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, WPC No. 2151 of 2020, 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]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

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]

Case BriefsHigh Courts

Kerala High Court: While deciding the instant petitions seeking directions for the Kerala University to postpone the examinations scheduled on 1-7-2020, C.S. Dias, J.,  declined to pass an ad-interim order to stay the examinations whilst stating that scope of judicial review in the scheduling examinations is very limited.

The present petitions were filed by various students who contended that the University, regardless of UGC (Minimum Standards of instructions for the Grant of the Master’s Degree through Formal Education) Regulations, 2003, has notified the examinations. The students via their counsel George Poonthottam further argued that their study materials are left in their colleges and hostels, which have now been converted to quarantine centres; they cannot continue the research under their Guide, in view of the travel restrictions. Another petition filed by a sixth semester law student of Kerala Law Academy, submitted that a sudden call for examination would result in a large gathering of students in a single room, which will increase the chances of Covid-19 spread manifold. Furthermore the students, who have gone to their homes in other States and abroad, would have to undergo 14 days of compulsory quarantine, when they return to the State. Therefore, the call for the examination infracts the fundamental rights under Articles 14 and 21 of the Constitution. However the standing counsel for the University, Thomas Abraham submitted that the University successfully conducted the examinations for undergraduate courses and that they received no adverse report on this. The students in fact responded positively to the arrangements made, particularly in view of the fact that they got accommodated to their nearby places to write the examinations. The counsel argued that a few students, forming a microscopic minority want to postpone the examinations indefinitely with an intention to thwart the examination schedule. It was argued that postponement of the examinations any further would result in a ‘situation with unimaginable ramifications’.      

Perusing the facts and contentions and referring to a plethora of Supreme Court decisions on the similar matters, the Bench observed that there should be extreme reluctance on the part of the Courts to interfere into the academic matters formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions. Referring to Maghi Devi v. Union of India, 2020 SCC OnLine SC 546 the Bench pointed out that the Courts should not substitute the wisdom of specialists in the field of academics. Noting that the Covid-19 pandemic is an unprecedented humanitarian crisis, and it created situations that led to an All India Lockdown and closure of schools and colleges. The Court further observed that the Central and the State Governments have issued protocols to avert community transmission of the virus, and the same protocols are being implemented and followed strictly.

Thus declining to issue any stay order for cancellation, the Court clarified that if the exams are held as per the schedule and the petitioners appear and write the examinations, it would be without prejudice to their rights and contentions raised in the instant writ petitions. [Megha Sarkar v. State of Kerala, 2020 SCC OnLine Ker 2492 , decided on 29-06-2020]

Case BriefsForeign Courts

Supreme Court of The United States: In a landmark decision affecting the immigrants in the United States of America, the 9 Judge Bench of the Court headed by John G. Roberts, CJ., with a ratio of 5:4 held that, the Department of Homeland Security’s decision to rescind the immigration relief program known as Deferred Action for Childhood Arrivals (hereinafter DACA) can be judicially reviewed under the Administrative Procedure Act by the Supreme Court.

The Court further held that the DHS’ decision to rescind DACA is arbitrary and capricious. The majority included John Roberts, CJ., Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor, JJ.

In 2012, the DHS introduced a memorandum announcing the DACA, an immigration relief program which allowed certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits. Some 700,000 aliens have availed this relief. However, during the early presidential years of Donald Trump (current President of the USA); the DACA was rescinded citing legal flaws. In 2017 the DHS clarified that it would no longer accept new applications, but existing DACA recipients whose benefits were set to expire within six months could apply for a two-year renewal. For all other DACA recipients, previously issued grants of relief would expire on their own terms, with no prospect for renewal. The rescission was challenged on the grounds of arbitrariness; violation of Administrative Procedure Act and infringement of the guarantee of equal protection under the Fifth Amendment’s Due Process Clause. The Government contended that DACA Memorandum is a general non-enforcement policy; hence the rescission of the same will not be reviewable under the Administrative Procedure Act (APA). 

