Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a public interest litigation seeking issuance of show cause to the respondents as to why a writ of Mandamus shall not be issued, declaring the possession of all exotic animals/ birds illegal and the person in possession of them be forthwith prosecuted for violation under the Customs Act by the Department of Revenue Intelligence and under the Wildlife (Protection) Act, 1972(‘Wildlife Act’), Indrajit Mahanty, CJ. and S.G. Chattopadhyay, J. has observed that despite the settled legal position, the Court cannot direct the Central Government to forthwith make amendments against legislative will to include all exotic species in the Wildlife Act, 1972 and in the Notifications issued under Section 11-B, 123 and 135 of the Customs Act, 1962. Further, it can neither direct seizure/ confiscation contrary to existing provisions, nor can direct change in classification of such bailable offence to non-bailable offence, to enable arrest and prosecution of all the persons concerned with such undeclared stock of exotic animals / birds.

The Court noted that the respondent has issued an advisory dated 11.06.2020 for dealing with import of exotic live species in India and declaration of stock within six months of the issuance of the said advisory.

The Court cited the decision in Dinesh Chandra Sharma v. Union of India, (PIL CIV 12032 of 2020), wherein the Court has considered pre and post advisory period and observed that “exotic birds/ animals do not come under the purview of Wildlife (Protection) Act, 1972 and there is no provision under the Wildlife Act to issue licence or permission for dealing in exotic birds”. Further, it also referred to the ruling in Swetab Kumar v. Ministry of Environment, Forest & Climate Change and Others (Writ Petition (Civil) No. 540 of 2022), wherein the Court approved Dinesh Chandra (supra) and held that “any declaration made after the expiry of the window under the advisory shall carry no such exemption and the declarer shall have to comply with all requisite documentation under the extant laws and regulations”. It was also observed that the same advisory has also been the subject matter of challenge before various other High Courts. However, it has been upheld at all junctures.

The Court observed that the advisory is an executive direction to maintain inventory of exotic species and regulate the import of such species and the exemption that is provided in the advisory is limited to dispensation with explanation of source of exotic species. Further, the consequence of non-declaration within the time stipulated in the advisory is that the owner of exotic species is required to comply with all requisite documentation under the extant laws and regulations.

Moreover, the Court viewed that there is no change in the statutory provisions regarding the pre or post advisory period and cited the judgment of Anil Naidu v. UOI (Writ Petition No. 807 of 2019) as well as the judgment of Dinesh Chandra (supra), wherein it was clarified that the position regarding the inapplicability of the penal provisions of Wildlife Act, 1972 and the Customs Act 1962 regarding exotic species continue to apply as per extant laws and regulations despite advisory dated 11.06.2020.

The Court observed that it is settled as per the extant laws and regulations that:

(i) Domestic trade, possession, transportation and breeding of undeclared exotic animals/ exotic birds within India continues to be out of the purview of Wildlife Act, 1972.

(ii) There is no reverse burden to prove licit importation into India, because such undeclared exotic species are not included in Notifications issued under Section 123 of the Customs Act.

(iii) The undeclared ‘exotic animals/ birds’ continue to be out of purview of provisions of chapter IVA- Detection of illegally imported goods and prevention of disposal thereof, containing Sections 11A to 11G, as they are not notified under Section 11B. Thus, the person in possession of undeclared ‘exotic animals/ Birds would continue to be not bound to comply with requirements of Section 11-C to 11-F of the Customs Act regarding intimation of place of storage, precautions to be taken in acquiring, maintaining accounts or sale thereof.

(iv) The offence concerning exotic live species under Customs Act continues to be ‘bailable’ under Section 104(7) of the said Act, in absence of any notification under Section 135(1)(i)(c) of Customs Act, 1962 notifying exotic animals/ birds as “prohibited goods” and bail continues to be statutory as well as fundamental right.

The Court viewed that it can neither direct, nor expect the Government to take such drastic steps in haste, without assessment of impact and without detailed study, as such amendments in statutory provisions may result in drastic penal action against common man. Further, there are sufficient safeguards available in law to prevent cruelty to animals which are also applicable to exotic species and directing amendments in the Acts would lead to chaos and no public purpose will be achieved.

Thus, the Court observed that unless a person is caught smuggling exotic species on the international borders, no presumption can be drawn that domestic keeper have illegally imported the exotic species on the ground that such person has not declared ownership of exotic species within the stipulated time, or has acquired such species after the stipulated time, for any arrest/prosecution/confiscation based on presumption, as it would be unreasonable and violation of rights guaranteed under Article 14 and 21 of Constitution of India.

[Adwitiya Chakrabarti v. Union of India, 2022 SCC OnLine Tri 633, decided on 21.09.2022]


Advocates who appeared in this case:

Manoj Kumar Biswas, Advocate, for the Petitioner;

Government Counsel Mr. Biswanath Majumder, Advocate, for the Respondent.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a PIL filed by Pankaj Kumar, a young advocate of 29 years of age, enrolled with Delhi Bar Council is seeking issuance of writ of mandamus to consider the financial difficulties faced by young lawyers and provide them with financial assistance of Rs.5000 during initial year of practice; a Division Bench of Satish Chandra Sharma and Subramonium Prasad, JJ., refused to entertain the instant Public Interest Litigation.

The Court, however, noted that unfortunately, young professionals in all fields, be it from Medicine, Chartered Accountancy, Architecture and Engineering etc., face problems that are similar to the ones being faced by young advocates.

The Court further noted that it is well settled that a writ can lie only for the enforcement of the right established by law and Article 21 cannot be stretched to encompass in itself a right of an Advocate to claim a monthly stipend from Bar Associations and it is for the Bar Councils to make provisions to provide some kind of financial assistance so that the young advocates, who are the future of this noble profession, are able to sustain themselves.

