Case BriefsSupreme Court

Supreme Court: In a petition filed for seeking directions that till a new chairperson of the Intellectual Property Appellate Board (“IPAB”), is appointed, the incumbent should continue to function as Chairperson, the 3-Judge Bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat*, JJ opined that,

“The amendments brought about through S. 184 of the Finance Act, 2017, in terms of the maximum age up to which any Member or Chairperson can hold office in a Tribunal could not apply in the case of the Board because the Rules of 2017 had fixed the tenure limits of chairpersons and members of tribunals, including that of the chairperson of the board.”

Factual Matrix

In the instant case, the applicant had sought extension of the term of the incumbent Chairperson of IPAB stating that S. 184 of the Finance Act, 2017, had prescribed the term of office and the conditions of service of Chairperson and members of various tribunals including that of the Board. S. 161 of the Finance Act inserted Section 89A to the Trade Mark Act which stipulated that the term of office of appointments to the board after the date of commencement of the Finance Act would be governed by the provisions of the Section 184 of the said Finance Act. The outer age limit of the chairperson of the board was 70 years, in terms of S. 184.

The applicant contended that though Section 86 of Trade Mark Act had prescribed the outer age limit as 65 years, that was over borne by the provisions of section 89A of the Act, which had stated that the terms and conditions hitherto applicable would no longer be so and that in matters of conditions of service and tenure of appointment, the provisions of section 184 of the Finance Act would apply.

It was argued by the applicant that taking into consideration the workload of the board, it was absolutely essential that it was headed by a properly qualified chairperson. The applicant particularly relied on Section 84(2) of the Trade Mark Act and urged that there could be no bench without a judicial member.

Analysis and Decision

Reliance was placed on Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 , by the Court wherein after pronouncing that the 2017 Rules were unsustainable, and quashing them, with a direction to the Central Government to frame new Rules, the Constitution Bench  also directed as follows:

Interim relief

  1. As the Tribunal, Appellate Tribunal and Other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2017 have been struck down and several directions have been issued vide the majority judgment for framing of fresh set of rules, we, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017.”

The Bench further noticed that on 20-03-018 the Supreme Court had clarified a previous order dated 09-02-2018 in Kudrat Sandhu v. Union of India 2021 SCC OnLine SC 89 as follows:

“(iii) The tenure of the Chairperson and the Judicial/Administrative/Expert/Technical Members of all the Tribunals shall be for a period of five years or the maximum age that was fixed/determined under the old Acts and Rules;”

Another contention raised by the applicant was that no member can function as a Chairperson, as none of the existing members were judicial members, but were technical members. The Bench observed, S. 84 (2) of the Trade Mark Act no doubt had stated that a bench of the board should consist of a judicial and a technical member. However, it was “subject to other provisions” of the Trade Mark Act.

Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, significantly, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson.”

The relevant provisions of S. 85 of Trade Mark Act revealed that there was no bar for a technical member to be appointed as a regular chairperson, provided she or he had for “at least two years, held the office of a Vice-Chairperson”. In fact, the incumbent five technical members all hold legal qualifications (three of them holding masters in law, including one who had post-doctoral qualification). Four of these incumbent members were practising advocates in specialized fields of intellectual property (trademarks, and copyright) and one technical member (patents) had experience in the Patent Office.

“These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified.”

Therefore, the contention that the technical members, in their position at the board as of now, could not function without a chairperson, was held unsustainable. Also the argument that the incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew was declared insubstantial and uncountenanced.

[The International Association for Protection of Intellectual Property v. Union of India, 2021 SCC OnLine SC 89, decided on 12-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice S. Ravindra Bhat

Know Thy Judge| Justice S. Ravindra Bhat

Case BriefsSupreme Court

Supreme Court: In the case relating to seniority of teachers appointed with Shri Samarth Shikshan Sansthan, the 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has held that a person who neither a graduate nor a trained teacher at the time of his initial appointment cannot claim seniority over a someone possessing graduation and B.Ed degrees.