Scrutinizing various legal aspects surrounding the issue, the majority observed that the DACA did not merely decline to institute enforcement proceedings; it created a program for conferring affirmative immigration relief. Additionally, by virtue of DACA, 700,000 recipients may request work authorization and are eligible for Social Security and Medicare. Access to such benefits is an interest for which courts often are called to protect; therefore the rescission is subject to review under the APA.

It was further observed that when the Attorney General determined that the DACA is illegal, it was the DHS’ responsibility to best address the determination which involved important policy choices and providing sufficient explanation for the decision to rescind DACA. However, the Attorney General’s conclusion regarding the illegality of DACA was seen as sufficient reason to rescind both benefits and forbearance, without explanation. Thus, absence of a ‘reasoned analysis’ itself renders the rescission as arbitrary. Moreover, the Government failed to adhere to the principle of ‘legitimate reliance’ on the DACA Memorandum. It was observed that, “DHS has flexibility in addressing any reliance interests and could have considered various accommodations. It was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns. Its failure to do so was arbitrary and capricious”.

Samuel Alito, Brett Kavanaugh, Clarence Thomas and Neil Gorsuch, JJ., delivered the dissenting opinion. They observed that the majority opinion is an effort to avoid a politically controversial but legally correct Government decision. [Department of Homeland Security v. Regents of the University of California, 591 US (2020), decided on 18-06-2020]

Case BriefsSupreme Court

“The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens.”

Supreme Court: When the bench of Ashok Bhushan and Navin Sinha, JJ was called upon to decide whether the High Court in exercise of its Constitutional jurisdiction conferred under Article 226 of Constitution of India can pass an order interdicting a legal fiction engrafted in a State enactment, it held,

“The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute.”

It, further, noticed that the power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution.

The precise question before the Court was whether Section 5B of the Mumbai Municipal Corporation Act, 1888 oust the jurisdiction of the High Court.

  • Section 5B of Mumbai Municipal Corporation Act requires the candidate to submit caste validity certificate on the date of filing Nomination paper.
  • A candidate who has applied to Scrutiny Committee for the verification of his caste certificate before date of filing Nomination but who had not received the validity certificate on the date of filing Nomination has to submit an undertaking that he shall submit within a period of six months from the date of election, the validity certificate issued by the Scrutiny Committee.
  • If a person fails to produce the validity certificate within a period of six months from the date of election, that election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Counsellor. The period of six months was amended to be twelve months by Amendment Act, 2018.

Holding that Section 5B of the Mumbai Municipal Corporation Act, 1888 does not oust the jurisdiction of High Court under Article 226 of the Constitution, the Court said that the High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction as contemplated under second proviso to Section 5B, provided the legal fiction had not come into operation.

“When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.”

It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is mandatory requirement but in the facts of the case before the Court, before the expiry of the period of six month, the Caste Scrutiny Committee had illegally rejected the claim necessitating filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. It, hence, noticed that in the facts of the present case, the deeming fiction under Section 5B of retrospective termination of the election could not come in operation due to the interim order passed by the High Court.

“The power of the High Court to grant an interim relief in appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate. No such fetter on the power of the High Court can be read by virtue of provision of Section 5B.”

[Benedict Denis Kinni v. Tulip Brian Miranda, CIVIL APPEAL NOS.1429-1430/2020, decided on 19.03.2020]

Case BriefsHigh Courts

Jharkhand High Court: Dr S.N. Pathak, J. dismissed the instant writ petition being devoid of merit.

The brief facts of the case are that the petitioner was appointed as an Assistant Teacher by the State Government in 1994 on qualifying BPSC exam for the same post. After a long service, he was given the charge of Headmaster in Upgraded Middle School, Khudgadda in Bokaro where he was performing his duties honestly and diligently. However, on 07.06.2010 an inspection was held in the petitioner’s school by the Block Development Officer, Gomiya on the basis of complain made by Gomiya Block President of Jharkhand Vikas Morcha on grounds of irregularity in civil work, irregularity in Mid-Day-Meal Scheme, and non-providing of the equipments of sports and instruments of music to the students under ‘Sarv Shiksha Abhiyan’, consequent to which DSE, Bokaro passed an order of suspension. However, the DSE, Bokaro, revoked suspension order and passed punishment order. Aggrieved by the same, the petitioner filed a Service Appeal before the Divisional Commissioner, North Chhotanagpur Division, Hazaribag , but the same was dismissed. Hence, the instant writ petition.