The Court requested Bar Council of Delhi and the Bar Council of India to make provisions for providing stipends to the young advocates, who have recently enrolled themselves in the profession, so that they can overcome the financial stress in the initial years of practice.

The Court further made an appeal to the senior lawyers to ensure that the stipend that is paid to their juniors is enough for their juniors to evade the financial stress that accompanies this profession, allows them to lead a more dignified life and be more mindful of the financial background of their juniors and employ a more empathetic approach towards the same, considering the virtuosity of this profession.

On a further direction sought by the petitioner regarding making rules for chamber/coworking space allotment by creating equal opportunity to the newly enrolled advocates, the Court observed that in view of the fact that there are rules for allotment of chambers, the plea of the Petitioner to provide for specific chambers only for junior advocates cannot be entertained.

The Court also appealed to the Bar Councils/ Associations to be more sensitive to the difficulties of the younger members of the Bar and to consider providing some specified space which can be utilized by the young advocates to further not only their career but also the future of this profession.

[Pankaj Kumar v. Bar Council of Delhi, 2022 SCC OnLine Del 3071, decided on 23-09-2022]


Advocates who appeared in this case :

For petitioner: Mr. Srikant Prasad and Mr. Dewashish Viswakarma, Advocates.

For respondent: Mr. Anurag Ahluwalia, CGSC with Mr. Danish Faraz Khan, Advocate for R-3. Mr. Anuj Aggarwal, ASC for GNCTD with Ms. Ayushi Bansal and Mr. Sanyam Suri, Advocates for R-4.


*Arunima Bose, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a significant case where a widow whose husband died due to adverse effects of Covid-29 immunization had approached the Court seeking compensation for herself and her children, V.G. Arun, J., directed the National Disaster Management Authority (NDMA) to formulate policy/guidelines for identifying cases of death due to after-effects of Covid-19 vaccination and for compensating the dependants of the victim. The Court remarked,

“Sitting in this jurisdiction, I have come across at least three cases where pleadings are to the effect that the person who had undergone Covid-19 immunization vaccination had succumbed to the after-effects of vaccination.”

On being informed by the Assistant Solicitor General that there is no policy of the Central government for compensating the victims of adverse events, following Covid-19 vaccination, the Court expressed,

“Even if the numbers are very few, there are instances where persons are suspected to have succumbed to the after-effects of immunization.”

Hence, opining that, in such circumstances, NDMA and Ministry of Health and Family Welfare, Union of India are bound to formulate a policy for identifying such cases and compensating the dependants of the victim, the Court directed NDMA to formulate policy/guidelines for identifying cases of death due to the after-effects of Covid-19 vaccination and for compensating the dependants of the victim.

The Court emphasized that the needful in this regard shall be done as expeditiously as possible and at any rate, within three months. The matter is posted after three months.

[Sayeeda K.A. v. Union of India, 2022 SCC OnLine Ker 4514, decided on 01-09-2022]


Advocates who appeared in this case :

M/S. Prabhu K.N. & Manumon A., Advocates, for the Petitioner;

Assistant Solicitor General, for the Union of India.


*Kamini Sharma, Editorial Assistant has put this report together.

Madras High Court
Case BriefsHigh Courts

Madras High Court: G R Swaminathan J. directed the State to pay compensation of Rs 1 Lakh to a student who could not take admission in the medical course in the academic year 2021-2022 as he was unable to register his name on the portal for NEET counseling even after obtaining marks beyond cut off limit, due to poor internet connectivity.

The petitioner aspiring to be a doctor is aggrieved because even after securing 409 marks in NEET exam, he could not register his name on the portal on time because of poor internet connectivity and the server being busy. He later found that students who scored as low as 108 marks in NEET were allotted seats under the management quota. Thus, instant petition was filed under Article 226 praying to issue a writ of Mandamus directing the respondents to give admission to the petitioner in any one of the Medical College under the Management Quota based on the petitioner’s NEET Examinations score.

The Court reaffirmed the stand of the counsel for respondent stating that it is not possible to direct the admission of the petitioner for any medical course for the academic year 2021-22 as the writ petition was filed in April 2022 .

The Court also remarked for the marks obtained by him was entitled to get admission in a medical course under management quota but could not because of online glitches. If the respondents adopted a dual mode of counselling, i.e., both physical and online, the situation could have been avoided and also,If the respondents had given the petitioner reasonable time to register himself in the portal, then probably, he could have made it.

Placing reliance on Asha v. PTBD Sharma University of Health Sciences, (2012) 7 SCC 389 and S Krishna Sradha v. State of Andhra Pradesh, (2020) 17 SCC 465, the Court noted that Court must do complete justice between the parties, particularly, where the legitimate right of the Appellant stands frustrated because of inaction or inappropriate action on the part of the concerned Respondents and in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

Further reliance was placed on Action Committee Unaided Recognized Private Schools v. Justice for All, Special Leave to Appeal (C) No. 4351 of 2021, decided on 08-10-2021 to emphasize that the digital divide has produced stark inequality in terms of access to education. Children belonging to EWS/DG suffer the consequence of not being able to fully pursue their education and many may have to drop out because of lack of access to internet and computers.

The Court directed the State to pay a sum of Rs.1 lakh as compensation to the petitioner-student within a period of eight weeks and ensure that the selection process is conducted and finalized in such a way so as to ensure that incidents such as the one on hand do not recur.

[K Lal Bhagadhur v. Director of Medical Education, 2022 SCC OnLine Mad 3661, decided on 13-07-2022]


Advocates who appeared in this case :

Mr. D. Srinivasaraghavan for Mr. S.M. Mohan Gandhi, Advocates, for the Petitioner;

Mr. V. Om. Prakash, Government Advocate, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court (Dharwad Bench): Suraj Govindaraj, J. while deciding a matter regarding handcuffing of an accused during arrest, held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others.