Background

The appellant, Madhavi, was appointed with Shri Samarth Shikshan Sansthan on a temporary basis on 16.7.1985. At that time, she possessed graduation and B.Ed. degrees and was accordingly placed in Category ‘C’ of Schedule ‘F’ of The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. However, she was not appointed against regular vacancy. Chagan was thereafter appointed as Assistant Teacher at the School on 1.8.1985 for teaching the students of Vth to VIIth standards, possessing qualification of Senior Secondary Certificate and Diploma in Education at the time of appointment. He was placed in Category ‘E’ of Schedule ‘F’ of the Rules. Both Madhavi and Chagan were appointed for teaching the same section. Later, Chagan acquired B.Sc. degree and entered Category ‘D’ of Schedule ‘F’ of the Rules on 21.2.1997. Chagan then obtained B.Ed. degree in the year 1999 and was thus placed in Category ‘C’ of Schedule ‘F’.

When Madhavi was appointed as the Head Master of the School, Chagan claimed that he was appointed on regular basis on 1.8.1985 as against Madhavi who was appointed against a temporary vacancy on 16.7.1985. Therefore, he is senior to her. Chagan claimed seniority as trained graduate w.e.f. 1.8.1985 in terms of Rule 6 read with Rule 2(1)(j) of the Rules. It was contended that the post of Secondary Teacher was not vacant in the year 1985, therefore, Madhavi was illegally appointed as Primary Teacher which is Category ‘E’ post whereas he was appointed on 1.8.1985 and thus, he is senior to Madhavi.

Analysis

The Court noticed that Chagan was only having senior secondary certificate and a Diploma in Education at the time of his appointment. With such qualifications, he was an under-graduate teacher falling in Category II(2)(i) or (ii) of Schedule ‘B’ of the Rules. Such teacher is assigned Category ‘E’ as per Schedule ‘F’. Clause II(1) of Schedule ‘B’, is in respect of teachers possessing graduate degrees. When Chagan qualified B.Sc. in 1997, he climbed the ladder and became part of Category ‘D’ and later on after acquiring B.Ed. degree, he entered Category ‘C’, whereas Madhavi was already in Category ‘C’ since the date of their appointment being graduates and degree holders in teaching i.e. B.Ed. Though she was appointed against a regular vacancy on 24.11.1988.

Explaining the Scheme of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and the Rules, the Court noticed that primary and secondary schools have been treated differently in the same set of Rules. Rule 2(e) has entrusted the duties of Education Officer or Education Inspector in relation to secondary or higher secondary school, whereas, the Education Officer in respect of a primary school is Education Officer or the Administrative Officer of the Municipal Corporation or a Municipal School Board. Similarly, Rule 3 prescribes different rules for appointment of a head of a primary school and the head of the Secondary School. Part I of Schedule ‘B’ prescribes qualifications for the appointment of teachers in Primary School, whereas Part II prescribes qualification for appointment of teachers in Secondary School and Junior colleges of Education. Chagan had joined Secondary School as an untrained undergraduate teacher. He therefore falls in Clause 2 of Part II of Schedule ‘B’. Similarly, Schedule ‘F’ deals with rule of seniority having different categories. Category ‘E’ is the lower-most level of the ladder which can be upgraded with improvements in the qualifications of the teachers.

Hence, the Court held that the High Court failed to appreciate the distinction between Clause 1 and Clause 2 of Schedule ‘F’ of the Rules.

It was, hence, concluded that Madhavi’s appointment was in accordance with Section 5(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. However, Chagan could not be treated to be part of Category ‘C’ from the date of his initial appointment i.e. 1.8.1985 as he was neither a graduate nor a trained teacher when he was appointed. Also, Chagan was not even a trained teacher on the date of his appointment and thus cannot claim seniority on such ground from the date of his initial appointment.