The counsel for the petitioner, Bhawesh Kumar placed reliance on Supreme Court’s decision in, M.V. Bijlani v. Union of India, (2006) 5 SCC 88 and submitted that the act of the respondents was beyond their jurisdiction and politically motivated as no opportunity of hearing was given to the petitioner, neither any explanation nor any show cause notice was issued to him, which amounts to violation of principles of natural justice. He further submitted that construction of building is under taken by the school committee constituted for this purpose under supervision of an engineer and there is no misappropriation by the petitioner.

The counsel for the respondents, Brij Bihari Sinha opposed and submitted that in response to charges, petitioner filed a show cause, which was not found satisfactory and a detailed enquiry was held and the petitioner was found guilty of the charges. Considering the enquiry report and other relevant facts, the DEO passed the order of minor punishment and as such, there is no illegality in the impugned order.

The Court relying on the judgment State of Bihar v. Phulpari Kumari held that the petitioner has been found guilty due to lack of evidence proving otherwise as there was no procedural laches in the proceedings rather a full-fledged enquiry was conducted following the provisions of natural justice and an ample opportunity was given to the petitioner. It was further observed that interference with orders passed pursuant to departmental enquiry can only be in case of ‘no evidence’; sufficiency of evidence not being within realm of judicial review.[Vinod Kumar Prasad v. State of Jharkhand,  2020 SCC OnLine Jhar 278, decided on 06-03-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Alok Kumar Verma, J., dismissed a petition filed seeking laying of a road connecting the petitioner’s village with the district headquarters.

It was stated that though construction of the road had commenced, the said work was stopped and an alternate road was being laid. The petitioner claimed that the absence of the road had made the lives of the villagers extremely difficult.

The Court while dismissing the petition explained that it cannot undertake the task of determining whether and where a road should be laid, for these were all matters in the executive realm though the villagers facing difficulty has merit and these claims could only be addressed by the state government and they do not fall under the judicial review proceedings under Article 226 of the Constitution of India. The Court, however, directed the respondents to examine the matter and take a considered decision regarding the laying of the road. [Pushkar Singh v. State of Uttarakhand, 2020 SCC OnLine Utt 74, decided on 17-02-2020]

Case BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ. allowed the present appeal of Canada Post Corporation, superseding the rulings of Occupational Health and Safety Tribunal and Federal Court of Appeals.

In the present case, the appellant was Canada Post Corporation, a federally regulated corporation, which provides mail services throughout Canada and the respondent was the Canadian Union of Postal Workers that represents employees of the appellant, including letter carriers. Since the federal government is responsible for the mail services in the country, Canada Post is expected to follow Canada Labour Code. A part of this code deals with workplace health and safety of the employees during the course of their employment. Section 125(1) (z.12) of the Labour Code mandates every employer to ensure that every part of the workplace is inspected once every year for the health and safety of the employees.

The issue in the present case was whether Canada Post Corporation is obligated to inspect every letter carrier routes and points of call as a part of the workplace, according to the code.

While the Health and Safety Officer agreed with the union’s claim, the Appeals Officer at the Occupational Health and Safety Tribunal agreed with the Post. The matter went to the Federal Court of Appeal which let the Appeals Officer’s decision stand and dismissed union’s request for Judicial review (Judicial review is where a court looks at a decision by someone acting on behalf of the government.) But the Federal Court of Appeal said the Appeals Officer made mistakes and decided that the Health and Safety Officer’s decision should stand. This meant Canada Post had to inspect all the routes and places mail was delivered.

The matter finally went to the Supreme Court of Canada for reviewing the decision of the Appeals Officer on the grounds of reasonableness according to the Vavilov framework, which lays down the applicable standard of review. Justice Rowe used the brand new Vavilov framework as laid down in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to analyze the officer’s decision, finding that the Officer’s decision was reasonable  As provided for in Vavilov, when conducting reasonableness review, a reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention, seeking to understand the reasoning process followed by the decision-maker to arrive at a conclusion. What is required of statutory delegates to justify their decision will depend on the context in which the decision is made. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker.

