Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: In a writ petition filed for quashing of the notification dated 21.6.2016, whereby the State Government has amended the Chhattisgarh Secretariat Service Recruitment Rules, 2012 and added a new Clause 6 in Rule 13, the division bench of Arup Kumar Goswami, C.J. and Deepak Kumar Tiwari, J has observed that it is explicit that there is no malafide exercise of powers for extending relaxation by the impugned notification nor there was any occasion to issue conditional appointment order to such candidates who have not passed the Skill test and to give them two years’ time to pass the aforesaid tests. As 36 candidates had fulfilled the requisite conditions earlier, therefore, they were placed above the petitioners in the gradation list. There is no material to show that the State Government has exercised the power of granting relaxation with an oblique or unauthorized purpose.

In the present case, the Department of General Administration had issued an advertisement for 100 posts of AG-III on 24.8.2005. The petitioners had applied for the said post and appeared in the examination conducted by the Chhattisgarh Madhyamik Shiksha Manda, and all the petitioners succeeded in the written examination. As per the terms and conditions of the selection process, the probation period would commence from the next date of passing of the departmental examination, however, in the case of some candidates, the respondent authorities commenced the probation period from the date of their joining, which has caused dissatisfaction and the gradation list has also been affected. Thus, the petitioners prayed for the quashment of the notification dated 21.6.2016, the gradation list with effect from 1.4.2011 and asked for the grant of seniority from the date of their joining.

The Court noted that as per the conditions stipulated in the advertisement dated 24.8.2005, a candidate must pass the computer skill test and Hindi typing examination, but it was found that 61 candidates did not clear these tests, and the above condition was made applicable only for the candidates who have not acquired the certificates of both the tests at the time of appointment and not passed the test at the first instance. Thus, the Court observed that there was no error in fixing the seniority of the candidates, as the petitioners did not pass both the tests, thus the candidates who were qualified at the first instance were placed above them.

The Court took note of the ruling in Hardev Singh v. Union of India, (2011) 10 SCC 121, wherein the Court held that “it is always open to an employer to change its policy in relation to giving promotion to the employees”, thus the Court observed that “it is a settled law that no employee has a right to get promotion, but only has a right to be considered for promotion. It is also well settled that the employer has power to change its policy in giving promotion to its employees”

The Court also took note of the ruling in Rajendra Kumar Agrawal v. State of U.P., (2015) 1 SCC 642, wherein on the issue relating to power of relaxation for filling up the posts by promotion, the Court observed that “we do not find any material to show that the State Government resorted to exercise of power under Regulation 20 for some unauthorised purpose”. It further placed reliance on the ruling in State of U.P. v. Vikash Kumar Singh, (2022) 1 SCC 347, wherein it was observed that “relaxation may be at the discretion of the competent authority, and it cannot be prayed for as a matter of right. If a conscious decision is taken not to grant the relaxation, merely because the Rule permits relaxation, no writ of mandamus can be issued directing the competent authority to grant relaxation in qualifying service”.

Thus, the Court viewed that the petitioners have utterly failed to demonstrate that the impugned notification dated 21.6.2016, wherein the State Government has amended the subject Rules by adding new clause 6 in Rule 13, was issued by the State with an oblique or unauthorized purpose, which shows any arbitrariness on the part of the State. Further, the Court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical as it is not within the domain of the Court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition. The power of relaxation is within the exclusive domain of the State Government and, therefore, impugned notification cannot be held to be bad in law.

Moreover, placing reliance on the decision in Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724, the Court viewed that the petitioners have not placed all the selected candidates as party respondent, thus, the writ petitions suffer from non-joinder of the necessary party, and no relief can be granted to them.

