the matter at abeyance till any substantial orders were passed by the Supreme Court. Subsequently, another writ was filed asking for final adjudication of disqualification petition without any order of disposal from the Speaker. Notably, the petitioner had extensively relied upon the Constitutional Bench judgment[21]. The High Court, in an unexpected turn of events, though refrained from granting any relief to the petitioners but recorded strong prima facie views by noting that the power of the Speaker is that of a tribunal and the remedy provided under Para 6 of the Schedule is nothing but discretionary, which can be availed before approaching the High Courts.[22] It went on to observe that where the members are found to have incurred prima facie disqualification under the Schedule, the court cannot be expected to sit as mere spectator and ought to come to the rescue of the intention of the lawmakers, and perhaps, protect the ultimate goal of the law. It is no doubt true that the Bench, albeit, did not decide the issue, but likewise, ought to have refrained itself from making such sketchy remarks.

This matter in appeal came up for consideration before a Bench of three Judges of the Supreme Court, the verdict of which has been pronounced lately, setting aside the High Court’s view and partly allowing the petitions so far as the question of directing the Speaker to consider the disqualification petitions within a time-limit is concerned. The Court differed on the point of deciding the petition itself but held that the maximum that can be granted is direction setting out reasonable timeline. It might surprise many that the Court cancelled the reference made to the Constitutional Bench by noting that the impugned issue stood settled in Swami Prasad Maurya case[23] (Constitutional Bench judgment). It pertinently relied upon paras 40 and 41 of the same, the relevant extracts of which are reproduced as follows:

40. Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by Para 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of Para 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf … it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with…

41. … It is indisputable that in the order that was originally subjected to challenge in the writ petition, the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 MLAs. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of the High Court in exercise of its power of judicial review.[24]

With so much significance being attached to the Constitutional Bench judgment, it becomes inevitable to cull out its relevant factual findings to understand the fulcrum of this issue. In this case, initially thirteen (13) members of the ruling party approached the Governor of the State concerned and demanded to call the opposition party to form the Government. Subsequently, disqualification petitions were filed against them. However, it was claimed that they form part of thirty-seven (37) members and together they constitute a legit split in accordance with Para 3 of the Tenth Schedule, and therefore cannot be disqualified. The Speaker while keeping the disqualification petitions (filed prior to the claim of split) under Para 2 of the Tenth Schedule pending, accepted the requirements of Para 3 and held that alleged liability of disqualification cannot be imposed on these members. Thereafter, this action of the Speaker was challenged before the High Court. The Speaker, albeit at first, adjourned the pending petitions till the time proceedings are held before the High Court by a specific order, but after more than a year, the Speaker finally rejected the petitions for reasons best known to him. Considering this development, an application to amend the writ petition was filed, which had a rough stint at the High Court. Nevertheless, the writ was finally decided by a Full Bench of the High Court, whereby, it directed the Speaker to consider the disqualification petitions against those thirteen members. The decision of the High Court was assailed before the Supreme Court, wherein, the Bench of five Judges held that Para 3 (split) and/or Para 4 (merger) are mere defences available to the accused members while the disqualification proceedings are conducted. Any attempt to decide such claims of split or merger independently, goes to the root of the matter and thus, is illegal. The Court went on to disqualify the members on the pretext that they were unable to prove the claim of split before the Court even prima facie and secondly, the assembly was at the tail end of its life, which did not provide much time for remitting the petitions for fresh consideration by the Speaker.

IV. Testing the edifice of the “Supreme Court Judgment” (Manipur Assembly case)

Switching back to the focal point, it is important to highlight that for the purpose of this article, only those questions pertaining to the merit of the Supreme Court judgment need deliberation and not those of practice and procedure. The foregoing discussion shall endeavour to put forth the author’s personal opinion as to why reliance placed upon the Constitutional Bench judgment[25] is misplaced. At the outset, it cannot be disputed that the High Court order[26] was a faulty authority inasmuch as it ought to have restrained itself to pass such sketchy remarks when the issue was pending before the Supreme Court. Further, those observations, in a way, conflicted with the relevant portion of the law laid down in Kihoto Hollohan case[27] which has been affirmed by another Constitutional Bench in Raja Ram Pal v.  Lok Sabha,[28] Above all, if at all it could stand on its footing, it would have led to the practice of “forum jumping”, meaning thereby, that the faction feeling aggrieved even by reasonable deference of the Speaker would have opted the alternate remedy before the High Court which would have defeated the real intent of Para 6 of the Schedule.

When the Supreme Court faced this challenge in the appeal, it was expected that the Court would club the matter with the referred matter and try to put the question to rest as expeditiously as possible. However, it requires reiteration that the Court took a step back and pointed out that the issue pending had been already settled in Swami Prasad Maurya case[29] (Constitutional Bench judgment). It is author’s respectful opinion that the question is still alive and hence, open for consideration by a larger Bench. The aforesaid view of the author can be supplemented by the following three grounds:

  1. As has been admitted in the Supreme Court judgment[30], the judgment of the Constitution Bench consisted of totally different facts. Also, the Court was fortunate enough to have a final decision by the Speaker pertaining to acceptance of the claim of split under Para 3 of the Schedule. One may counter this by arguing that it was not the decision pertaining to disqualification petition under Para 2 and those petitions were kept alive by the Speaker by a specific order. However, it deserves a mention that subsequently the petitions were dismissed by the Speaker and consequently the High Court finally decided the pending writ petition.[31] In a way, the High Court and even Supreme Court at least had the opportunity to peruse the final order and thereafter, consider the second writ and appeal thereof. Even otherwise, if the admissibility of the successive order of dismissal of disqualification petition is doubted on the premise that matter was under consideration at that relevant time, the Supreme Court in that very judgment had clarified previously that Paras 3 and 4 cannot act as independent provisions and operate as mere defence available while hearing disqualification proceedings. A logical inference that can be drawn from the abovementioned proposition of law is if the Speaker had accepted the claim of split under Para 3, this ought to have resulted into automatic rejection of disqualification petitions against those members, regardless of how the Speaker purportedly played with the provisions of law which could be attributed to his allegiance towards any political party or whose memberships were at stake. Thus, it would not be wrong to suggest that both, petition under Para 2 and application under Para 3 or Para 4, go hand in hand, and the Court in its order merely interpreted the law as it was and thereby, rejected the colourable order of the Speaker. Further, the judgment in the later part goes on to say that if the members who abandoned their party fail to prove that there was a legit split, consequently, not only them but other members who supported their cause of split would automatically render themselves liable for proceedings under Para 2 of the Schedule.[32] The reverse of it shall naturally sustain in law, where supposedly their claim of split was duly accepted, and then it would have amounted to straight rejection of petitions under Para 2. Therefore, the courts had the final order passed by the Speaker, howsoever illegal it was held to be, but in presence of it nothing remained for the Speaker to adjudicate and this paved the way for the Bench to conclusively decide the issues arising therein.
  2. The second reason is that the matter referred to the Constitutional Bench of five Judges involved a specific question that “whether the High Courts, in absence of a final decision by the Speaker, have power under Article 226 of the Constitution to direct the Speaker to dispose of the disqualification petitions within a restricted period of time”.[33] Neither was this proposition under consideration for the Constitutional Bench in Swami Prasad Maurya[34] nor any argument to supplement or supplant the said issue was ever raised before the Court. The Court and the parties were, from the very inception, on the issue that whether Paras 3 and 4 can be said to operate independently of Para 2 of the Schedule, which the Speaker presumed in affirmative and thereupon passed an order under Para 3 i.e. recognising the split.[35] Therefore, in these circumstances, any remarks, incidental or co-incidental, upon the issue at hand can merely be said as passing observations by the Court and thus, cannot be treated conclusive.[36]
  3. Lastly, non-determination of the issue on merits may possibly lead to an ambiguity in future. The Court in the Constitutional Bench judgment[37] though acknowledged the right course but went on to decide the petitions without remitting to the Speaker to save them from being rendered as infructuous due to approaching dissolution of the Assembly, and thereby carved out an exception to the general law. The Supreme Court judgment[38] in the penultimate paragraph of the Manipur Assembly case recognised that the assembly was not nearing its end and therefore, no relief of such nature can be granted as was granted in Swami Prasad Maurya case[39]. In view of the aforesaid, it would not be surprising if High Courts begin to assume charge and determine the petitions where the assemblies are about to dissolve. As a result, it would stand in conflict with the decision in Kihoto Hollohan case[40], which was further affirmed in several other judgments and is the leading authority of the subject.

In light of these contentions, the author humbly opines that the issue is still open consideration by the five Judges, as referred by the two-Judge Bench in S.A. Sampath Kumar order[41] (supra) since the Supreme Court judgment[42] concerning the Manipur Legislative Assembly did not enjoy privilege of having a final order by the Speaker and the specific issue pending before the five Judges was not deliberated upon in the Constitutional Bench judgment[43], and not to forget the consequential perplexity that may arise in the future.

V. The law as it exists today – Judicial adventurism or constitutional protectionism

Be that as it may, we must see the things as they are and actuality is that the law has become settled (subject to abovesaid reservations) on the impugned proposition of law by the Supreme Court judgment[44] in the Manipur Legislative Assembly. Under the existing law and circumstances, the practice of directing the Speaker to decide the disqualification petition within a specific time-frame seems to be the need of the hour in absence of any provision to safeguard the constitutional mandate. It seems impractical for the courts to sit over and witness the defeat at the hands of such subterfuge. However, this too has not remained free from criticism as some argue that the domain of judicial overreach is spreading widely and this is the new kid on the block as there is no provision or rule that inhere this power to the High Court without examining the final order by the Speaker at the first instance.

However, one might read sufficient literature on judicial activism and judicial adventurism and become certain that judicial activism is a byproduct of mischief rule of interpretation. It becomes adventurism when it is exercised excessively.[45] In the present scenario, although the answers to all our scepticism can be found in an effective amendment to Para 6 of the Schedule[46] but as of now the current measure seems workable as it does not touch the merits of the petitions but is a directive given after taking into account all the objective considerations of deliberate inaction, requirement of expedient decision and consequences that could ensue if a final decision is not passed within a reasonable time. The judiciary believes that this was the minimal and at the same time maximal that could have been done to subserve the larger objective of the anti-defection law. However, any practice touching merits of the disqualification petitions would possibly accuse the judiciary for judicial adventurism.

Having said all this, there are still a few elementary problems haunting this method of directing the Speaker to act in a time-bound manner. The foremost arises when the Speaker does not conform to the timeline set out by the High Court.[47] Whether any plenary steps could be taken by the High Court in such cases to ensure compliance? More importantly, what role would the parliamentary privileges play in safeguarding the Speaker’s non-compliance? These questions certainly need to be addressed without delay to make the method of setting out timeline for the Speaker an effective remedy.

*Practising Advocate at High Court of Delhi, District Courts and Tribunals.