The majority held that it was open to the Appeals Officer to make the decision, and concluded that his decision was based on an internally coherent and rational line of reasoning.

It was held that some parts of the Code are applied in general, to all places where workers had to be during their course of employment but some parts are applied only to places that the employer controlled. The section about inspections was one of these. The purpose of the inspections is to ensure the safety of the workers. Canada Post didn’t control the mail routes or most of the places where the mail was delivered as many of them were on private property. If there were a danger, Canada Post did not have the power to fix it.

Hence, the Supreme Court after exercising its power of judicial review, allowed the decision of the Appeals Officer to stand. [Canada Post Corpn. v. Canadian Union of Postal Workers, 2019 SCC OnLine Can SC 60, decided on 20-12-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Narendra Singh Dhaddha and Mohammad Rafiq, JJ. dismissed the appeal filed by Rajasthan State Road Transport Corporation (RSRTC) challenging a judgment passed by the single judge of the present court.

In the instant case, the respondent-writ petitioner was appointed in the service of the appellants as Conductor on 09-03-1984. He was dismissed from his service and the appellant-RSRTC was directed to substitute the penalty by compulsory retirement of the respondent with continuity of service and all the benefits, with payment of only 50% actual wages. After a lot of litigation, the respondent finally joined his duties but upon rejoining he was served with a charge sheet on 10-01-2000 alleging that he was absent from his duty. Earlier also a charge sheet was issued on the allegation that he too leave for somedays and cancelled the travel of the vehicle which caused loss of Rs 22,010 to the RSRTC. Another charge sheet was issued on 25-06-2003, alleging that when he was transferred to Hanumangarh from Kota, he did not report for the duty. A notice was served to him but he avoided it by giving the reason that he was undergoing treatment for back and spinal pain. An enquiry was conducted on the respondent for three different cases. After the enquiry was completed, the Chief Manager of the RSRTC passed a common order of penalty for removal of the respondent from service on 10-05-2006. This order was challenged by the respondent, but it was dismissed later with direction to the respondent to avail alternative remedy before the Labour Court under the Industrial Disputes Act, 1947. Then the respondent preferred to a division bench, which set aside the order and remanded the matter back to the Single Bench to decide the writ petition afresh.

Vinayak Joshi, learned counsel appearing on behalf of the appellants argued that the Single Judge had done a mistake of law by setting aside the order of removal of the respondent from the service. Illegality was observed by the Single Judge because a common order of penalty cannot be passed in three different charge sheets issued. The learned Single Judge did not analysis the order dated 10-05-2006 well.

H.V. Nandwana, learned Amicus Curiae appearing on behalf of the respondent opposed the appeal and contended that the appellant-RSRTC had adopted Rajasthan Civil Services Rules, 1958 for the purpose of holding disciplinary proceedings against its employees. Relying on the judgment of the Supreme Court in Mohd. Yunus Khan v. State of Uttar Pradesh, (2010) 10 SCC 539 the counsel submitted that the order passed by the disciplinary committee was vague and non-speaking one.

The court upon perusal of the facts of the case stated that the court can exercise its power of judicial review under Article 226 of the Constitution of India and interfere if the quantum of penalty is disproportionately given. Furthermore, it was held that the order of the Single Judge of this court is just, reasonable, and equitable. [Rajasthan State Road Corporation v. Suresh Agarwal, 2019 SCC OnLine Raj 3960, decided on 04-11-2019]

Op EdsOP. ED.