[Vidya Bhushan v. State of Chhattisgarh, 2022 SCC OnLine Chh 1559, decided on 02.09.2022]


Advocates who appeared in this case:

For Petitioners: Senior Advocate Kishore Bhaduri

Advocate Vivek Verma

Advocate Santosh Bharat

For Respondents: Deputy Advocate General HS Ahluwalia

Advocate Animesh Tiwari

Advocate Akhand Pratap Pandey

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a petition filed by association of shopkeepers dealing in sale, purchase and storage of kite flying materials including kites (‘petitioners’) challenging notification dated 10.01.2017 (being Notification no. F. 12(508)/Env. /Ban on Manja/2015/64-81) issued by the Department of Environment, Government of NCT of Delhi, a Division Bench of Vibhu Bakhru and Amit Mahajan, JJ., notes that the impugned notification involves two operative directions and the petitioner’s grievance is in regard to the second direction which proscribes the use of adhesive and thread strengthening material. The said direction is not applicable to the manufacturers or dealers of kite flying thread but is directed to persons engaged in kite flying.

The directions in the impugned notification are as follows:

1. There shall be complete ban on the sale, production, storage, supply, import, and use of kite flying thread made out of nylon, plastic or any other synthetic material including popularly known as “Chinese manjha” and any other kite-flying thread that is sharp or made sharp such as by being laced with glass, metal or any other sharp, materials in the National Capital Territory of Delhi.

2. Kite flying shall be permissible only with a cotton thread, free from any sharp/ metallic/glass components/ adhesives/thread strengthening materials.

The Court noted that the petitioner has no grievance with the first direction. It was further observed that insofar as the petitioner’s grievance regarding the second direction is concerned, the same proscribes the use of adhesive and thread strengthening material. Thus, the said direction is not applicable to the manufacturers or dealers of kite flying thread but is directed to persons engaged in kite flying.

The Court further noted that Respondent 1 has clarified that kite flying will be permitted only from cotton thread, free from any sharp/metallic/glass components/adhesives/thread strengthening materials. This is clearly to ensure that the persons who engage in kite flying use thread that is incapable of causing any injuries. It prohibits them from taking steps to sharpen the kite flying thread by use of sharp metallic or glass components and adhesives. A person flying kites cannot modify the kite flying thread to sharpen the same for the purposes of sparring with fellow sports persons.

The Court opined that insofar as the use of strengthening materials is concerned, the said term is very wide. In the event, the respondents desire to proscribe the strengthening of the thread used for kite flying, it would be necessary for the respondents to clearly specify that dealing above a particular tensile strength of the cotton thread would be prohibited.

The Court finally disposed of the petition as only the first direction is applicable to manufacturers and dealers of thread used for flying kites which is not under challenge.

[Hathkargah Laghu Patang Udyog Samiti v. Government of NCT of Delhi, 2022 SCC OnLine Del 2772, decided on 02-09-2022]


Advocates who appeared in this case :

Mr. Pankaj Bhagat, Advocate, for the petitioner;

Mr. Karn Bhardwaj Advocate, for the respondent.


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

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department.

The instant petition was filed by way of PIL challenging the notification dated 11-08-2016 issued by Commissioner-cum Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, providing that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.

The Court observed that Section 24(1) of the RTI Act is similarly worded as Section 24(4) of the RTI Act, with one difference being that the former relates to ‘intelligence and security organizations, being organizations established by the Central Government’ whereas Section 24(4) of the RTI Act pertains to those established by the State Government. However, in both instances, where information that is sought is in respect of allegations of violations of human rights, prior approval of the Information Commission concerned, Central or State, as the case may be, is required. Thus, the legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.

The Court while rejecting the contention of the opposite party that the information that stands protected from disclosure under Section 8 of the RTI Act will somehow straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act, noted that what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well. Thus, it is not as if such information would be straightway made available to a person seeking such information. In processing the request by an applicant seeking information regarding violation of human rights or involving corruption, regard will be had to Section 8 of the RTI Act. That is the true purport of the non obstante clause at the beginning of Section 8 of the RTI Act. In effect, therefore, there is no conflict between Section 8 on the one hand and the proviso to Section 24(4) of the RTI Act on the other.