Some disputes had arisen between a law student studying in Shikshan Prasrak Mandals Law College at Raibag (‘the petitioner’) and Babu Annappa regarding a mortgage deed executed in respect of agricultural lands belonging to the petitioner. Due to this, five criminal cases were filed against the petitioner for offences under Section 138 of the Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. Pursuant to this, the petitioner was arrested by the Respondent 3- Police Sub-Inspector, Ankali Police Station after a non-bailable warrant was issued Thereafter, he was allegedly paraded with handcuffs in Ankali Town and later on was taken in a bus in handcuffs from Ankali to Chikodi Police Station, without being produced before the Court.

Later on, the petitioner’s bail application was rejected, and he was remanded to judicial custody. He appealed the order of conviction which was thereby stayed The petitioner alleged that despite the conviction being stayed, he was repeatedly harassed by the police as they would illegally arrest or detain him, visit his house, and threaten him. Thus, the petitioner filed the present writ petition seeking relief in nature of compensation under Articles 226 and 227 of Constitution of India, for the damage caused to his life and reputation due to illegal detention and illegal handcuffing even prior to the petitioner being proven guilty.

Issues framed by the Court:

1. Whether the accused who is arrested can be handcuffed? If so, under what circumstances?

2. If there is any violation by the Arresting Officer, would the accused be eligible for compensation?

3. On what basis is the compensation required to be determined and paid?

4. Whether the accused suffered damage to his life and reputation or not? If yes, then what amount of compensation should be awarded?

Relevant Statutory Provisions regarding Arrest and Handcuffing

A perusal of Section 46 of the Code of Criminal Procedure, 1973 ‘CrPC’ indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless there is a submission to custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.

Section 49 CrPC indicates that a person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Therefore, it is the requirement of law that the restraint has to be reasonable and only to the extent that the person does not escape from custody.

Section 220 of Penal Code, 1860 ‘IPC’ indicates that if a person who has legal authority to confine a person, confines such a person contrary to law, he shall be punishable with imprisonment, which may extend to seven years or with fine or with both.

Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual provide for instructions for using handcuffs. A perusal of the said provisions would indicate that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. In the event of an accused is handcuffed, the facts and reasons for it is required to be recorded in the Station House Dairy.

Analysis and Findings:

Reliance was placed on Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 and Antonio Sebastiao Mervyn Degbertde Piedade Pacheco v. State of Goa 2008 (6) AIR Bom R 585 and observed that normally during arrest an accused cannot be handcuffed. Only under extreme or exceptional circumstances, such as violent tendencies or the possibility of escape, can an accused be handcuffed. Furthermore, there are some requirements to be fulfilled by the authorities in such a case:

  • When an accused is handcuffed, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.

  • Whenever an accused is produced before the Court of law, it would be required of the Court to enquire if the accused had been handcuffed or not and if handcuffed, to ascertain the reasons recorded by the Arresting Officer on the justifiability on the same.

Thus, the court held that “handcuffing should be by way of last resort and such handcuffing should mainly be only for the reason of whether there is a possibility of the accused and/or under trial prisoner escaping custody, causing harm to himself or causing harm to others. The nature of offences and the punishment prescribed for the said offence are not relevant for the matter of handcuffing.

Dealing with the issue regarding compensation, reliance was placed on D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and Nilabati Behera v. State of Orissa (1993) 2 SCC 746 and observed that “if there is a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation”. Thus, in the present case, the State is responsible for compensating the petitioner and the amount of damage is to be calculated on the basis of any evidence and documents produced by the petitioner.

Regarding the third issue, the court held that there are a few considerations that have to be made while awarding the compensation, these considerations are as follows:

  • The court should take into consideration the loss/damage that might have been caused to the person who has been handcuffed.

  • The court should also consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law. Additionally, although the State would be required to pay the compensation, the State would be at liberty to recover the same from the concerned defaulter(s).

Thus, the court observed that “Compensation which is required to be paid as aforesaid being a Public Law Remedy, there cannot be a straitjacket formula which could determine the amount of compensation that has to be paid. Be that as it may. The compensation which is required to be paid is by applying the principles of strict liability.

Lastly, the court held that the evidence provided by the petitioner does not sufficiently prove that the petitioner was paraded in handcuffs and his reputation has been as immensely damaged as he claims. Thus, for the procedural irregularity of handcuffing, the petitioner was awarded Rs. 2 lakhs as compensation as opposed to Rs 25 lakhs which was originally demanded.

[Suprit Ishwar Divate v. State of Karnataka, 2022 SCC OnLine Kar 1133 decided on 10-06-2022]


Advocates who appeared in this case :

Santosh P. Pujari, Advocate, for the Petitioner;

Praveen K. Uppar, Advocate, for the Respondent.

TATA
Case BriefsHigh Courts

   

Delhi High Court: Dinesh Kumar Sharma, J. denied relief to Swastika Ghosh and Manush Shah (‘Petitioner(s)'), table tennis players who challenged the decision taken by Table Tennis Federation of India regarding the players who will represent India in Commonwealth Games 2022.

The petitioner(s) filed writ of Mandamus directing the Table Tennis Federation of India (‘Respondent 1') to include the petitioners in the list of 4 selected players for the women’s table tennis team for the Commonwealth Games, 2022 as their names have not been included in the final selection list by the Selection Committee and the Committee of Administrator despite fulfilling the selection criteria as laid down by the Federation.

Counsel for petitioner submitted that the process of the selection has not been adopted correctly and the persons who have been included in the list or being proposed to be sent to participate in the commonwealth games are much below in the ranking as compared to the petitioners before the Court.

Counsel for respondent submitted that the names have already been finalized and have been sent to the Indian Olympic Association on 07-06-2022 and now the Indian Olympic Association might have sent the names further and the courts are not an appropriate forum to make the selection of players to participate in the games and it is only for the expert bodies to decide.