Interpretation of Public Policy

A three-Judge Bench of the Supreme Court in Shri Lal Mahal Ltd. v. Progetto Grano SpA,[1] passed a landmark judgment, wherein the Court established a difference between the scope of Section 48 of the Arbitration and Conciliation Act, 1996 (the Act) concerning the enforceability of a foreign award in international commercial arbitration under the New York Convention Awards on the one hand and challenges to set aside an award under Section 34 of the Arbitration and Conciliation Act, 1996 on the other hand when the “seat” of arbitration is in India. The Supreme Court held that the expression “public policy” under Section 48(2)(b) would not include the ground of “patent illegality” and the judicial dictum of Renusagar Power Co. Ltd. v. General Electric Co.,[2] must apply to the expression “public policy” of Section 48(2)(b). In Renusagar,[3] the court narrowed “public policy” doctrine to a fundamental policy of Indian law, justice and morality, interests of India and thereby limiting the scope of judicial intervention in the foreign arbitral award. The Supreme Court added that the applicability of “public policy” of India doctrine for the purposes of Section 48(2)(b) is limited and narrow in cases involving conflict of laws and matters involving a foreign seated arbitration. Again, the Supreme Court in ONGC Ltd. v. Saw Pipes Ltd.,[4] held that “public policy” of India under Section 34 was required to be interpreted in the context of the jurisdiction of the court where the validity of the award is challenged before it becomes final and executable in contrast to the enforcement of an award after it becomes final. Therefore, public policy in Section 34 of the Act requires a wider meaning and so “patent illegality” was added as a new category for setting aside the arbitral award. Hence, the law laid down in Saw Pipes[5] would govern the scope of Section 34(2)(b)(ii) for setting aside an award under Section 34 of the Arbitration and Conciliation Act, 1996.

Precedents on “Public Policy”

The precedent laid down in Shri Lal Mahal case[6] was an important step forward in the right direction towards minimum judicial interference in arbitration process and thereby granting higher sanctity to foreign arbitral awards by laying down limited grounds under “public policy” based on which courts can refuse enforcement of foreign arbitral awards under Section 48 of the Act. Such was the necessity because the Supreme Court in Bhatia International v. Bulk Trading SA,[7] laid down that Indian courts would have jurisdiction in international commercial arbitrations irrespective of the seat of the arbitration. It led to a situation where foreign arbitral awards were challenged on the grounds of “patent illegality” in Indian courts. The scope of the expression “public policy” under Section 48 of the Act was further expanded in Phulchand Exports Ltd. v. O.O.O. Patriot,[8] wherein the Supreme Court held that expression “public policy” under Sections 34 and 48 of the Act are the same and added that a party could resist enforcement of a foreign award on grounds of “patent illegality”. Thus, it widened the scope of “public policy” under Section 48 of the Act and increased the chances of judicial intervention in international commercial arbitration but the decision of Phulchand[9] was ultimately overruled in Shri Lal Mahal[10] by Hon’ble Supreme Court.

Critical Analysis of Public Policy of India Under Section 48(2)(b)

In 2014, the Supreme Court of India clarified that expression “public policy of India” under Section 48(2)(b) is narrow and limited to the extent of[11]:

(i) Fundamental policy of Indian law.

(ii) Interests of India.

(iii) Justice and morality.

However, the Arbitration and Conciliation (Amendment) Act, 2015 with regard to enforcement of foreign awards added Explanation to Section 48(2)(b) and thereby clarifying when an award shall be considered to be in conflict with “public policy of India”. The Explanation states:

(i) That the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81.

(ii) In contravention with the fundamental policy of Indian law.

(iii) In conflict with basic notions of morality or justice.

The above explanation of “public policy of India” in Section 48(2)(b) is not in consonance with the judicial pronouncement laid down in Shri Lal Mahal case[12]. The Supreme Court has categorically limited the context of “public policy” to fundamental policy of Indian law, justice and morality, and in the interests of India. The Court also refused to give a wide import to the meaning of “public policy” under Section 48 of the Act and rejected “patent illegality” as a ground under public policy for non-enforcement of a foreign arbitral award. The Arbitration and Conciliation (Amendment) Act, 2015 by adding the words “fraud or corruption or in violation of Section 75 or Section 81” instead of “interest of India” as a ground under “public policy” has blatantly violated the judicial principles laid down in Shri Lal Mahal Ltd. case[13].

 Furthermore, in Associate Builders v. DDA,[14] the Supreme Court while interpreting the term “patently illegal” has held that under the Explanation to Section 34(2)(b), an award is said to be in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption. Therefore, the Arbitration and Conciliation (Amendment) Act, 2015 by including the words “the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” in Explanation 1 of Section 48(2)(b) has widened the scope of judicial review by impliedly inferring “patent illegality” within the expression “public policy of India” in complete disregard to the law laid down in Shri Lal Mahal case[15].