[Madhavi v. Chagan, 2020 SCC OnLine SC 1007, decided on 09.12.2020]

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ had held that it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post, not the Courts.

“Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts.”

In the present case, applications were invited by the appellant Bank for the post of Peon by publishing an advertisement in the local newspaper. The eligibility criteria mentioned in the said advertisement was that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English. It specifically provided that a candidate should not be a Graduate as on 01.01.2016

The respondent herein – original writ petitioner, based on the information provided by him in his application, was appointed. While scrutiny of the documents was going on, the appellant Bank came to know about a graduate certificate showing that the respondent was a graduate since 2014.  Thus, it was noticed and found that he was not eligible as per the advertisement and the Circulars and that the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Therefore, his candidature was cancelled and he was not allowed to join the bank in subordinate cadre. The High Court of Orissa, however, directed the appellant Bank to allow the respondent to discharge his duties as a Peon as per the appointment order.

The Bank submitted that considering the nature of the post – Peon/subordinate cadre, a conscious decision was taken by it that a candidate having the qualification of graduation shall not be eligible and the candidate who passed in 12th standard or its equivalent with basic reading/writing knowledge of English shall only be eligible. Hence, unless it is found to be most arbitrary, the same cannot be the subject-matter of a judicial review.

The Court held that prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement.

Considering the facts and circumstances of the case at hand, the Court noticed that in the application, the respondent did not disclose that he is a graduate from 2014 and only mentioned his qualification as 12th pass. Therefore, the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank.

The Court further held that once having participated in the recruitment process as per the advertisement, thereafter it is not open for him to contend that acquisition of higher qualification cannot be a disqualification and that too when he never challenged the eligibility criteria/educational qualification mentioned in the advertisement.

[Chief Manager, Punjab National Bank v. Anit Kumar Das, 2020 SCC OnLine SC 897, decided on 03.11.2020]


*Justice MR Shah has penned this judgment 

Case BriefsSupreme Court

Supreme Court: In a case where the family of a man was awarded invalid pension by the Tribunal despite of the fact that the man had not completed the stipulated period of employment as per the Orissa Civil Services (Pension) Rules, 1992, the 3-judge bench of R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ has held that the qualifying years of service cannot be ignored for invalid pension. It said,

“The condition of qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do not appeal to us.”

In the case at hand, the Odisha Administrative Tribunal had held that the applicant’s husband was entitled to invalid pension under Rule 39 of the Pension Rules and accordingly, the authorities were directed to sanction the invalid pension for the applicant’s husband and after his death, to settle the family pension for the applicant, after regularizing the services of the deceased employee.

It was, hence, argued before the Court that the applicant’s husband cannot be granted invalid pension under Rule 39 as the provision has to be conjointly read with Rule 47 and Rule 56 of the Pension Rules which specify the qualifying service of ten years and also the consequences for those who do not satisfy the eligibility criterion for qualifying service. It was also brought to the Court’s notice that the gratuity and other benefits and the compassionate appointment was accepted by the applicant without raising any additional claim towards invalid pension for her deceased husband.

Accepting the aforementioned submissions, the Court held,

“An employee becomes entitled to pension by stint of his long service for the employer and, therefore, it should be seen as a reward for toiling hard and long for the employer. The Pension Rules provide for a qualifying service of 10 years for such entitlement. When the question arises as to how certain provisions of the Pension Rules are to be understood, it would be appropriate to read the provision in its context which would mean reading the statute as a whole.”

Noticing that in the present case the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules, the Court held,

“The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules.”

Also considering that fact that the applicant never prayed for invalid pension for her husband and yet the Tribunal as well as the High Court granted her the unclaimed relief, the Court said,

“Such additional munificence, in addition to the job provided to the first respondent under the Rehabilitation Assistance Scheme for the sustenance of the deceased’s family, in our view, was unwarranted and the impugned order cannot be sustained.”