Placing reliance on Md. Abid Hussain v. State of Manipur, 2015 SCC OnLine Mani 129 wherein it was observed that “if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Similarly, in respect of the police organizations in the State of Manipur if anybody seeks any information which does not touch upon any of the sensitive and confidential activities undertaken by the police department and if the said information also can be related to the issues of any allegation of corruption or violation of human rights, such information cannot be withheld.”

Further reliance was placed on CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was observed that “Section 8 should not be considered to be fetter on the right to information, but as an equally important provision protecting other public interest essential for the fulfillment and preservation of democratic ideals.”

The Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 24(4) of the RTI act and, by that yardstick, would be unsustainable in law. If under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

The Court thus held “the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification dated 11th August 2016, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24(4) of the RTI Act. Also, information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department, cannot be withheld”

[Subash Mohapatra v. State of Odisha, 2022 SCC OnLine Ori 2014, decided on 20-06-2022]


Advocates who appeared in this case :

Mr. S.P. Das, Advocate, for the petitioner;

Mr. S.N. Das and Mr. Srimanta Das, Advocates, for the opposite parties;

Legislation UpdatesRules & Regulations

On February 05, 2021, the Press Council (Procedure for Notification of Associations of Persons) Rules, 2021 have come into effect.

The Rules provides for Associations of persons to be notified i.e. the Central Government in the case of first Council and the retiring Chairman of the previous Council in the case of any subsequent Council shall, for the purpose of notifying associations of persons invite filing of claims from eligible associations of persons by giving wide publicity in atleast two widely circulated national daily newspapers.

The Rules further provide regarding the eligibility for association of persons that that an association of persons must have been registered under the relevant laws for the time being in force for atleast six years prior to last date of filing of the claims and must be conducting its business continuously thereafter, and shall submit documents in proof thereof, duly certified by the competent authority.

As per the Rules, the claims filed by associations of persons under rule 3 shall be scrutinized by a Scrutiny Committee consisting of three persons to be nominated by the Chairman from amongst members of the Council who are not associated in any manner with any of such claimant associations and shall submit its report to the Council.

Legislation UpdatesNotifications

S.O. 4638(E)— In exercise of the powers conferred by Section 10A of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), the Central Government hereby notifies further period of three months from the 25-12-2020, for the purposes of the said section.


Ministry of Corporate Affairs

[Notification dt. 22-12-2020]

Hot Off The PressNews

All India Bar Examination- XIV will be held on 25-08-2019. The significant dates have been notified on the official website of AIBE – All India Bar Examination.

About:

The AIBE will assess skills at a basic level, and is intended to set a minimum benchmark for admission to the practice of law; it addresses a candidate’s analytical abilities and understanding the basic knowledge of the law. After passing the examination candidate will be awarded “Certificate of Practice” by the Bar Council of India.

IMPORTANT DATES FOR AIBE-XIV

  • 10-06-2019 – Online Registrations Begins.
  • 12-08-2019 – Last date for Online Registrations.
  • 21-08-019 – Release of Admit Card Online.
  • 25-08-2019 – All India Bar Examination-XIV in various cities across India.

All India Bar Examination

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, JJ. dismissed a civil writ petition challenging a notification issued by the Travancore Devaswom Board (TDB) in relation to appointment of the head priest of  Sabarimala temple.

Petitioner, one of the applicants for the post of ‘Melshanthi’ (head-priest) of the Sabarimala temple, filed the instant petition challenging a notification issued by TDB whereby only a ‘Santhi’ (priest) having twelve years experience, out of which ten years being spent continuously serving as a Melsanthi of a temple, would alone be eligible for being selected as the Melsanthi of the Sabarimala temple.

The petitioner contended that the stipulation mandating continuous ten years service as Melshanthi amounts to an illegal classification among the Santhis since it has no rationale nexus to the objective sought to be achieved by such classification.