 Moreover, similar explanation of “public policy” in both Sections 34(2)(b)(ii) and 48(2)(b) is in violation of the precedent laid down in ONGC Ltd. v. Saw Pipes Ltd.[16] The Supreme Court in Saw Pipes[17] agreed to the subtle distinction in the concept of “enforcement of foreign award” as per Section 48 of the Act and “jurisdiction of the court in setting aside the award” as per Section 34 of the Act and held that the expression “public policy” in Section 34 requires a wider meaning and so the court added “patent illegality” as a category for setting aside the award. An arbitral award induced by fraud or corruption can be declared as patently illegal as it is so unfair and unreasonable that it shocks the conscience of the court. Therefore, Arbitration and Conciliation (Amendment) Act, 2015 by adding exactly similar explanation to the expression “public policy” in Section 48 of the Act which deals with enforcement of foreign awards and Section 34 which deals with setting aside of arbitral awards when the “seat” of arbitration is in India either domestic or international commercial arbitration, the Arbitration and Conciliation (Amendment) Act, 2015 left no scope for distinction between the two sections and had completely ignored the judicial pronouncements laid down on public policy.

It is pertinent to note that for arbitration regime to succeed in India it is important that limited grounds are laid down for judicial review in the enforcement of foreign arbitral awards in international commercial arbitration. Hence, explanation 1 of Section 48(2)(b) of the Act which states that “the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” should be replaced by the words in the “interest of India” under explanation of  “public policy”.

Conclusion

The decision of Shri Lal Mahal[18] and other cases on “public policy” has limited the scope of judicial interference of Indian courts regarding enforcement of foreign awards under Section 48 of the Arbitration and Conciliation Act, 1996 and has provided a ray of hope to help India establish as an international commercial arbitration destination. However, the Arbitration and Conciliation (Amendment) Act, 2015 which included “fraud or corruption” instead of “interest of India” has expanded the scope of “public policy” under Section 48 of the Act in violation of the judicial decision laid down in Shri Lal Mahal case[19]. Moreover, precedents show that courts have interpreted “fraud or corruption” as “patent illegality” which was rejected as a ground under “public policy” in Section 48 of the Act. Hence, Parliament should bring a further amendment in Section 48 of the Act by substituting the words “interest of India” in place of “the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81” which would limit the scope of judicial review in enforcement of foreign arbitral awards.


2nd-year law student, National University of Study and Research in Law, Ranchi (NUSRL), e-mail: soumyajitsaha02@gmail.com.

[1]  (2014) 2 SCC 433.

[2]  1994 Supp (1) SCC 644.

[3]  Ibid.

[4]  (2003) 5 SCC 705, para 22.

[5]  Ibid.

[6]  (2014) 2 SCC 433.

[7]  (2002) 4 SCC 105.

[8]  (2011) 10 SCC 300.

[9]  Ibid.

[10]  (2014) 2 SCC 433.

[11]  Shri Lal Mahal Ltd. v. Progetto Grano Spa, (2014) 2 SCC 433, para 29.

[12]  (2014) 2 SCC 433.

[13]  Ibid.

[14]  (2015) 3 SCC 49, para 40.

[15]  (2014) 2 SCC 433.

[16]  (2003) 5 SCC 705.

[17]  Ibid.

[18]  (2014) 2 SCC 433.

[19]  Ibid.

Case BriefsHigh Courts

Punjab and Haryana High Court: A 2-Judge Bench comprising of Mahesh Grover and Rajbir Sehrawat, JJ., addressed a petition filed against an order passed by Central Administrative Tribunal, Chandigarh where an Original Application filed by petitioner was dismissed and his prayer for re-consideration of his suitability for the Select List for promotion to the post of IAS was rejected.

Facts of the case were such that the petitioner had joined State Civil Service in 1994. According to the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, a select list for promotion of IAS had to be prepared every year but for 2011 the select list was not created. When in 2015 the select list was created, petitioner’s name was 10th in the list but he was not considered for promotion. It is to be noted that a candidate who had expired was also considered for promotion and for the same petitioner had filed a representation before the respondents which was rejected.