[1] Kihoto Hollohan v. Zachillhu, (1992) Supp (2) SCC 651. See also, Mahachandra Prasad Singh  v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747

[2] (1992) Supp (2) SCC 651, 711.

[3] Black’s Law Dictionary, 2nd Edn., (1910) available at (last visited on 18-5-2020).

[4] S.R. Bommai v. Union of India, (1994) 3 SCC 1; see also, Kuldip Singh v. Subhash Chander Jain, (2000) 4 SCC 50.

[5] (2015) 12 SCC 381 .

[6] R. Sakkarapani Whip v. T.N. Legislative Assembly, 2018 SCC OnLine Mad 1247.

(The same stand was taken by the respondents, however, the occasion to consider this question did not arise as the Court held it as the case involving simple evidence and not complex oral evidence.)

[7] Mohd. Fajur Rahim  v.  Manipur Legislative Assembly, 2019 SCC OnLine Mani 127.

[8] 2020 SCC OnLine SC 55.

[9]  (2007) 4 SCC 270.

[10] (2015) 12 SCC 381.

[11] Ibid.

[12] Mohd. Fajur Rahim  v.  Manipur Legislative Assembly, 2019 SCC OnLine Mani 127; see also,  Keisham Meghachandra Singh v.  Manipur Legislative Assembly, 2020 SCC OnLine SC 55.

[13] Supra Note 5.

[14] (1992) Supp (2) SCC 651.

[15] (2013) 11 SCC 794.

[16] S.A. Sampath Kumar v. Kale Yadaiah, 2016 SCC OnLine SC 1875.

[17] 2017 SCC OnLine Bom 8817.

[18] Vijay Namdeorao Wadettiwar v. State of Maharashtra, 2019 SCC OnLine Bom 2100.

[19] 2018 SCC OnLine Mad 1247.

[20]T.N. Haokip v. Speaker, Manipur Legislative Assembly, 2017 SCC OnLine Mani 137.

[21] Supra Note 9.

[22] Supra Note 7.

[23] Supra Note 9.

[24] Supra Note 9, ¶ 300.

 [25] Supra Note 9.

[26] Mohd. Fajur Rahim  v.  Manipur Legislative Assembly, 2019 SCC OnLine Mani 127.

[27] (1992) Supp (2) SCC 651.

[28] Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184.

[29] Supra Note 9.

[30] Supra Note 8.

[31] Supra Note 9, ¶ 284-285.

[32] Id., ¶ 305.

[33] Supra Note 16.

[34] Supra Note 9.

[35] See, Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729.

[36] Punjab Land Development and Reclamation Corpn. Ltd. v. Labour Court, Chandigarh, (1990) 3 SCC 682; see also, Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562.

[37] Supra Note 9.

[38] Supra Note 8.

[39] Supra Note 9.

[40] (1992) Supp (2) SCC 651.

[41] Supra Note 16.

[42] Supra Note 8.

[43] Supra Note 9.

[44] Supra Note 8.

[45]Bimal Kumar Chatterjee, Judicial Activism — Is it a Boon or a Bane, (2014) 3 SCC J-4, ¶ J-6.

[46]K.Vijaya Bhaskar Reddy, Sabotage of Anti-defection Law in Telangana, Economic & Political Weekly, 12-12-2015.

[47]See, supra Note 5. (The Supreme Court termed the act of the High Court as illegal in calling all the records from the Speaker and itself deciding the petitions for disqualification after noticing non-compliance of the timeline set out.)

Case BriefsHigh Courts

Patna High Court: The Division Bench of Shivaji Pandey and Partha Sarthy, JJ., addressed the demand of Bihar Public Service Commission to quash impugned order of the Single Judge directing the Commission to constitute an expert committee for re-evaluation of questions.


 On 15-07-2018, an examination was conducted by the Commission for the post of Assistant Engineers (Civil). After completion of examination, Key Answers of the concerned subjects was published. Later, on receiving objections pertaining to framing of wrong questions, wrong answers in the model answer-sheet or having more than one answers of a question, an expert committee was set up by the Commission to examine the said objections. Altogether, answers of 15 questions were found to be wrong but the questions claimed to be wrong by the respondents were not within those 15 answers. Hence, a petition was filed before the Single Judge against the findings of the Committee, whereby it was held that the committee had made an error and the Commission was directed to re-evaluate the questions.

The Commission submitted that, question setters were experts in their respective fields and objections were referred to another committee of experts, who were also experts in their respective fields. The said committee, after examining the objections submitted its report that answers of 15 questions were wrong leaving the four questions raised by the respondents, so the petitioners could not raise the same claim twice. It was also contended that books relied by the respondents to prove errors were not standard books and that the Single Judge had no power under judicial review to scrutinize which answer of the expert was correct or which answer was incorrect.

Whereas, the respondents claimed that Doctrine of prejudice would apply in the present case as there were are justifiable doubts with regard to opinion of the committee. Hence, it will be appropriate for the Court, under the power of judicial review, to give direction to revisit the answers.


 The Court, while citing Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27, stated that, the Court cannot enter into the domain of academician and act as an appellate body over the opinion of the experts. The Court has little expertise to embark upon and to assess correctness of the view of experts unless on the face of it, it appears to be absurd or wrong. The members of expert committee were from reputed institutions,they had knowledge of their respective subjects to verify the objections and give report. The Court could not say that they do not have knowledge to examine the correctness of the objections filed by the respondents. The Court stated, “The academic matter should be left to the domain of the academician.”