The Court observed that it is a settled proposition of law that issuance of a writ is a discretionary remedy, and the court can refuse to exercise its jurisdiction even if the petitioner may have a claim in law.

Reliance was placed on Punjabi University v. UOI, 2011 SCC OnLine Del 3496 wherein it was held that if the power of judicial review were to be extended into matters such as these also, it would adversely affect the sports.

The Court noted that a mere mistake is not sufficient for this Court to exercise powers under Article 226 of Constitution of India. A writ can be issued only when there is something more than a mere error/mistake. The court in its writ jurisdiction can interfere only if its decision is illogical or suffers from procedural impropriety or shocks the conscience of the court in the sense that it is in defiance of logic or moral standards. The court cannot clothe itself with the power to make a choice and should not substitute its decision over a decision of an expert committee. It may be reiterated that the scope of judicial review is limited to the deficiency in decision making process and not the decision.

The Court further opined that the committee of administrators has minutely examined the claim of each of the sports person and passed a detailed order while finalizing the list, which is under challenge. The power of judicial review in the matters relating to sports can be exercised only if there is an allegation of bad faith. The courts do not have any expertise to get into the selection and finalization of players for participation at the international level. This court is conscious of the fact that any such findings can be interfered with only if there is any perversity or arbitrariness in the findings arrived at by the federation concerned.

The Court thus held “Committee of Administrator has weighed different factors and therefore, this court finds itself unable to interfere in exercise of its power of judicial review. This court also finds complete absence of any arbitrariness or malafide in the decision arrived at by the Committee of Administrators.

[Swastika Ghosh v Table Tennis Federation of India, WP (C) No. 9488 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

Arijit Prasad, Sr. Advocate and Keshav Ahuja, Advocate, for the Petitioner;

Moazzam Khan, Aman Gupta and Brijesh Ujjainwal, Advocates, for TTFI/R-1;

Harshit Jain, Poonam Das, Yashima Sharma and Prakhar Sharma, Advocates, for the Sports Authority of India R-2;

Vineet Dhanda with Sarvan Kumar, Advocates, for UOI;

Deepak Biswas, Shilpa Gamvani and Atmaja Tripathi, Advocates, for R-6;

Ritika Jhurani and Dinesh Sharma, Advocates, for the R-7.


*Arunima Bose, Editorial Assistant has reported this brief

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., dismissed a PIL seeking issuance of writ of Mandamus on the Union of India, to impose restrictions to prevent Civil Servants from contesting elections to the Legislature, Central or State, on a political party ticket, immediately after retirement or resignation from service, by imposing a “Cooling off Period”.

Finding the allegations of bureaucrats deviating from strict norms of political neutrality with a view to obtaining party tickets to be vague, devoid of particulars and unsupported by any materials, the Bench expressed,

“No particulars have been given of the number and/or percentage of erstwhile bureaucrats, who have contested elections on the ticket of a political party, not to speak of any act on their part, prior to their retirement, in deviation of the standards required of bureaucrats.”

Law on Mandamus

A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus. The right to compel performance of a public duty must be that of the Petitioner.

Hence, observing that there was no complaint of violation of any fundamental right of the Petitioner or any group of persons represented by the Petitioner, the Bench held that the writ petition could not be entertained; the Bench observed,

“Nobody has the fundamental right to get a mandatory order of this Court directing the appropriate Legislature to enact law or the Executive to frame rules imposing restrictions on the eligibility of civil servant to contest elections.”

The Bench clarified that the writ of Mandamus is only granted to compel performance of a public duty or to enforce private rights when duties of a public nature, affect public rights or when private rights are breached by or in collusion with public officers. The legal duty that may be enjoined by Mandamus can be one imposed by the Constitution, a statute, any law or by rules or orders having the force of law, which are capable of being judicially enforced.

Judicial Limitations on issuing Mandamus

“This Court, and/or the High Court, does not give any direction to the State to enforce an Act passed by the Legislature. Nor does the Court enforce instructions in a Departmental Manual not having statutory force, any non-statutory scheme or concession which does not give rise to any legal right in favour of the Petitioner, far less, any recommendation made by an authority such as the Election Commission.” Observing the aforesaid, the Bench held that it is for the Union of India to take a decision on the recommendation of the Election Commission, in accordance with law and that it is not for the Court to decide what should be the policy of the Government. Since, policy matters are never interfered with, unless patently arbitrary, unreasonable or violative of Article 14 of the 5 Constitution.

Observations and Conclusion

Noticeably, the petitioner had filed a similar petition in the Jharkhand High Court which had been dismissed; however the petitioner did not question the dismissal order in the Supreme Court. Therefore, the Bench held that the petition was barred by the principles of res judicata and/or principles analogous thereto. With regard to the issue raised, the Bench opined,

“There can be no doubt that law may be enacted, laying down the norms and qualifications for contesting specific elections. It is, however, for the appropriate Legislature to frame the law. There can be no doubt that civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency.”

Integrity, impartiality, neutrality, transparency and honesty being non-negotiable for the civil servants, the Bench held that ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968.

Apart from the fact that no fundamental right of the Petitioner was in issue, the Bench opined that there was no merit in the contentions raised, even otherwise.

Hence, the Bench concluded that it is not for the Court to interfere in matters relating to framing of law, rules or policy and the question, whether there should be any “Cooling off Period” for civil servants for them to contest elections or not should be best left to the concerned Legislature.

Consequently, the petition was dismissed.

[Vivek Krishna v. Union of India, W.P. (C) No. 1034 of 2021, decided on 18-04-2022]


Appearance by:

For the Petitioner: Vivek Krishna (in person)


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J.dismissed a petition which was filed in public interest praying for a writ of mandamus to incorporate certain provisions in the law, namely, Section 14-A of the Madhya Pradesh Municipal Corporation Act, 1956 and Section 32-A of the Madhya Pradesh Municipalities Act, 1961.

