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.

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]

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

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]


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Case BriefsHigh Courts

Uttaranchal High Court: A writ petition was contemplated by Ramesh Ranganathan, CJ and Alok Kumar Verma, J. where the petitioner sought a writ of mandamus to command the respondents to consider the petitioner’s grievances and to consider linking the Voter ID Card of every valid adult voter with his Aadhaar Card, further it was sought that Voter ID card to be treated as valid document for casting vote in every election and to have a common list for every election either for Parliament, Assembly or for Local Bodies and Panchayats.

It was addressed in the Court that Article 243C in Part IX of the Constitution of India, related to the composition of Panchayats and under Clause (1), and the State Legislature makes provision for the composition of Panchayats. Article 243 C(2) stipulated that all seats in Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.

Shobhit Saharia, learned counsel for the Election Commission of India, contended that no relief was sought against the Election Commission of India, the petitioner had, in effect, sought the electoral roll, prepared by the Election Commission of India under the Representation of the People Act, 1951, to form the basis for preparation of the electoral rolls for Panchayati Raj Institutions and Urban Local Bodies in the State of Uttarakhand. It was unnecessary to dwell on this aspect any further since the preparation of an electoral roll was prescribed in the State of Uttarakhand by law made by the State Legislature called the “Uttarakhand Panchayati Raj Act, 2016

It was further highlighted that provisions, similar to Article 243K in Part IX of the Constitution of India, were also prescribed for Urban Local Bodies under Article 243 ZA in Part IXA of the Constitution of India. In terms of the provisions of the Panchayati Raj Act, 2016, a separate electoral roll was required to be prepared for Panchayats in the State. The mode and manner in which these electoral rolls were to be prepared were also stipulated.

The Court noted that it was up to the State Legislature to prescribe by law, that the electoral rolls prepared for Parliamentary and Legislative Assemble Elections should be the basis of for elections to Panchayat Raj Institution and Urban Local Bodies. Court further observed that it was out of their purview to decide and direct such issues and was totally the wisdom of the legislature. Court appreciated the intentions of the petitioner that he wanted to ensure that all those who had the right to vote were permitted to exercise the franchise and arbitrary deletion of their names from the electoral rolls was avoided.

It was held that the power of superintendence conferred on Election Commission was similar to the power conferred on the State Legislature. The Court observed the scope of Article 324 of the Constitution of India, in A.C Jose v. Sivan Pillai, (1984) 2 SCC 656,  where it was held that, “when there is no Parliamentary Legislation, or Rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections; and where the Act or the Rules are silent, the Commission has plenary powers, under Article 324 of the Constitution of India, to give any direction in respect of the conduct of elections.”

Hence the petition was dismissed as the representation was already made before the Election Commission.[Ravindra Jugran v. State Election Commission, 2019 SCC OnLine Utt 913, decided on 12-09-2019]

Case BriefsHigh Courts

Allahabad High Court: Rajesh Singh Chauhan, J. while allowing the writ petition issued a writ in the nature of mandamus so as to command the opposite parties to reconsider the claim of the petitioner.

In the instant case, Nikhat Jahan, the petitioner’s request for appointment under Dying-in-Harness Rules was denied for the reason that she is a ‘divorced daughter’. Her father died on 19-6-2016.

She submitted that earlier her claim was rejected on 7-2-2017 for the reason that ‘divorced daughter’ does not come within the definition of “family” but such order was set aside by this Court vide judgment and order on 9-2-2018 in Service Single No.4418 of 2017 with the direction to the competent authority to consider the case of the petitioner afresh in view of the settled proposition of law, which was settled recently.

When the petitioner produced a certified copy of the aforesaid order, her claim was rejected in view of the dictum of the Supreme Court of 29-7-2016 passed in a special leave to appeal. To this, the petitioner submitted that the aforesaid dictum does not apply to the instant case.

The Court referred to Kusum Devi v. State of U.P., 2009 SCC OnLine All 1941  It was held that a divorced daughter is entitled to compassionate appointment. “A divorced daughter, if dependent upon her father, cannot be excluded and has to be included within the meaning of the word ”family’ since such a ”divorced daughter’, is dependent upon her father, has to be treated at par with an unmarried daughter or widowed daughter as all of them continue to be the liability of their father as member of the family of their ”father’.” The same was held in State of U.P. v. Jayanti Devi, passed in Special Appeal Defective No. 1298 of 2017.