[State of Orissa v. Maju Naik, 2019 SCC OnLine SC 1548, decided on 04.12.2019]

Hot Off The PressNews

In a move to benefit skilled persons from economically underprivileged sections of the society, the Ministry of Road Transport and Highways has decided to remove the requirement of minimum educational qualification for driving a transport vehicle.

As per the rule, Under Rule 8 of the Central Motor Vehicle Rules, 1989, a transport vehicle driver needs to have passed class 8.

However, there are large numbers of unemployed persons especially in rural areas of the country, who may not have a formal education, but are otherwise literate and skilled.

In a recent meeting in the Transport Ministry, the Haryana government had requested for waiver of the educational qualification condition for drivers from the economically backward Mewat region where the population is dependent for livelihood on low-income earning pursuits including driving. The state government had submitted that many people in the region possess the required skill but not the required educational qualification, and were finding it difficult to obtain driving license.  Hence it was felt that driving being more a matter of skill than of educational competence, the condition of minimum educational qualification acts as a hindrance for the otherwise eligible unemployed youth. The removal of this requirement will open up employment opportunities for a large number of unemployed persons, especially the youth in the country.

However, while removing the requirement of a minimum educational qualification, the Ministry has strongly emphasized upon training and skill testing of drivers so that road safety is not compromised in any way. Anyone applying for a driving license will have to mandatorily pass a stringent skill test. The Ministry has emphasized that training imparted by a school or establishment as mentioned in the the Motor Vehicles Act, 1988 should ensure that the driver can read signs and perform logistical duty such as maintenance of driver logs, inspection of trucks and trailers, submission of pre-trip and post-trip records, determination of discrepancies in paperwork, effective communication to report safety hazards. 

The Ministry had already proposed the removal of the requirement for educational qualification in the Motor Vehicles (Amendment) Bill that got passed by the previous Lok Sabha. The subject was also deliberated upon by the Standing Committee and  Select committee of the Parliament.

In light of the above, the Ministry of Road Transport & highways has initiated the process of amendment to Rule 8 of Central Motor Vehicles 1989 and the draft notification in this regard will be issued soon.


[Press Release dt. 18-06-2019]

[Source: PIB]

Ministry of Road Transport & Highways

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Indu Malhotra, JJ  has held that there cannot be a uniform qualification or/and disqualification for the Board of Directors under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.

Background of the case:

The case at hand related to the nomination of a Director from the workman/employee category falling in clause (e) of Section 9(3) of the Act and as well as to his/her disqualification for being nominated as a Director in that category Section 9(3) of the Act provides for composition of Board of Directors and also provides as to who can be nominated as Directors in the Board of Directors. Clauses (a) to (i) of sub­section (3) of Section 9 of the Act sets out various categories from which   one Director from each of such categories is nominated in the Board of Directors. Clause(e) deals with a category of workman/employee Director whereas clause(f) deals with a category of officer/employee Director for their nomination in the Board of Directors.

On Distinction between Clauses (e) and (f) of Section 9(3) of the Act:

Both the categories of employees are different as per the perusal of the clauses (e) and (f) of Section 9(3) of the Act that:

  1. One is worker/employee category as defined under Section 9(3)(e) and the other is officer/employee category as defined under Section 9(3)(f) of the Act.
  2. It is for the legislature to decide as to what qualifications and disqualifications should be prescribed for various categories of the employees for their nomination on the post of Director.
  3. There lies a distinction between the worker and the officer. The former, i.e., worker is defined under Section 2(s) of the Industrial Disputes Act, 1947 and is governed by that Act whereas the latter, i.e., officer is not governed by the Industrial Disputes Act but is governed by separate service rules. Both these categories of employees, therefore, cannot be equated with each other and nor can be placed at par for providing equal qualification or/and disqualification for their nomination as a Director in the Board of Directors.
  4. Article 14 of the Constitution applies inter se two equals and not inter se unequals.
  5. The nominee worker/employee has only a right under the Act to be appointed as Director from the category of worker/employee in terms of Section 9 (3)(e) of the Act provided the concerned nominee whose name is recommended by the Union fulfils the qualifications laid down in Clause 3(2)(iii) of the Scheme but not beyond it.