The Court irrespective of the submissions being made stated that a writ for mandamus cannot lie to direct the State to enact a law.

The Court was of the view that such a petition for mandamus would not lie hence the petition was dismissed.[Nagrik Upbhokta Marg Darshak Manch v. State of Madhya Pradesh, 2022 SCC OnLine MP 397, decided on 28-02-2022]


For petitioners: Mr Dinesh Kumar Upadhyay

For respondents: Mr Brahmdatt Singh, Mr Siddharth Seth


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: Nandita Dubey, J. heard a petition which was filed seeking issuance of the writ of mandamus to the respondents to take appropriate effective steps against the Reliance Telecom Services not to permit them for installation of the mobile tower in the premises of Jai Hind School, V.V. Giri Ward, Pipariya.

It was a matter of concern that the tower being installed in the school premises would animate injurious radiations which would be harmful to the inhabitants.

Counsel for the respondents submitted that the Government had issued a gazette Notification Rule 21 of which read as follows:

“Rule 21. Radiation Control :- It shall be mandatory to the licenced agency or licencee to strictly comply with the radiation emission norms as fixed by the Department of Telecommunication or Competent Authority of Government of India. The complaints of radiation emission shall be decided by Department of Telecommunication or competent authority of Government of India and it shall be mandatory for every Telecom company to follow the aforesaid decision.”

The Court did not consider it necessary to go into the grievance of the petitioner keeping in view the aforesaid objection raised by the counsel for the respondents and finding a statutory provision in the form of Rules framed namely Rule 17 and 21 of Rules of 2012 which contemplates a provision for redressal of grievance in the matter of radiation by mobile towers.

The Court asked the petitioner to file an appropriate complaint in the matter before the competent authority under the statutory rules and competent authority was directed to look into the grievance of the petitioner and to ensure that tower in question was installed strictly in accordance with the statutory rules and guidelines issued from time to time in this regard.[Sanjay Kumar Raghuvanshi v. State of M.P, 2022 SCC OnLine MP 250, decided on 03-01-2022]


Shri Prashant Mishra, counsel for petitioner

 Shri Dheeraj Tiwari, Panel Lawyer for respondents/State.


Suchita Shukla, Editorial Assistant has reported this brief.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Satyen Vaidya, JJ. dismissed the petition being devoid merits.

The facts of the case are such that the petitioner was appointed as Staff Nurse at IGMC Shimla, however, prior to joining the respondents Department, marriage of the petitioner was solemnized in the year 2016 and her husband is employed in Delhi in a private company. The only ground on which the petitioner sought her transfer was that since from the birth of her daughter Mrinali Thakur, the petitioner has never been able to enjoy the company of her daughter except for the period when the petitioner was sanctioned maternity leave and any other kind of duly sanctioned leave and the fact, that since the nature of the job of the petitioner has been such like that she hardly spares time for her child and as such she could not afford to keep her daughter with herself at Shimlahe instant petition was filed seeking relief in the nature of mandamus and the respondents may be directed to decide the representation moved by the petitioner sympathetically and transfer the petitioner from IGMC Shimla to SLBS Medical College & Hospital Ner Chowk, Mandi, against the vacant post, keeping in view the genuine request of the petitioner as mentioned in the representation.

The Court observed that mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law. In other words, a writ of mandamus is issued against a person, who has a legal duty to perform, but has failed or neglected to do so. The mere fact that the representation has been filed before the respondents does not furnish any cause of action in favour of the petitioner to maintain the instant petition; for there is no corresponding duty cast upon the respondents to decide such representation. While choosing career and particular service, the petitioner very well knew that she could not be transferred to the station where her husband is posted in a private job in Delhi and was thus required to be prepared to face such hardships

The Court thus held the instant petition and the same is accordingly dismissed, so also the pending application(s).[Lata Devi v. State of HP, 2021 SCC OnLine HP 8908, decided on 04-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Rajiv Rai

For respondent: Mr. Ajay Vaidya

Case BriefsSupreme Court

Supreme Court: Explaining the scope of writ jurisdiction, the bench of MR Shah* and BV Nagarathna, JJ has held that the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, cannot be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.

The Court was deciding the appeal against the Punjab and Haryana High Court verdict where the High Court had directed the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riots affected persons in all private unaided nonminority Medical/Dental institutions in the State of Punjab and had further directed that the said reservation/quota shall apply to management quota seats as well and further directed that the fresh notification shall also provide for a sports quota of 3% in Government Medical/Dental Colleges.

The State of Punjab framed its Sports Policy in the year 2018 which provided that 3% reservation in admissions will be provided for graded sports persons. However, by order dated 25.07.2019, a conscious decision was taken by the Government of Punjab to provide 1% reservation for sports persons. The said order was passed taking into consideration Clause 10 of the Sporty Policy, 2018.

The Court noticed that while it was true that as per clause 8.11(v), 3% reservation for sports persons has been provided, however, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sports persons other than 3%. Also, the order has been issued and 1% reservation/quota for sports persons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the State Government to provide for only 1% reservation/quota for sports persons.

The Court, hence, held that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government.

“The High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India.”

Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges was found to be unsustainable and was hence, set aside.

[State of Punjab v. Anshika Goyal, 2022 SCC OnLine SC 86, decided on 25.01.2022]

*Judgment by: Justice MR Shah

Counsels

For State: Senior Advocate Meenakshi Arora

For writ petitioners: Senior Advocate P.S. Patwalia

Case BriefsSupreme Court

Supreme Court: Stating that the creation and/or sanction of the posts is the sole prerogative of the Government, the bench of MR Shah* and AS Bopanna, JJ has held that High Court cannot, in exercise of the power under Article 226 of the Constitution, issue a Mandamus to direct the Department to sanction and create the posts.