In the instant case expression “Unmarried” used in Rule 2(c) of U.P. Recruitment of Dependant of Government Servants Dying in Harness Rules, 1974, was considered. Normal and common meaning of expression “Unmarried” is “not married” or “Single”. In the Wharton’s Law Lexicon 15th Edition, the expression “Unmarried” has been defined as: – “Unmarried, is a term of flexible meaning; prima facie it means ‘never having been married’.

As per Merriam Webster’s Collegiate Dictionary, 11th edition, “unmarried” means ‘not now or previously married’ or ‘being divorced or widowed’. In Stroud’s Judicial Dictionary of Words and Phrases, 7th edition, the primary meaning of ‘unmarried’ is ‘never having been married’ or ‘without ever having been married’ and the secondary meaning is ‘having no spouse living at the material time’. It is a word of flexible meaning, and slight circumstances could be sufficient to give the word its secondary meaning.

From the above explanations, it is clear that the term ‘Unmarried’ has flexibility in its meaning and it does not only mean “not married” or “single” or “never married”, it also means “not married on relevant date “or “widow” or “widower” or “divorcee”.

In context of the present case, the Court observed that a widow remains to be part of her husband’s family even after the death of such husband, whereas upon the marriage being dissolved, the divorcee daughter does not continue to be a part of the family of her divorced husband and would continue to remain single unless she remarries.

Further, under Rule 2(c) of Rules of 1974, there is no express exclusion that a “divorced daughter” is not entitled to appointment under the Rules.

Therefore, the Court directed the opposite parties to reconsider the claim of the petitioner for compassionate appointment strictly in terms of judgment and order of 03.01.2019 passed by this Court in Special Appeal Defective No. 673 of 2018; State of U.P. v. Noopur Srivastava, with the expedition, preferably within a period of one month from the date of production of a certified copy of the order.[Nikhat Jahan v. State of U.P., 2019 SCC OnLine All 3036, decided on 21-08-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJM and Alok Kumar Verma, J. dismissed a writ petition where the petitioner sought mandamus against the respondent, to direct him to approve appointment of the petitioner as Principal in compliance with the amended second proviso to Rule (2)(1) of the Uttarakhand School Education Council Regulations, 2009.

The said petitioner had earlier filed a writ in the said Court on the same facts and relief to which a Division Bench took note of the contentions and had held that they were not inclined to express any opinion as to whether the petitioner must be deemed to have been appointed as a Principal, merely because the proposal made by the Committee of Management, for his appointment as a Principal, was not rejected within one month of its receipt by the Additional Director, more so as the writ petition was disposed of, with the consent of the parties. The writ petition was disposed of directing the Additional Director, School Education to pass orders on the proposal submitted by the Committee of Management, for the appointment of the petitioner as the Principal.

The counsel for the petitioner, Kartikey Hari Gupta submitted that the petitioner made representation to the Additional Director, who subsequently disposed petitioners to claim and held that promotion of the applicant to the post of downgrade Principal was not possible in the light of the High Court order, and the provisions of the Uttaranchal School Education Act, 2006. Further it was submitted that the Additional Director took note of the order passed by a learned Single Judge, in earlier writ petition of 2016 and observed that the High Court had clarified, in the said judgment, that selection procedure, provided for the post of Principal in the Uttarakhand School Education Act, 2006, and arrangement of downgrade principal provided through amendment in the 2009 Regulations, were contradictory to each other; and the Court gave primacy to the 2006 Act over the amendment to the 2009 Regulations, it had quashed the Regulations, and had suggested to the Government to carry out appropriate amendment in tune with Section 36(2) of the original Act, which was in regard to direct recruitment of Principal.

Kartikey Hari Gupta, counsel for the petitioner, drew attention to the 2018 amendment to the 2009 Regulations, where under, after the proviso to Regulation 2(1) of the Uttarakhand School Education Council Regulations, 2009, it was laid down that, likewise for promotion to the post of Principal at Inter Level, such regular senior-most teachers of the concerned school, who were eligible as per Schedule “A” of Chapter 2 of the Regulations, when they got selected  for grade after 10 years of ordinary grade, and if their work and conduct was satisfactory, they would then be promoted to the post of downgrade Principal, while giving them downgrade pay-scale of Principal; and, after completing 5 years in downgrade, the pay-scale of the Principal would be allowed.