The Court relied on Kanpur University v. Samit Gupta, (1983) 4 SCC 309, wherein it was held by the Supreme Court that, the key answer should be assumed to be correct unless it is proved to be wrong and the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong….The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. The Court refused to interfere with the model answer key while citing the decision of Ran Vijay Singh and Ors. v. State of Uttar Pradesh, (2018) 2 SCC 357, where the Supreme Court had held that, “sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. When there is no provision for re-evaluation, the candidate will not have right to get the answer-sheet re-evaluated but, when such provision is there in the statute and the error is so apparent without application of inferential process of reasoning and thought, then the Court may direct for re-evaluation of the answer-sheet.” But in the present case, the Court observed, the Commission had conducted the examination following the transparent process, had constituted a committee of experts on receipt of objections and the objections were examined and answers were re-evaluated by the said committee, so now there could not be further evaluation.


Noticing that, if this Court directs for revisit of answer sheets of impugned questions then, it might lead to a never-ending chain of litigation; the Court said,  the candidates and the examining body had invested their time and put their tremendous effort in the examination, that should not go waste and unless there exist blatant error in the key answers as well as in the opinion of the expert, it would be unjustified to interfere with the view of experts, otherwise it would be nothing but sitting over the opinion of the expert as an appellate authority, which would be outside the scope of the judicial review.

In view of the above, the Court held that interference by the Single in the report of the committee and giving direction for constitution of fresh expert committee to revisit the answer sheet was outside the realm of judicial review. Consequently, the impugned order was set aside with directions to the Commission to proceed further and declare the result of the mains examination. [Bihar Public Service Commission v. Ashish Kumar Pathak, 2021 SCC OnLine Pat 24, decided on 05-01-2021]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ. and Sujit Narayan Prasad, J. while dismissing the present appeal, relied on settled precedents upon power of judicial review against an Award passed by Tribunal or Lower Court.


Respondent had raised a demand for regularization in service but after a failed attempt at conciliation, reference was made through a notification dated 18-09-1997 to the Central Government Industrial Tribunal. The Tribunal, after considering the rival contention raised before it, passed an Award of regularization which was assailed before this Court by the writ petitioner-appellant by filing WP (L) No 4466 of 2016. However, the writ petition was dismissed. Assailing the order of such dismissal, the present intra-court appeal has been preferred.


On power of judicial review/issuance of writ of Certiorari against an Award passed by the Tribunal or Lower Court

Court placed reliance on the case of;

Hari Vishnu v. Ahmad Ishaque, (1955) 1 SCR 1104, at paragraph 21, it was noted, “With regard to the character and scope of the writ of certiorari and the conditions under which it can be issued, the following propositions may be taken as established: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Writ of certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own findings in certiorari.”

Syed Yakoob v. Radhakrishnan, (1964) 5 SCR 64, wherein the Supreme Court said, “In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the

inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court.”

General Manager, Electrical Rengali Hydro Electric Project, Orissa v. Giridhari Sahu, (2019) 10 SCC 695, the Supreme Court considered the issue about scope of issuance of writ of certiorari by the High Court and has laid down the proposition of law that if the finding recorded by the court is erroneous and based upon perversity, the order is fit to be quashed/set aside.

Court also acknowledged the findings in Sawarn Singh v. State of Punjab, (1976) 2 SCC 868, Heinz India Pvt. Ltd. v. State of UP, (2012) 5 SCC 443, Pepsico India Holding (P) Ltd. v. Krishna Kant Pandey, (2015) 4 SCC 270, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447.  

With respect to the reliance placed on Uma Devi Case

It was argued by the counsel for the appellant that there cannot be any regularisation in the service after the judgment rendered by the Constitution Bench in the case of Secretary, State of Karnataka v. Uma Devi, (2006) 4 SCC 1, but the present Court does not concur with the same, as, “Before the Constitution Bench of the Hon’ble Apex Court, the applicability of Industrial Dispute Act 1947 was not an issue. Further, the workman has claimed regularisation, in view of the policy decision of the Management FCI dated 06-05-1987 and if the Tribunal has passed an Award after taking into consideration the policy decision of the Management FCI, the same cannot be said to be illegal.”


Refusing to interfere with the Award, Court conclusively said, “It is settled that in the matter of issuance of writ of certiorari, the perversity of finding is to be looked into by the High Court in exercise of power under Article 226 and if the issue has not been raised before the Tribunal, the same cannot be proper to be looked by the High Court at the time of looking into the legality and propriety of the Award.”[Food Corporation of India v. Ganesh Jha, 2020 SCC OnLine Jhar 1078, decided on 17-12-2020]

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Case BriefsHigh Courts

Allahabad High Court: Sudhir Agarwal, J., found a government servant to be guilty of the offence of bigamy.

The instant petition was filed against the decision passed by the Senior Superintendent of Police, Agra dismissing the petitioner from the post of Fireman and therefore mandamus was sought to direct respondent not to interfere in working of the petitioner as a fireman and to pay his full salary for the period of suspension.

Another challenged placed by the petitioner was with regard to the validity of Rule 29 of the U.P. Government Servants Conduct Rules, 1956, claiming the same to be unconstitutional.

Factual matrix

Petitioners wife i.e. respondent 5 had alleged him of bigamy since he had married another woman.

Petitioner submitted that respondent 5 was married to his maternal uncle and after his death, she started living with an elder maternal uncle from whom she conceived a child also. She has also been receiving the pension of his maternal uncle. Further, he added that there is no relationship between husband and wife with respondent 5 and on the other hand he married Anita Yadav in the presence of all relatives and friends.