The court held that the impugned notification was not a classification but it prescribed a specific qualification to identify the best and most suitable candidate. All the Melsanthis were Santhis and therefore, what the notification sought to do was not to classify them into two categories, but to prescribe an additional qualification for the aspiring Santhis, so that TDB could select the best candidate.

Relying on the principles relating to fixing and stipulation of the qualifications of employees enumerated by the Supreme Court in J. Rangaswamy v. Government of A.P., (1990) 1 SCC 288, the High Court held that it was completely proscribed from entering into the said area unless the petitioner showed that TDB’s prescriptions were illegal and void ab initio. Thus, the petition was dismissed for being without merits and holding that the issue in question fell within the realm of policy-creation by the appointing authority – TDB.[Rajesh J. Potty v. Travancore Devaswom Board,2018 SCC OnLine Ker 4115, decided on 12-10-2018]

Hot Off The PressNews

Supreme Court: The notification proposing a social media hub that could act like a monitor regarding the online activities of the citizens has been turned down by Centre. The bench comprising of CJ Dipak Misra and AM Khanwilkar and Dr DY Chandrachud was informed by AG KK Venugopal that the stated notification about “social media hub” was being withdrawn.

The move of creating a social media hub was leading towards the creation of a surveillance state. The petition concerning the same was file by TMC MLA Mahua Moitra in which she stated that the government had issued a Request for Proposal (RFP). The tender will be opened on August 20 for a software that would do 360-degree monitoring on all social media platforms.

Therefore, the bench had sought AG KK Venugopal’s assistance for the same in Mahua Moitra v. Union of India, 2018 SCC OnLine SC 697, for which today the Supreme Court was told that the notification is being withdrawn by the Centre.

[Source: PTI]

Case BriefsHigh Courts

Madras High Court: The Court recently addressed a writ petition filed under Article 226 of the Constitution wherein the petitioners asked for quashment of the impugned order and for waiver of the detention charges incurred on the subject goods on the basis of Regulation 6(1) of the Handling of Cargo in Customs Areas Regulations, 2009.

The facts of the case are that the petitioner had filed this petition challenging the original order which was passed by the respondent, in respect of an import made by the petitioner on a certain date for clearance of the imported goods under a certain Customs Tariff heading with a specific IGST rate assigned to it. The petitioner contended that after carrying out a self- assessment of the duty, as specified under Section 17(1) of the Customs Act, 1962, the assessable value came up to a different amount of money from the one that was pronounced by the petitioner. This was because the petitioner argued that to avail the concessional duty, the IGST rate needed to be calculated at 0% based on a previous notification. The respondent argued that the rate had to be calculated at a 5% rate on the basis of a different notification. The respondent thus was of the prima facie view that the exemption claimed by the petitioner for the imported goods did not appear to be correct.

The Court noticed that the respondent while passing the impugned order did not restrict himself only to the life consignment covered under Bill of Entry in question but also in respect of earlier import in Bill of Entry and proceeded to invoke his powers under Section 111(m) of the Customs Act, in the sense that the imported goods were liable to be confiscated.

The Bemch of T. S. Sivagnanam J., held that the respondent could not invoke Section 111(m) of the Customs Act as there appeared to be no allegation that the goods did not correspond in respect of the value or in any other particular with the entry made under the Act. In the impugned order, the respondent had accepted that there was no dispute in the classification of the goods. But the Court pointed out that no adjudication was needed on this matter since the petitioner only sought liberty to approach the appellate authority on this matter. Hence, along with granting liberty to file an appeal, the Court also directed the petitioner to pay the differential duty amount in respect of the earlier Bill of Entry and the duty on the Bill of Entry in question that the respondent had laid down following which the respondent would have to provisionally release the cargo within a period of seven days from the date of remittance for both Bills of Entry. [Priyanka Enterprises v. The Joint Commissioner of Customs; 2017 SCC OnLine Mad 9942, order dated 23.11.2017]