Petitioner while contending brought before the Court the fact that his grade was ‘outstanding’ but the same was downgraded to be ‘very good’ and this downgrading of petitioner was arbitrary. Whereas respondent negated the jurisdiction of this Court by stating the decisions of Select Committee as sacrosanct which the court or tribunal has no authority to question and would not come under judicial review. It is upon the Select Committee as to how to make a selection and they can give their own grades not necessarily the grades given by ACRs.

The High Court after perusing provisions of the rules, regulations and the guidelines governing the appointment and the assessment for appointment was of the view that guidelines stated that reasons are mandatory to be recorded when the candidate is considered in a subsequent year with the difference in assessment from the previous year. Court had rejected the contentions of respondents and observed the assessment was devoid of rationality and was arbitrary. Therefore, this petition was allowed and the Tribunal’s order was set aside. [Satya Pal Arora v. CAT,2018 SCC OnLine P&H 1731, decided on 15-02-2018]

Case BriefsForeign Courts

Supreme Court of Canada: A Nine-Judge Bench comprising of Wagner C.J., and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin, JJ. dismissed the appeal filed by an aboriginal group challenging the introduction of a legislation without their consultation, ruling that while the State had to act honourably towards its indigenous people, but it did not mean that the Parliament had to consult them in the legislative process.

The Mikisew Cree First Nation, a territory in north-eastern Alberta, was a member of Treaty No. 8 – the eighth agreement signed by Queen Victoria and First Nations in Western Canada. Under the said treaty, in exchange for giving up their ownership of a large amount of land, Mikisew kept the right to hunt, trap, and fish on it. In the present day, these aboriginal treaty rights are protected by the Constitution of Canada.

When in April 2012, an environmental protection legislation was introduced in the Parliament without Mikisew’s consultation, it brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8 and the constitutional law concept of ‘honour of the Crown’.

The Federal Court allowed Mikisew’s application but the said decision was overturned by the Court of Appeal stating that Federal Court did not have jurisdiction to hear Mikisew’s application because courts can only adjudicate on challenges to laws that have been passed, not laws that are being developed and debated. Aggrieved thereby, the instant appeal was preferred.

The Supreme Court unanimously dismissed the appeal holding that judicial review under the Federal Courts Act, 1985 was not available for actions of federal ministers in the parliamentary process. It was held that the Parliament did not have duty to consult Mikisew during the law-making process. But ‘duty to consult’ was not the only means to give effect to honour of the Crown. The court noted that while an Aboriginal group would not be able to challenge a legislation for non-compliance of duty to consult, other protections such as declaratory relief may be obtained by them.[Chief Steve Courtoreille v. Governor-General in Council, 2018 SCC OnLine Can SC 38, decided on 11-10-2018]

Case BriefsForeign Courts

High Court of The Hong Kong Special Administrative Region: A Bench comprising of Hon Yeung Ag CJHC, Hon Poon and Pang JJA., dismissed the appeal of the applicant as he was unable to discharge the burden upon him to prove the said inflicted harm upon him.

The applicant was an Indian national who sought entry to Hong Kong from Delhi on strength of his passport at the airport. While pending his removal to Delhi, he filed a non-refoulement claim on account of being harmed or likely to be killed by a said majority party in India as he refused to be a supporter of the same.

Further, his claim was rejected by the Director of Immigration on assessing the risk involved to be low as he reasoned it with the party person having ample opportunity to do so but what was claimed to may happen didn’t really had the weightage to allow the applicant his desired claim. Also, it was considered that the availability of state protection and the possibility of relocation would further lower or negate the perceived risk. The applicant had also failed to establish his non-refoulement claim under all applicable grounds.

Accordingly, after considering the facts, the Court was satisfied that the decisions of the Director and the Board were justified. Hence on account of no legal error and fairness in the process, the leave to apply for judicial review had been refused. The appeal was dismissed.[Maninder Singh, In re, [2018] HKCA 733, order dated 31-10-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Rohit B. Deo, J. quashed the order of the trial court whereby plaintiff’s application under Order XVIII Rule 3-A CPC seeking permission to examine his power of attorney (his son) he himself steps into the box.