Further, the petitioner added that respondent 5’s motive and the intent was only to extract some monetary benefits from him.

In view of respondent 5’s complaint, petitioner was suspended.

Chief Fire Officer, Agra in his report submitted that there was no evidence of respondent 5’s marriage with the petitioner. However, both were living together and their relationship resulted in the birth of a child.

S.P. City Agra in his report submitted that respondent 5 and the petitioner were married. In 1994, petitioner without respondent 5’s knowledge solemnised the second marriage. Respondent 5 on knowing the said fact took various legal steps and also filed maintenance applications, wherein she was awarded the same by Additional Chief Judicial Magistrate.

Thereafter, a regular disciplinary proceeding was initiated against the petitioner under the U.P. Subordinate Police Officers (Punishment and Appeal) Rule, 1991, after the enquiry was completed, petitioner was held guilty of bigamy and, therefore, guilty of misconduct under Rule 29 of Conduct Rules, 1956.

Disciplinary Authority in light of the above-stated passed the impugned order of dismissal.

Analysis and Decision

Judicial Review

Bench observed that in the cases pertaining to the disciplinary enquiry, the scope of judicial review is very limited and is confined to the extent of decision-making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of malafide, bias or in violation of natural justice, or in case it can be shown that the findings recorded in the disciplinary proceedings are based on no evidence at all.

With regard to the contention that the charge of bigamy is false and there is no proof or evidence showing the valid marriage of the petitioner with respondent 5 i.e. Munni Devi, counsel for the petitioner submitted that there was no evidence of solemnization of marriage between the petitioner and Munni Devi who claimed to be his legally wedded first wife. It is also submitted that assuming that the petitioner and Munni Devi were living together and maintaining a relationship of husband and wife, yet in the absence of any proof of solemnization of marriage it cannot be held that the petitioner was guilty of bigamy and therefore violated Rule 29 of the Conduct Rules.

A very significant observation made by the Court was that,

Admittedly there was no evidence showing solemnization of marriage with Hindu rituals but there was evidence that petitioner and Munni Devi married in Court, blessed with a daughter out of their relationship of living together as husband and wife and in various documents Munni Devi was shown as the wife of the petitioner.

In these circumstances, Bench stated that it cannot be stated that the findings recorded by the Enquiry Officer and accepted by the Disciplinary enquiry that the petitioner was guilty of bigamy are based on no evidence at all. The evidence of a marriage between the petitioner and Munni Devi does exist and the sufficiency or adequacy thereof is not within the realm of judicial review of this Court.

Court cited the decision of Supreme Court, R.S. Saini v. State of Punjab, (1999) 8 SCC 90, wherein it was held that the standard of proof required in disciplinary proceedings is that of the preponderance of probability and where there is some relevant material which the competent authority has accepted and such material if can reasonably support the conclusion drawn by the disciplinary authority regarding the guilt of the employee, the court will not reappreciate such evidence to arrive at a different conclusion since the question of adequacy or reliability of evidence can not be canvassed before the court.

In Bombay High Court’s decision of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, it was held that the disciplinary authority, is the sole judge of the facts if the enquiry has been properly conducted. If there is some evidence on which the findings can be based then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court

Hence, in view of the above discussion, petitioners contention that he was not guilty of bigamy was not accepted.

The validity of Rule 29 of the Conduct Rules

Petitioner contended that Rule 29 is arbitrary, unjust and illegal, no guidelines have been given as to when the permission will be granted for the purpose of second marriage under the proviso to the said rule and therefore, it is ultra vires.

Bench found the above-stated submission to be wholly baseless and misconceived.

No law, custom or practice has been brought to the notice of the Court showing that solemnizing more than one marriage is necessary religious or otherwise activity.

Decades ago people used to marry more than once inspite of having spouse living. It is said that in Muslim Personal Law, marriage with four women is permissible.

However, to the knowledge of the court, no personal law maintains or dictates it as a duty to perform more than one marriage.

No religious or other authority has been brought to Court’s notice providing that marrying more than one woman is a necessary religious sanction and any law providing otherwise or prohibiting bigamy or polygamy would be irreligious or offence the dictates of the religion.

Polygamy cannot be said to be an integral part of any religious activity, may be Hindu, Muslim or any other religion.

A distinction has to be drawn between religious faith, belief and religious practices. Even Article 25 of the Constitution guarantees only the religious faith and belief and not the religious practices which if run counter to public order or health or policy of social welfare which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.

Bench also observed that various statutes have prohibited both bigamy and polygamy.

A Division Bench of this Court also considered the validity of Rule 27 of the U.P. Government Servant (Conduct) Rules (old) prohibiting bigamy in the case of Ram Prasad Seth v. State of Uttar Pradesh, 1960 SCC OnLine All 128 and the  Court observed that there is no law, making it necessary to solemnize a second marriage. It was held that even under the Hindu religious belief marrying a second wife in order to obtain a son when the first wife can not provide one was only a practice followed by the people and not a sanction or mandate of law.

In view of the above discussion, the Court held that Rule 29 cannot be said to be non-arbitrary or illegal and ultra vires.

Concluding with its decision, Bench held that

In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of the minor or lesser punishment.

In view of the above, petition was dismissed. [Veerpal Singh v. SSP, Agra, 2006 SCC OnLine All 1628, decided on 18-05-2006]

Read more:

Bigamy [S. 494 IPC, S. 17 Hindu Marriage Act]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ., while vacating the interim order to maintain the status quo, directed the respondent authorities to consider the matter and take an appropriate final decision in accordance with law. The Court further said, “Opening of a Government College is a policy decision of the Government permitting limited scope of judicial review.”