On the contrary, the respondent had submitted that High Court had already quashed the amendment, as the petitioner had applied for the post on the basis of the second amendment, it was noted that the second amendment was allegedly passed without proper procedure and without changing the original Act. Hence the promotion of the applicant was not possible.

The Court observed that the learned Single Judge had already opined that there was a conflict between the Act and Regulations, and in such circumstances, the Act would prevail. It was also held by the Single Judge, “it was always open to the State Government, in its wisdom, to amend Section 36(2) of the Act which talked about direct recruitment; and the State Government had not taken recourse to amend the Act, but had amended the Regulations in contradiction to the Act.”

It was further observed that presumption regarding the constitutionality of subordinate legislation also, in the absence of a specific challenge thereto; it was not to strike down a Regulation on the premise that the Regulations fall foul of the provisions of the Parent Act. In the absence of any challenge to its validity, the Regulations made under the Act must be read harmoniously with the provisions of the Act. Hence, the order by the learned Single Judge was held to be a bad law and was set aside as had not examined the scope and purport of Section 36(2) of the Act, and had proceeded on the premise that Section 36(2) of the Act requires the post of the Head of the Institution to be filled up only by way of direct recruitment.[Somprakash v. State of Uttarakhand, 2019 SCC OnLine Utt 648, decided on 02-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The instant writ petition was entertained by a Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J., and the interesting issue discussed was related to  seeking mandamus against the respondent to ‘hold that Schedule-I of the Code of Criminal Procedure, 1973, qua Sections 326, 327, 363A, 377, 382, 386, 389, 392, 394, 409, 455, 458, 467, 493, and 495 of the Penal Code, 1860, were illegal, as they mandated trial by the Magistrate, who otherwise did not have the competence to award the prescribed sentence, and to declare these provisions in the Code of Criminal Procedure, 1973, as ultra-vires.

It was contended by the petitioner to direct the respondents to bring appropriate amendments to the Schedule, hence, to make appropriate trial by the Court of Session instead of Magistrate, Ist Class. Another contention forwarded by the petitioner was related to issue mandamus against the Legislature to amend law.

The Court clearly held that it was a well-settled law that no mandamus could be issued to the Legislature; hence the prayer of the petitioner was disregarded. The Court stated that the petitioner had not explained how the said Schedule violated any provision of the Constitution of India. It was noticed that, “The Constitutional validity of plenary legislation can only be examined in the context of lack of legislative competence, or for violation of any other provision of the Constitution of India. The power to enact the Criminal Procedure Code has been conferred under Entry 2 of List III of the Constitution of India. Since both Parliament and the State Legislatures have the power to make or amend the Criminal Procedure Code under Entry 2 of List III, the Parliament cannot be said to suffer from lack of legislative competence in making the said Law.”

The point of law discussed by the Court was that Section 325 of the CrPC prescribed the procedure when a Magistrate cannot pass a sentence sufficiently severe under his jurisdiction and it required him to forward the record with his opinion, and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he was subordinate; however, there was no provision conferring power on the Chief Judicial Magistrate to refer the matter to the District & Sessions Judge in cases where he lacked the power to impose the sentence prescribed under the Penal Code. Hence the answer cited was referred to Section 323 CrPC, where if in any inquiry into an offence or a trial before a Magistrate, appeared to him, at any stage of the proceedings before signing judgment, that the case was one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained; and, thereupon, the provisions of Chapter XVIII applied to commitment so made.

Hence, the Court found that the apprehension expressed by the petitioner was wholly misconceived and dismissed the petition as power was conferred under Section 323 CrPC, on the magistrate to refer the matter to Court of Session, if he was satisfied that the offence was only to be tried by Court of Session.[Shilpi Lawrence v. Union of India, 2019 SCC OnLine Utt 634, decided on 04-07-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Alok Singh and N.S. Dhanik, JJ. dismissed a writ petition filed by the 66-year-old petitioner, who sought mandamus against respondent authority to provide police protection to her as respondents threatened her.

The petitioner contended that her estranged son and daughter-in-law were disowned by the husband of the petitioner from all the movable and immovable properties by way of public notice. She further alleged that she had an apprehension of being killed by the respondents.