On Uniform Qualification/Disqualification for Board of Directors under Section 9(3) clause (a) to (i):

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director. Moreover, the qualification and disqualification has to be seen prior to his/her becoming a Director and not after his/her appointment as a Director.

[Federation of Bank of India Staff Unions v. Union of India, 2019 SCC OnLine SC 302, decided on 01.03.2019]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Ashwani Kumar Mishra, J. declared that employment cannot be denied to petitioner when it was previously extended to him on his merits multiple times.

This petition has been filed challenging the order of the Joint Director of Education which states the qualification for appointment to the post of part-time instructor that would be guided by the respondent as well as the letter of the Secretary of the Board. The petitioner through his counsel Jitendra Pal Singh Chauhan has contended that owing to the above-mentioned criteria he was being denied the concerned benefits. He stated that he was appointed in 1998 and has continued since then with continued extensions plus as per the rules his appointment shall operate prospectively. The respondent has contended that as his service term was fixed thus his claim shall not be accepted.

The Court was of the view that the appointment of petitioner cannot be treated to be a fresh appointment for the purposes of determining his qualification when his employment has been extended multiple times which shall be considered of him having the requisite qualifications. Thus the Court ordered that the required consideration be made. [Vineet Kumar Kaushik v. State of U.P., 2018 SCC OnLine All 3353, decided on 05-12-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J., disposed of a writ petition whereby absorption in government service was allowed irrespective of the source of salary paid.

Intra-Court appeals which arose out of a common and same set of judgments were filed before the High Court. It was contended by the respondent that the appellant issued a notification whereby it decided to take over a college where he was working as a lecturer on a regular basis and hence the services of teaching and non teaching staff were taken over of which he was denied the benefit which calls for discrimination under Articles 14 and 16 of the Constitution of India. In the second case, the claim was rejected as the respondent was not recruited through an open competitive selection process but covered a considerable time at her employment.

The appellant contended that since the salary the respondent receives was by Self-Financing Scheme and not Grant-in-Aid released by the Department of Education, therefore she fell out of the scope of benefit.

The Court came to the conclusion that acquisition of a college was required in a larger public interest and thus the source of payment was not a consideration with both kind of employees forming a homogeneous class and no artificial discrimination could be made amongst them and hence the respondent stood absorbed in the service. For the second case, the respondent was allowed service on account of sympathetic consideration. However, such absorption will be on notional basis and she will be entitled to salary from the date of actual appointment. The appeals were disposed of accordingly.[State of H.P v. Kamlesh Kumar,2018 SCC OnLine HP 1581, decided on 30-10-2018]

Case BriefsHigh Courts

Kerala High Court: Aggrieved by the decision of a Single Judge in a petition filed by P. Chitra, a national level athlete, who had been denied participation in the International Association of Athletic Federation World Championship (IAAF World Championship) 2017, to be held in London, the Athletic Federation of India (appellant herein) filed an appeal and the matter was heard by a Division Bench comprising of Navaniti Prasad Singh, CJ. and Raja Vijayaraghavan V, J.

The original petition contended that the decision to not include the petitioner was arbitrary because she was the gold medalist in the 1500m race in the Asian Athletic Championships, Bhubhaneshwar, which ensured automatic qualification as the area champion. The learned Single Judge, on account of urgency of the matter, granted interim relief and directed the Federation to ensure the participation of the petitioner in the World Championship.

However, the Federation contended that the petitioner secured a second position in the Nationals held subsequently which was the reason why she was disqualified and she was therefore suppressing material facts. Moreover, the Federation also contended that the Court could not interfere with the decision of an expert body like itself. Rejecting these arguments of the Federation, the Court held that there had been a lot of controversy with regard to the selections of various athletes for the aforesaid World Meet.