The Court was deciding a case wherein the respondents-original applicants were working as contingent paid part-time sweepers (Safai Karamcharies working for less than five hours a day) in a Post Office at Chandigarh. There is no documentary evidence on record to establish and prove that the respondents were working continuously.

It is important to note that there are no sanctioned posts of Safaiwalas in the Post Office in which the respondents were working.

A regularization policy was framed considering the decision of this Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. It provided that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure the services of such irregularly appointed, qualified persons, in terms of the statutory requirement of the Rules for the posts, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals.

By the impugned judgment and order, the Punjab and Haryana High Court directed to reformulate the regularization policy and to take a decision to sanction the post in a phased manner.

The Supreme Court, however, noted that since the Union of India/Department has already come up with a regularization policy in consonance with the law laid down by the Supreme Court, which does not apply to the part-time workers who do not work on the sanctioned post, the respondents were not entitled for the benefit of regularization.

The Court explained,

“As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization under the regularization policy dated 30.06.2014.”

The Court took note of the decision in State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 wherein it was held that the status of permanency cannot be granted when there is no post and that mere continuance every year of seasonal work during the period when work was available does not constitute a permanent status unless there exists a post and regularization is done.

Holding that part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held, the Court said that

“Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.”

Concluding that the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so, the Court held,

“The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts.”

[Union of India v. Ilmo Devi, 2021 SCC OnLine SC 899, decided on 07.10.2021]


Counsels

For appellants: ASG Madhvi Divan

For respondents: Advocate Rahul Gupta


*Judgment by: Justice MR Shah

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., 2021 SCC OnLine Mad 2585, decided on 2-07-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: T.R. Ravi, J., held that draft stipulation could not be accepted for the challenge as the same is premature to be assailed by the Public Interest Litigation.

The instant PIL was filed to assail a few regulatory measures initiated by the State of Kerala concerning Lakshadweep Islands. The case of petitioner was that the impugned regulations were motivated by ulterior motive of destroying the traditional life, culture, etc. of the inhabitants of the island. The petitioner alleged that the steps initiated by the State through impugned regulations were illegal and violative of Articles 15, 16, 19 and 21 of the Constitution.

Noticeably, the petitioner never had any direct participation or concern with the people, affairs, or administration of Lakshadweep Island, and had made sweeping allegations that the he was interested about the issues faced by the public at large and was a social worker. The Bench noticed that at the present stage the impugned notifications were at either preliminary stage or drafts were kept in public domain inviting suggestion, views etc., from Islanders. The writ prayer referred to Exts.P3 to P7. Ext.P3 was a Circular issued by the Assistant Director (Disaster Management) stipulating the modalities to be followed by persons or travelers interested in visiting Lakshadweep island. The apprehension expressed by the petitioner on Ext.P3 was held to be misconceived and unavailable as the challenge to that circular had been rejected in by an earlier order.

Ext.P4 was a notification issued eliciting public opinion on the draft regulation appended to the said Notification; the petitioner had assailed the same contending that if the Draft Rules were implemented, nobody could challenge it later, as it gave immense power to the State. The Bench opined that,

“Examination of legality of draft regulation which is in the active consideration of respondent is completely premature.”

Regarding the Exts.P5 and P6 which were related to discontinuation of temporary staff engaged by the administration in a few facilities, the Bench stated that,

“Championing cause concerning service matters by way of PIL is impermissible and also unavailable on the ground that the petitioner lacked the locus to question the legality of Exts.P5 and P6.

Noticing that the Ext.P7 stipulated the procedure to be followed for auctioning livestock in Lakshadweep islands, the Bench held that the petitioner in the name of PIL could not expand the consideration with inchoate knowledge about the inhabitants of the island and the island.  In other words, it was stated that Ext.P8 was also a draft and it could not be treated as regulation that had come into force upon receiving the assent of the President. Hence, every prayer made by the petitioner was unavailable or premature and entertaining the prayers by way of PIL was not warranted as the impugned exhibits were at the stage of confabulation.

Moreover, holding that though the prayers was one for mandamus/certiorari still it had the effect of acting as writ of prohibition against the State from discharging the function or the duty conferred on them by the Constitution. The draft stipulation, therefore, could not be accepted for challenge in the PIL. Accordingly, holding that the petitioner had not satisfied his standing vis-à-vis the affairs of Lakshadweep island to entertain the PIL and that the same was premature. Hence, the same was dismissed.[Sajesh N. T.  v. State of Kerala, WP(C) NO. 11321 of 2021, decided on 15-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. N.Sasidharan Unnithan

For the Respondent: T.P.Sajan

Case BriefsSupreme Court

Supreme Court: The bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ has held that the Courts cannot issue mandamus to frame policy.

The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Also read: COVID 19 a “lame excuse”: Here’s why SC refused to allow extra attempt for UPSC CSE to last attemptees

It was argued before the Court that there is always a change in the upper age limit and number of attempts in different spell and that in the year 2015, the Union of India allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011.

However, as pointed out by the Union of India, there was a substantial change in the pattern of Civil Service (Preliminary) Examination 2011, in the given circumstances, it was considered appropriate to grant one more attempt in Civil Service Examination, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts.

The Court, however, noticed that the said instance cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Article 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance.

“Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.”

It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.  The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

“Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for  the reason that there was  a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.”