 Brief Facts

These writ petitions have been filed pro bono publico claiming inaction on part of the respondent-State Government in not opening certain Colleges, which were announced by the previous government during the year 2017. The primary grievance raised in the writ petition is that with change of political guard, the situation in respect of the functioning of the College also changed. The construction work of College building did not start. The staff deployed/posted in the newly opened College was transferred elsewhere. The college did not function despite the fact that 13 students including 10 girls had taken admission in the College for the academic year 2018-19.


The Counsel for the petitioner submitted that, although it is the prerogative of the State to frame policies and to review them the decision-making process has to be objective, reasoned and has to abide by the settled legal principles. In the instant case, notification announcing opening of new colleges was the outcome of careful consideration and analysis of all relevant aspects. Continued inaction on part of State to make these colleges functional is against principles of the welfare state and Rule of law. Public cannot be made to suffer due to the lackadaisical attitude of State. Reliance was placed on, State of Karnataka v. All India Manufacturers Organization, (2006) 4 SCC 683, Bannari Amman Sugars v. Commercial Tax Officer, (2005) 1 SCC 625, Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, State of T.N. v. Shyam Sunder, (2011) 8 SCC 737.

Counsel for the respondent contended that in the meeting held on 04-08-2018 under the chairmanship of Chief Minister, the issue of opening of new Colleges announced in the year 2017 including the ones involved in these three writ petitions was deliberated. Factual position was that enrollment of students in these Colleges was either very less or practically nil. The land was also not available for these Colleges. Therefore, it was not considered appropriate to make these newly announced colleges functional in academic session 2018-19. Accordingly, the staff posted for these Colleges was shifted to other Colleges.


In pursuance of its decision, the Court observed, “The respondents did not start the Colleges as the enrollment of the students in these Colleges was very less. College had neither any building/land nor any infrastructure. It is for this reason that respondents did not start the College for the academic year 2018-19. The decision taken in the meeting dated 04-08-2018, therefore, cannot be termed as unreasoned, untenable, unrealistic or in contravention to the pronouncement in Dhrub Dev’s case.  In the meeting chaired by the Hon’ble Chief Minister on 04-08-2018, the decision for not making the Colleges functional was confined to academic year 2018-19. Subsequently on 20-09-2018 ‘status

quo order’ was passed by the Court. Since no final decision in the matter has yet been taken, therefore, without going further in the matter, we dispose of these writ petitions by vacating the interim order forthwith to enable the respondents to consider the matter and take appropriate final decision in accordance with law.”


Reiterating the limited scope of interference that the Court can exercise in case of policy decisions, the Court gave liberty to the concerned authorities so to adjudicate the matter at the earliest.[Ashok Negi v. State of Himachal Pradesh, 2020 SCC OnLine HP 2498, decided on 12-11-2020 ]

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Case BriefsCOVID 19High Courts

Chhattisgarh High Court: A Division Bench of P.R. Ramchandra Menon and Parth Prateem Sahu JJ., dismissed the petition applying the principle of judicial restraint in administrative matters.

The facts of the case are such that petitioner is an enterprise registered under the Micro, Small and Medium Enterprise (Development) Act, 2006, engaged in manufacturing of ‘Ferro Vanadium’ since 1996. Respondent floated tender for purchase of Ferro Vanadium dated 27-6-2019. Petitioner submitted bid and upon conclusion of tender proceeding, the petitioner was declared as successful bidder vide Letter of Acceptance (LoA) dated 9-9-2019 for supply of 120 MT of Ferro Vanadium to various subsidiaries/steel plants of the Steel Authority of India (for short ‘SAIL’). Pursuant to the LoA, respondent BSP placed purchase to be supplied partially by 3-12-2019 and remaining by 15-2-2020. The petitioner failed to complete the second phase of supply within the scheduled period having a backlog of supply. Respondent floated another tender dated 30-6-2020, last date of submission of bid initially being fixed as 14-7-2020, which was extended till 25-7-2020. Petitioner in view of Clause 2 (c) of the RFQ was not eligible to participate in the tender proceeding, hence the petitioner requested respondent BSP vide email dated 11-7-2020 to grant extension of delivery period so that the petitioner may become eligible to submit its bid in RFQ dated 30-6-2020. Petitioner made several efforts including approaching the Chief Executive Officer of respondent BSP vide email dated 22-7-2020. Petitioner submitted its bid on 13-7-2020. Respondent BSP has issued an amended purchase order in favour of petitioner to enable it to clear its previous backlog of 13.5MT of Ferro Vanadium, to which the petitioner complied. Thereafter on 6-8-2020, the petitioner requested respondent BSP to consider its bid and to allow the petitioner to participate in the reverse auction. This email was replied by the respondent BSP vide email dated 12-8-2020 in which it is mentioned that petitioner’s bid was not found suitable as the petitioner could not qualify eligibility criteria as mentioned in Clause 2 (c) of the RFQ. This made the petitioner filed this writ petition.

Counsel for the petitioner Rishabh Garg submitted that due to unprecedented global pandemic ‘Covid-19’ the petitioner could not be able to procure raw material from the international market. It was further submitted that the action of respondent authorities in sitting over the application submitted by petitioner for extension of the delivery period since 22-6-2020 for about 45 days is an arbitrary exercise of powers. He submitted that act of non-issuing order of extension of the delivery period has deprived the petitioner of competing in a tender proceeding which is violative to Article 19 (1) (g) of the Constitution of India.