The Deputy Advocate General for the State argued that the present petition was not maintainable before this Court, in as much as the petitioner had efficacious and alternative remedy; and in view of the law laid down by the Supreme Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and Lata Singh v. State of U.P., (2006) 5 SCC 475, the petitioner cannot be granted police protection because she had an efficacious and alternative remedy. It was further contended that the petitioner should have registered an FIR if she apprehended any sort of threat to her life. The counsel submitted that the petitioner may approach the Superintendent of Police under Section 154(3) CrPC by an application in writing; even if that did not give any satisfactory result in the sense that either the FIR was not registered, or that even after registering it no proper investigation was held, it was open to the petitioner to file an application under Section 156 (3) CrPC before the Magistrate concerned. If an application under Section 156(3) CrPC was filed before the Magistrate, the Magistrate would direct the FIR to be registered and also a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.

The Court held that, it was not a case where the Senior Superintendent of Police concerned had to be directed to provide necessary protection to the petitioner and the petitioner was not permitted to abandon or bypass that remedy and invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, when she had an efficacious and adequate remedy open to her.[Sahjahan Begum v. State of Uttarakhand, 2019 SCC OnLine Utt 567, decided on 08-07-2019]

Case BriefsHigh Courts

Madras High Court: Pushpa Sathyanaryana, J. while hearing a petition praying for mandamus against an insurance company, directed the said insurance company to honour the claim of petitioner in respect of her insurance policy.

Petitioner and her husband had applied for a home loan for which they were to be sanctioned a sum of Rs 35,00,000. The loan policy also covered critical illness diagnosis cost. Petitioner’s husband suffered a massive cardiac arrest and died. Petitioner filed a claim petition seeking claim amount but it was denied on grounds that her husband’s death was not covered under major medical illness. Aggrieved thereby, the instant petition was filed.

Learned counsel for the petitioner S.R. Raghunathan argued that the respondent’s argument which stated that massive cardiac arrest did not come under the purview of major medical diagnosis was absolutely false. They were just trying to save themselves from providing rightful insurance claims. He relied on the case of LIC of India v. Asha Goel, (2001) 2 SCC 160 to buttress his argument.

Learned counsels for the respondents S. Manohar and K.J. Parthasarathy contended that the respondent company was not “State” under Article 12 of Constitution of India and therefore the writ petition was not maintainable under law. Secondly, they alleged that the cause of death did not fall within the covered claims.

Issue: Whether a writ petition is maintainable to enforce a contractual right of an insurance claim?

The Court opined that Article 226 of the Constitution of India could be invoked not only for infringement of fundamental rights but also for any other purpose. Thus, the question that required determination was whether private bodies performing public duties can be brought within the purview of judicial review. It considered the judgment in LIC v. Escorts Ltd., (1986) 1 SCC 264 where the Supreme Court while considering activities of LIC, which comes under the purview of public law, observed that “a Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field…. The question must be decided in each case with reference to the particular action”.

The Court remarked that notwithstanding the law on the subject, in reality, there is no parity and balance between the insurer and insured. In many cases, the individual has no legal knowledge about the ambiguous language used in the company’s policy with an intention to waive them from the liability to pay the injured on happening of an agreed event. Many times the companies willfully neglect reimbursing the insured, who instead of getting their amount from the company have to pay the Courts for getting their rights enforced. The case on hand is the classic example of the same.”

 It was opined that the “malpractice and arbitrary use of power by the insurance companies must be restrained by incorporating provisions to reduce the chances of ambiguity at a later date. Or else, the insurer would continue to take advantage of the insured by falsely repudiating the claims made by the insured”.

It was noted that as per Section 3 of the policy in question the medical event of ‘Myocardial Infarction’ was covered under the Policy. Though the cardiac arrest suffered by the husband of the petitioner fell under the abovesaid medical event, the respondents were denying the rightful claim to the insurance cover. The Court asked for a medical report to clear the doubt whether massive cardiac arrest comes under major medical diagnosis, and after a perusal of the said report, it was concluded that the cause of death of the insured was well within the defined medical events prescribed in the policy.

As a concluding remark, the Court urged that insurance companies must focus on educating their customers about the financial backing and this must be done by issuing magazines, booklets and visual contents.

The petition was allowed and the respondent company was directed to honour the claim made by the petitioner without insisting for any further documentation or particulars, in accordance with the law.[Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Ltd., 2019 SCC OnLine Mad 2246, decided on 06-06-2019]