[Rachna v. Union of India, 2021 SCC OnLine SC 140, decided on 24.02.2021]


*Judgment by: Justice Ajay Rastogi

Appearances in the matter by

For petitioners: Senior Advocate Shyam Divan,  

For Respondents: Additional Solicitor General S.V.   Raju and advocate Naresh Kaushik

For intervenors: Senior Advocates P.V. Narasimha and Pallav Shishodia

https://www.scconline.com/blog/post/2021/02/24/covid-19-a-lame-excuse-to-take-extra-attempt-to-clear-civil-service-examination-heres-why-sc-refused-to-allow-extra-attempt-for-upse-cse-to-last-attemptees/

Case BriefsSupreme Court

Supreme Court: In the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ has refused the plea and has held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during COVID-19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.”

The Court, however, left it to the Government to exercise its discretion in meeting out the nature of difficulties, if come across in future in dealing with the situation, if required.

What was being claimed?

The petitioners were unable to qualify in their last attempt in the Civil Services (Preliminary) Examination, 2020, held on 4th October 2020 and approached the Court seeking mandamus to the Government to extend one additional attempt to them as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020.

It was argued before the Court that,

“the sudden and strict lockdown due to unprecedented pandemic in March, 2020 had made a  large disruption in the life of the common man and the measures adopted led to difficulties and impediments in the preparation of the Examination 2020 for many aspirants and the Government failed to take any policy decision for the last attemptees before   holding Examination 2020 to enable them to take an appropriate/suitable decision and noticing precedence from the earlier policy of 1st respondent to grant an extra attempt to last attemptees in the event causing widespread hardships left with no choice except to appear in the examination even though they did not have an adequate opportunity and infrastructure and they were left out blinded with uncertainty.”

Why the Court refused the plea of the petitioners?

The Court noticed that what was being prayed “in the first blush appears to be attractive but it lacks legal strength and foundation for various reasons.”

Adequate opportunity

The scheme of Rules 2020 clearly stipulate that the entry age to participate in this competition is 21 years and the exit age for general candidates is 32 years and at least each candidate gets minimum 11 years to participate in the competitive examination, i.e., CSE, in the instant case. For those who claim reservation vertical/ horizontal, they have numerous/unlimited chances and are also entitled for age relaxations.

No discretion with authority to grant relaxations

It may further be noticed that under Rule 6 of Rules 2020, there is a clear mandate that age limit prescribed in no case can be relaxed subject to the relaxations which have been enumerated for various categories. So far as the candidates who appear in the general category and have crossed the age of 32 years, no discretion is left with the authority to grant any relaxation in upper age limit prescribed for the candidates appeared in the instant Examination 2020.

No change in syllabus and additional time to prepare

The syllabus of the preliminary examination has not changed since 2015 and after the Rules 2020 were notified, the notice for the Examination 2020 was published on 12th February 2020 and the scheduled date of the examination was fixed on 31st May, 2020 but because of the unprecedented situation of Covid¬19 pandemic, the Commission took a policy decision to defer the examination and in the changed situation, after there was a relaxation in the lockdown, ultimately on 5th June, 2020 took a decision to hold the examination on 4th October 2020 and, therefore, instead of three   months, the candidates got additional five months (i.e. eight months) to which one ordinarily can  prepare for appearing in  the examination  in terms of the scheme of Rules 2020.

Already a “second chance” given to candidates

Under the scheme of Rules 2020, mere filling up of the form is not sufficient to avail an attempt.  If someone appeared in either of the paper of the preliminary examination, that was considered to be an attempt availed by the candidate and, in the given situation, after the application form was filled, the candidates who wanted to withdraw their application form at the later stage because of the Covid-19 pandemic, the commission took a policy decision to open the window for the second time, which in the ordinary course is not available under the scheme of rules, for the candidates who intended to withdraw their application from 1st August, 2020 to 8th August, 2020.

“Since the   examination was scheduled for 4th October, 2020 only those candidates were left who were mentally prepared to appear and willing to avail an opportunity of appearing in the Examination 2020 and after appearing in the examination, when they could not qualify, it has given a way to the present litigation on the specious ground of Covid-19 pandemic that they were unable to effectively participate in the process of selection which has been initiated by the Commission in holding preliminary examination on 4th October, 2020.”

No special case of petitioners than those who have appeared in various examinations in the year 2020

A  large number of candidates appeared in the various examinations in the year 2020 during COVID-19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other,

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

Can the Court issue mandamus to frame policy?

It was argued before the Court that there is always a change in the upper age limit and number of attempts in different spell and that in the year 2015, the Union of India allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011.

However, as pointed out by the Union of India, there was a substantial change in the pattern of   Civil Service (Preliminary) Examination 2011, in the given circumstances, it was considered appropriate to grant one more attempt in Civil Service Examination, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts.

The Court, however, noticed that the said instance cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Article 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance.

“Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.”

It is within the realm of the executive to take a policy decision based on the   prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.  The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

“Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for  the reason that there was  a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.”

[Rachna v. Union of India, 2021 SCC OnLine SC 140, decided on 24.02.2021]


*Judgment by: Justice Ajay Rastogi

Appearances in the matter by

For petitioners: Senior Advocate Shyam Divan,  

For Respondents: Additional Solicitor General S.V.   Raju and advocate Naresh Kaushik

For intervenors: Senior Advocates P.V. Narasimha and Pallav Shishodia

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma, JJ., while dismissing the present petition said, “The petitioner has not placed on record any material which may suggest that he is a public-spirited person, so as to conclude that the instant petition has been filed in public interest.”

Background

The present Public Interest Litigation was moved to seek a writ of Mandamus, directing respondent to postpone the upcoming election to be held under Himachal Pradesh Panchayati Raj Act, 1994 in the wake of COVID-19 pandemic in the State. The public interest, apparently, seem to be the possibility of an increase in cases in the State due to the said election, which the petitioners aim to avoid through the instant petition.

 Observation

In pursuance of its decision, Court referred the following precedents;

  1. Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295;

“Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants.”

  1. P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734;

“…It is of utmost importance that those who invoke this Court’s jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the Court that he does not rush to Court without undertaking a research, even if he is qualified or competent to raise the

issue.”