The petitioners were the defendants in the special civil suit instituted by the respondent-plaintiff seeking a decree of damages for defamation. The application was predicated on the assertion that the power of attorney holder was personally acquainted with the facts. The averment in the application was that the plaintiff was aged 80 years and suffering from various ailments. It was also averred that no prejudice would be caused to the defendants if the son of the plaintiff is examined before the plaintiff. The defendants opposed the application, inter alia, denying that the plaintiff was suffering from various ailments. However, by the order impugned, the trial court allowed the plaintiff’s application under Order XVIII Rule 3-A. Aggrieved thereby, the instant petition was filed by the defendant.

The High Court, after considering the facts and circumstances of the case, observed that the legislative mandate is that ordinarily where a litigant himself wishes to appear as a witness, he shall so appear before any other witness in his behalf has been examined. Rule 3-A confers a discretion on the Court to permit, for reasons to be recorded, the plaintiff to appear as his own witness at a later stage. However, implicit in the statutory scheme is the rider that the normal rule may be deviated from only in exceptional circumstances and for reasons recorded which must sustain judicial review. “The legislative object of bringing on statute Rule 3-A was to ensure that a litigant should not be permitted to bide his time and to fill in the lacuna or cover the loopholes after the other witnesses are examined.” In the matter at hand, the Court found it difficult to believe that the plaintiff was suffering from various ailments to such an extent that he was not in a position to step into the witness box. Therefore, the Court held that the order impugned militate against the object and intendment of Order XVIII Rule 3-A, which was accordingly quashed. [Sanj Dainik Lokopchar v. Gokulchand Govindlal Sananda,2018 SCC OnLine Bom 3336, decided on 11-10-2018]

Case BriefsHigh Courts

Tripura High Court: A writ petition for the claim of compensation in a medical negligence case was filed before a Single Judge Bench comprising of Ajay Rastogi, CJ.

Facts of the case are that the petitioner is the father of the deceased child who incurred a head injury. The child was shifted immediately to a hospital but after three days after the accident, he was moved to AGMC & G.B.P. Hospital, where he succumbed to his injuries. Petitioner alleged medical negligence in criminal complaint after which FIR was registered. For purpose of examining the same, a committee was constituted by the order of Director of Health Services. The report of committee examined the matter and concluded that treatment given to the patient was in accordance with the existing protocol and no negligence was found on part of the doctors involved in the treatment of deceased.

 The High Court was of the view that under limited scope of judicial review under Article 226 of the Constitution of India it is not possible to examine the allegation of medical negligence as the parties have not yet provided evidence in respect of their respective claims. Therefore, Court observed the quantification of compensation to be out of their scope due to the above reasons and the writ petition was dismissed. [Krishna Sarkar v. Government of Tripura,2018 SCC OnLine Tri 209, Order dated 13-09-2018]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Shampa Sarkar, J. dismissed a writ petition filed by a student of BA English (Honors), holding that it could not pass orders in violation of policies of educational bodies.

The petitioner was a student of BA English (Honors) Part I in the University of Calcutta. She appeared in Part I examination in which she failed. She applied for re-evaluation but the marks remained unchanged. Thereafter, she applied for production of her answer script to the Authority concerned; however, the same was not supplied to her. The petitioner sought an order from the High Court to be allowed to appear in Part II examination as a special case.

The High Court perused the record and found that the result of Part I exam was published in 2017. A copy of petitioner’s answer script was sought to be produced in January 2018. Thereafter, till May 2018, the petitioner did not take any step regarding inaction of the respondent. The High Court categorically observed that it cannot permit any candidate to sit in any examination if they are ineligible under the rules. Further, ‘the writ court sitting in judicial review, cannot pass any order in violation of the rules and policies of the educational bodies’. The examination rules stated that any candidate who had failed in Part I examination, will have to repeat the same exam. The petitioner did not have any vested right to appear in Part II examination. Moreover, the petitioner was sleeping over her right since January 2018. In such circumstances, the petition was dismissed. [Sangita Ganguly v. University of Calcutta, 2018 SCC OnLine Cal 2953, dated 23-5-2018]