Counsel for the respondent Ashish Surana submitted that tender issuing authority/body is different than the authority/body which places purchase order and having discretion and authority for granting an extension of delivery /supply period of the period, as mentioned in the purchase order issued by it. It was further submitted that the period was expired much prior to the declaration of lock-down in the country due to pandemic Covid-19 i.e. on 12-2-2020 itself, whereas lock-down has been declared only on 24-3-2020. It was also submitted that petitioner has been sitting on his rights time and again inspite of remedy being available and petitioners being fully aware of the provisions in the tender document.

The Court relied on judgment titled Sterling Computers Limited v. M&N Publications Ltd., (1993) 1 SCC 445 which observed:

“While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the decision making process the courts can certain examine whether ‘decision making process’ was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.”

The Court observed that in the tender proceedings while exercising the powers of judicial review under Article 226 of the Constitution of India the Court is having very limited jurisdiction to interfere with the tender proceeding. It is to be seen whether the ‘decision-making process’ is correct or not.

After perusing the facts, submissions and observations laid above, the Court held that tender notification dated 30.6.2020 for procurement of Ferro Vanadium has been issued by the Central Procurement Agency of the SAIL, the petitioner could not meet out the eligibility criteria in terms of Clause 2 (c) as he was having more than 10% of backlog of supply of Ferro Vanadium of earlier purchase order given to him by SAIL, which is the basis of rejection of petitioner’s bid. There is no challenge to Clause 2 (c) of NIT on any grounds.

In view of the above, the petition stands dismissed and disposed off.[RR Ferro Alloys (P) Ltd. v. Bhilai Steel Plant, 2020 SCC OnLine Chh 406, decided on 19-10-2020]

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Case BriefsHigh Courts

Patna High Court: In a petition filed under Article 226 of the Constitution for issuance of a writ of certiorari, Birendra Kumar, J., dismissed the same finding no reason warranting interference.

The instant petition has been filed by the petitioner who pleads for the quashing of the order contained in Memo No. 3751 dated 10-10-2018 passed by the respondent 3, the Secretary of Bihar Sanskrit Shiksha Board in which the petitioner was put under suspicion and departmental proceedings were initiated against him.

The facts of the case are such that in a writ petition CWJC No. 10951 of 2015, this Court by order dated 27-06-2016 had directed CBI investigation in the matter of appointment of 73 Gramin Dak Sevaks during the period 2008-13 in Muzaffarpur Postal Division on the basis of fake and forged Madhyama Marksheet. R.C.’s were registered and during investigation, it came to light that one of the schools namely, Krishnadev Niranjan Dr Jai Narayan Sharma Sanskrit High School, Patahi, Muzaffarpur in a conspiracy, accepted forms of Madhyama examination for the period 2005-09 from the students and their fee was also collected an unauthorized manner. Subsequently, R.C. 1A of 2017 was registered on 18-01-2017. The S.P., C.B.I. vide his letter dated 04-04-2018 addressed to the Chairman of Bihar Sanskrit Shiksha Board (respondent 4) reported that during investigation, sufficient material came on the record to initiate a departmental proceeding for major punishment against three persons including the petitioner who were Assistants in Bihar Sanskrit Shiksha Board as they had allowed backdoor entry of students.

The primary ground for challenging the impugned order is that Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 is not applicable on the employees of the Sanskrit Shiksha Board nor there is any other Rule governing the service condition.

Other ground is that the disciplinary action has been taken by the competent authority solely based on the recommendation of the C.B.I. without any application of its own mind.

The petitioner has admitted that the Board has adopted the State Government’s Rules with respect to payment of gratuity, leave encashment and other benefits.

The Court observed that it’s not possible for an institution to run without any service rules. It is evident from the impugned order that Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 and Amendment Rules 2007 are applicable and under those Rules, action has been taken. Moreover, based on petitioner’s admittance, immunity cannot be claimed from the disciplinary proceeding rule.

For the second ground of non-application of mind by the competent authority, the Court thoroughly perused the impugned order and observed that it can’t be made out from the order that action has only been taken on the recommendation of the C.B.I. rather the competent authority has applied its mind while accepting the allegations which were brought on record during the investigation of the case by the C.B.I. for initiating the departmental proceeding.

Counsel for the petitioner, Bam Bahadur Jha has relied on the case of Bipin Bihari Singh v. State of Bihar, 2014 SCC OnLine Pat 5306. The Court questioned its relevance and applicability and found it unconvincing.

In view of the above, the petition has been dismissed by the court finding absolutely no reason to interfere in the impugned order.[Raja Jha v. State of Bihar, 2020 SCC OnLine Pat 1661, decided on 16-10-2020]

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Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., dismissed a petition which was filed aggrieved by the cancellation of selection process of the direct recruitment on the 12 posts of Forest Guard.

An advertisement was issued inviting applications from open market for direct recruitment on the 12 posts of Forest Guard. The selection process consisted of physical examination, written examination followed by physical endurance test. While at the last stage of the selection process a complaint was received by the respondents regarding unfair practice in the selection process, after due inquiry, a notification was issued, canceling the entire selection process for the post of Forest Guard along with notice of re-exam in future.

The counsel for the petitioner, Mr. Aditya Singh contended that there was no reason to cancel the entire selection and in the present case, there is no material whatsoever which may warrant such decision to cancel the selection. It was also contended that the cancellation of the selection has a serious consequence for the petitioners which may result in the denial of the petitioners of a public employment to them forever. In the counter affidavit it was mentioned that finding and recommendation of the enquiry officer were placed before the Committee where it was clear that appointing authority and the selection committee have sufficient proof on the basis of which decision was taken to cancel the entire selection. A perusal of the record revealed that out of the 21 candidates, only 18 candidates responded to the registered letter sent by the department, and submitted the desired information; out of these 18 candidates, fathers of 10 candidates were working in Forest department. This being the position, foul play and unfair practice in the selection process cannot be ruled out and the cancellation of selection process cannot be said to unjustified or irrational.