  1. ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296;

“… ‘Right’ is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined ‘Right’. In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition, the elements of a “legal right” are that the ‘right’ is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right.”

  1. BALCO Employees Union v. Union of India, (2002) 2 SCC 333;

“Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress, were required to be espoused. PIL was not meant to be adversarial in nature and was to be a co-operative and collaborative effort of the parties and the Court, so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz, ‘litigation in the interest of the public’.”

  1. Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349;

“When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out… Public Interest Litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paise income litigation’. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight errant or poke ones nose into for a probe.”

 Reliance was further placed on, Dr B. Singh v. Union of India, (2004) 3 SCC 363, R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91, Gurpal Singh v. State of Punjab, (2005) 5 SCC 136, Kusum Lata v. Union of India, (2006) 6 SCC 180, Common Cause v. Union of India, (2008) 5 SCC 511.

Decision

Court while rejecting the present petition on lack of merits, enumerated the ten pointers that must be considered before allowing any Public Interest Litigation;

(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

(ii) That the action complained of is palpably illegal or malafide and affects the group of persons who are not in a position to protect their own interest or on account of poverty, incapacity or ignorance;

(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

(iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with malafide intention of vindicating their personal vengeance or grievance;

(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judicial and the democratic set up of the country;

(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which requiredexamination;

(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons of groups with mala fide objective or either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest. [Sailesh Sharma v. State of HP,  2020 SCC OnLine HP 3056, decided on 17-12-2020]


Sakshi Shukla, Editorial Assistant hs put this story together

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal J. dismissed the petition based on settled position of law.

 The facts of the case are such that the respondents 5 to 12 and investigate the matter against them through Special Investigation team. Hence, The question for consideration is whether a writ of mandamus should be issued under Article 226 of the Constitution of India directing the jurisdictional police to register an offence under Section 154(1) of the Criminal Procedure Code i.e. CrPC in a petition filed stating that despite informing the police about the commission of offence, FIR is not being registered against the concerned persons?

The Court thus relied on various judgments to discuss the issue at detail.

1. Lalita Kumari v. Government of U.P., (2014) 2 SCC 1 wherein it was held that

 120.1 Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

  1. a) Matrimonial disputes/family disputes
  2. b) Commercial offences
  3. c) Medical negligence cases
  4. d) Corruption cases
  5. e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

 2. Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 wherein it was held that if a person is aggrieved that his FIR has not been registered by the police or having been registered, proper investigation is not done, the remedy available to the aggrieved person lies to approach the Judicial Magistrate under Section 156(3) of the CrPC, and observed as under: –

“25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/ or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under section 482, Criminal Procedure Code. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under section 154(3) and section 36, Criminal Procedure Code before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under section 156(3).

  1. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under section 154(3), Criminal Procedure Code or other police officer referred to in section 36, Criminal Procedure Code. If despite approaching the Superintendent of Police or the officer referred to in section 36 his grievance still persists, then he can approach a Magistrate under section 156(3), Criminal Procedure Code instead of rushing to the High Court by way of a writ petition or a petition under section 482, Criminal Procedure Code. Moreover, he has a further remedy of filing a criminal complaint under section 200, Criminal Procedure Code. Why then should writ petitions or section 482 petitions be entertained when there are so many alternative remedies?”

 3. Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 wherein it was held that

 “2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.

  1. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.”

 4. Shweta Bhadoria v. State of M.P., 2017 (I) MPJR 247, wherein it was held that if FIR is not registered on the basis of complaint which discloses a cognizable offence, remedy available to the aggrieved person is to take recourse to the provisions under Sections 154(3), 156(3), 190 and 200 of the CrPC, and observed as under: –

 “6. Before parting the conclusion arrived at based on the above discussion and analysis is delineated below for ready reference and convenience:-

(1) Writ of mandamus to compel the police to perform its statutory duty u/s 154 Cr.P.C. can be denied to the informant/victim for non-availing of alternative remedy u/Ss. 154(3), 156 (3), 190 and 200 Cr.P.C., unless the four exceptions enumerated in decision of Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1, come to rescue of the informant/victim.

(2) The verdict of Apex Court in the case of Lalita Kumari v. Government of U.P. & Ors. reported in (2014) 2 SCC 1 does not pertain to issue of entitlement to writ of mandamus for 2017 (I) MPJR 247 compelling the police to perform statutory duty under Section 154 Cr.P.C. without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 Cr.P.C.

(3) Subject to (1) supra the informant/victim after furnishing first information regarding cognizable offence does not become functus officio for seeking writ of mandamus for compelling the police authorities to perform their statutory duty under Section 154 Cr.P.C. in case the FIR is not lodged.

(4) Subject to (1) supra the proposed accused against whom the first information of commission of cognizable offence is made, is not a necessary party to be impleaded in a petition under Article 226 of the Constitution of India seeking issuance of writ of mandamus to compel the police to perform their statutory duty under Section 154 Cr.P.C. ”

 The Court thus held that considering the nature of dispute between the parties and nature of allegation, it would not be expedient to direct Respondents No.1 to 4 to register FIR against Respondents 5 to 12. It was held that the petitioner is at liberty to file complaint under Section 156(3) or complaint under Section 200 of the CrPC.

In view of the above, petition was dismissed.[Abhishek Jain v. State of Chhattisgarh, 2020 SCC OnLine Chh 808, decided on 02-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banjerjee and Indu Malhotra, JJ that the Courts are duty bound to issue a writ of Mandamus for enforcement of a public duty.

“The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.”

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters. Read more

“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

Considering the issue at hand, the Court noticed in case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. It said that in all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.”

“In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.”

Stating that the Court is duty bound to issue a writ of Mandamus for enforcement of a public duty, the bench said that there can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant.

“A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.”

It further said that High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]


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