The rule whereby an athlete had to perform well in the Nationals had not been entirely followed by the Federation itself in the selection of athletes. The Court acknowledged the fact that representing one’s country in a world meet is the dream of every athlete and it was necessary for the Court to interfere in the arbitrary manner the Federation had been functioning. However, it was also brought to light that no new entries could be made to the list of participants representing the country post July 24, 2017. Observing that the writ issued by the interim order is a futile one incapable of obedience, the Court allowed the appeal and vacated the interim order. [Athletics Federation of India v. Chitra PU, 2017 SCC OnLine Ker 11402, dated 03.08.2017]

Case BriefsSupreme Court

Supreme Court: Directing that Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI shall forthwith cease and desist from being associated with the working of BCCI, the 3-Judge Bench of T.S. Thakur, CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ accepted the norms laid down by the Lodha Committee regarding the disqualification of the office bearers of BCCI which said that a person shall be disqualified from being an Office Bearer if he or she :

  • Is not a citizen of India;
  • Has attained the age of 70 years;
  • Is declared to be insolvent, or of unsound mind;
  • Is a Minister or government servant;
  • Holds any office or post in a sports or athletic association or federation apart from cricket;
  • Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
  • Has been charged by a Court of Law for having committed any criminal offence.

The Bench said that tough sufficient opportunities have been granted to BCCI to comply with the judgment and order of this Court, it has failed to do so. The President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions. The Court had earlier, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. It was noticed that the conduct of the President of BCCI in seeking a letter from the President of ICC in August 2016, after the final judgment and Order dated 18.07.2016, is nothing but an attempt on the part of the head of BCCI to evade complying, with the Order of this Court. The Court, hence, issued a show-cause notice to Anurag Thakur to explain why he should not be proceeded against under the provisions of Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 and under the Contempt of Courts Act, 1971.

Stating that a Committee of administrators shall supervise the administration of BCCI through its Chief Executive Officer, the Court requested Mr Fali S Nariman, learned Senior Counsel and Mr Gopal Subramaniam, the learned Amicus Curiae to assist the Court in nominating the names of the administrators by suggesting names of persons with integrity and experience in managing a similar enterprise. Till then, the Court directed that the senior most Vice-President of BCCI shall perform the duties of the President, BCCI and the Joint Secretary shall perform the duties of Secretary. The matter was listed to be taken up on 19.01.2017 for nominating the names of the members of the committee of administrators. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 4, order dated 02.01.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of R. Banumathi and Shiva Kirti Singh, JJ gave split decision in the writ of certiorari filed by the petitioner seeking the quashment of the Notification dated 16th February, 2015 issued by the High Court of Manipur, whereby the petitioner was declared unsuccessful in viva-voce conducted by the High Court of Manipur for appointment to the post of District Judge (Entry Level) in Manipur Judicial Services Grade-I. The matter will be placed before a larger Bench for final adjudication.

The Impugned Notification notified that “no one shall be declared pass and selected for appointment unless he secures minimum 40% from the interview”. The petitioner, however, was not able to secure 40% in the interview and hence, argued that the marks obtained in the viva-voce should be merely added to the marks obtained in the written examination to finalize the merit list and it was not permissible to have fixed a minimum bench mark for the viva-voce as it amounts to change in the criteria of selection in the midst of the selection process.