The Court while dismissing the petition explained that merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment, quoting from the judgment of the Supreme Court in Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 where the Court said,

            “A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. ….”

The Court further observed that it is a well-settled principle in law that while exercising its powers of judicial review of any administrative action, Courts could not interfere with the administrative decision unless it suffers from the vice of illegality, irrationality or procedural impropriety quoting from yet another Supreme Court judgment in Municipal Council, Neemuch v. Mahadeo Real Estate, (2019) 10 SCC 738. [Ashish Bisht v. State of Uttarakhand,  2020 SCC OnLine Utt 610, decided on 13-10-2020]

Suchita Shukla, Editorial Assistant ahs put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, SA Nazeer and Surya Kant, JJ has elaborately discussed the power of the Disciplinary Authority to impose punishment, applicability of rules of evidence and the scope of judicial review in such cases.

Punishment and plea of leniency

The Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying¬degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent but must also factor the financial effect and societal implication of such misconduct.

“Unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked.”

Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.

Effect of criminal enquiry on disciplinary proceedings

It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision.

“Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances.”

However, while strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances.

Scope of Judicial Review in Service Matters

The Constitutional Courts while exercising their powers of judicial review cannot assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice.

“… judicial review is not analogous to venturing into the merits of a case like an appellate authority.”

Further, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity.

[Pravin Kumar v. Union of India, CIVIL APPEAL NO. 6270 of 2012 , decided on 12.09.2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J. dismissed the writ petition and set aside the detention order on the grounds that it did not stand the test of law.

According to the factual background of the present case, the petitioner has challenged the order passed by the respondent whereby the petitioner was detained under Section 8 of the J&K Public Safety Act, 1978, on the score that the petitioner has not explained the grounds of detention while passing the order thereby he was not in a position to make proper representations to the Government.

Further, Ankur Sharma, counsel on behalf of the petitioner contended that the impugned order lacks application of judicial mind and is a duplication of the dossier of the police.

The Court on taking note of the representations made by the petitioner and delving deeper into the facts and circumstances of the case reiterated certain Supreme Court verdicts which were noteworthy and applicable to not just the case at hand but also future cases.

Rajesh Vashdev Advani v. State of Maharashtra, (2005) 8 SCC 390 — Non-application of mind by the Court and duplication of police dossier attracts setting aside the said order passed by it.

Jai Singh v. State of J&K, (1985) 1 SCC 561 — A detention order encapsulating the same wordings as the dossier is liable to be quashed.

Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 — Subjective satisfaction of the detaining authority is not immune from judicial reviewability.

Nevertheless, the Court did not hesitate to point out the very underpinning purpose of a preventive detention order which is to prevent the person from committing the acts prejudicial to the maintenance of public order. The detention order cannot be passed in a casual manner by the concerned authority thereby depriving the person of his liberty. [Surinder Singh v. Union Territory of J&K, 2020 SCC OnLine J&K 394, decided on 11-08-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq and Debabrata Dash JJ. disposed off the petition on merits.

The factual matrix of the case is that the petitioner is a registered cooperative society, involved in supply/sale of different products including fertilizers, who participated in the e-auction made by the Steel Authority of India Limited, Rourkela Steel Plant for the purpose of sale of Ammonium Sulphate by depositing the required EMD. The auction was conducted and the petitioner’s name appeared in the bid sheet under rank-1 being the sole bidder. Despite the petitioner being the successful bidder no supply of the stock was made instead another open sale dated 19-12-2019 was published by the opposite parties. Being apprehensive that in the subsequent open sale, the entire stock would be sold wholly to the detriment of the petitioner; bid was given by the petitioner for purchase of small quantity of Ammonium Sulphate.  Hence the instant writ of mandamus has been filed to command the opposite parties to deliver the stock and direct the opposite party to consider and dispose of the petitioner’s representation dated 21-12-2019 as the action of the opposite party in holding the second auction is arbitrary and illegal.

B. K. Mohanty and S S Rao, Counsel for the petitioner submitted that as there was no response towards representation dated 19.12.2019 given by the petitioner, it is clear that there was no prior intimation regarding cancellation of the first auction process been given and it is a fit case for judicial review in annulling the second auction and for restoration of the result of the first auction.

B. Dasmohapatra and B.N Bhol, Counsel for the opposite parties highlighted the scope of writ jurisdiction in contractual dealings of the State. He further highlighted that in the first auction; the petitioner was the only participant and had applied for the quantity quoting the fixed bid price making the first auction not competitive at all. Hence the present case is not fir for judicial review.

The Court after hearing both sides relied on the judgment titled Maa Binda Express Carrier v. North-East Frontier Railway (2014) 3 SCC 760 and observed that there is a certain public interest at stake in the decision of cancellation of the first auction as petitioner being the sole participant in an auction reduces competition and hinders public interest. It also stated that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’.

In view of the above, petitioner is estopped from questioning the validity/legality of the cancellation of the first auction and the petition is disposed off. [Maa Sarala Multipurpose Co-operative Ltd. v. Steel Authority of India, 2020 SCC OnLine Ori 536, decided on 20-07-2020]