Banumathi, J rejected the said contention and said that under the MJS Rules a scheme of converting the numerical marks of each question into an appropriate grade, according to the formula given in the table and re-converting into grades, is stipulated. In the table, the percentage of marks and Grade prescribe that marks below 40% is Grade ‘F’ which means ‘Fail’. Keeping in view the Rules and the table converting numerical marks into Grades and the final Select List that is prepared by adding cumulative grade value obtained in the written examination and the interview/viva-voce, fixing 40% for interview/viva-voce out of total marks of 50 is in consonance with MJS Rules and it will not amount to change in the criteria of selection in the midst of selection process. The object of conducting interview/viva-voce examination has been rightly stated in the Rules to assess suitability of the candidate by judging the mental alertness, knowledge of law, clear and original exposition, intellectual depth and the like. Hence, having regard to the seniority of the post which is District Judge  (Entry Level), the High Court cannot be faulted with for exercising its residuary right reserved in its favour by prescribing cut-off marks for the interview. Also, the petitioner participated in the selection process and only because in the final result the petitioner being unsuccessful, he cannot turn around and contend that the criteria for selection was changed.

Shiva Kirti Singh, J, on the other hand, said that the Rules and the instructions clearly demonstrate that there was no cut-off mark or pass mark for the viva voce examination in the past. Not providing any pass mark for the viva voce while so providing for the written examination clearly indicates that the Rules deliberately chose not to prescribe any cut-off for the viva voce. The statutory rules did prescribe a particular mode of selection which did not require any pass mark for the viva voce examination and it had to be given strict adherence accordingly, at least till the ongoing recruitment process got concluded. Since the procedure was already prescribed by the Rules, in the present case there was clear impediment in law in the way of the High Court in proceeding to lay down minimum pass mark for the viva voce test which was meant only for the petitioner as he was the lone candidate successful in the written examination. Although no case of bias has been pleaded, the impugned action would validly attract the criticism of malice in law. Also, the petitioner being the lone candidate having passed in the written examination, it matters little whether minimum marks for interview were introduced before or after calling him for interview. [Salam Samarjeet Singh v. High Court of Manipur at Imphal, 2016 SCC OnLine SC 1120, decided on 07.10.2016]

High Courts

Rajasthan High Court: In a matter brought before the Court by the petitioners who are aggrieved with the promulgation of an Ordinance by the Governor of the State of Rajasthan, which mandates educational qualification to represent the post of Sarpanchs, members of Panchayat Samiti and Zila Parishads, a bench comprising of Prakash Gupta J. and Sunil Ambwani (Acting CJ.) rejected all the stay applications against the impugned Ordinance and refrained to interfere in the matter of elections once the election process has started.

In the instant case, Indira Jai Singh, the learned Counsel for the petitioners prayed for an appropriate order or direction to stay the effect of an Ordinance promulgated by the Governor of the State of Rajasthan, which amends Section 19 of the Rajasthan Panchayati Raj Act, 1994 and mandates minimum qualification of class 12th ,  5th and 8th passed for member of Zila Parishad or Panchayat Samiti, Sarpanch of a Panchayat in a Scheduled Area and Sarpanch of a Panchayat other than in a Scheduled Area respectively. The Counsel contended that the State of Rajasthan has acted in colourable exercise of powers with an oblique purpose to disqualify and to exclude a large section of population living in rural areas from the election process. The Counsel further pleaded to grant interim protection to save the rights of thousands of persons who did not had an opportunity of formal education in the State of Rajasthan.

N.M. Lodha, learned Advocate General for the respondent, contended that the powers of the Governor to promulgate an Ordinance during the recess of Legislature under Article 213 of the Constitution cannot be subjected to judicial review. The Court noted that “prescription of educational qualification for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti-thesis to the democratic governance of the institution in a republic. It is a negation of the very object of purpose of enacting the Constitution of India, described in its preamble”. The Court relied on the contention of R.B. Mathur, the learned counsel for the Rajasthan State Election Commission and refrained itself from interfering in the matter of election as “any interim order at this stage causing interference in the process of elections for constituting Panchayats, will lead to chaos and confusion, and will create a crisis for the Rajasthan State Election Commission in holding elections”. The Court rejected all the stay applications against the Ordinance and directed the parties to produce empirical data before the Court to prove their grounds for/against the effect of the Ordinance. Dulari Devi v. State of Rajasthan, 2015 SCC OnLine Raj 121, decided on 15-01-2015.