Cyril Amarchand MangaldasExperts Corner


In a largely capitalistic economy, advertisements are one of the most important sources of creating awareness about various products. We may have shifted our reliance from advertisements in print media and televisions to advertisements on social media, however, advertisements continue to remain the largest creator of demand among consumers. Companies continue to employ the most innovative techniques to woo their customers and boost sales. While attempting to do so, corporates often tend to promote their brand as being superior to their competitor’s.

Over the course of this article, we examine the recent decision of the Delhi High Court (“the High Court”) in Horlicks Limited  v. Zydus Wellness Products Limited[1]  (“Horlicks case”), where the High Court has dealt with the law relating to misleading advertisements and disparagement.

Article 19 and Commercial Speech

Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to all citizens of India, and the essential corollary to the same is the right to be informed and access to information. In  Romesh Thappar v. State of Madras[2], the Supreme Court held that Article 19(1)(a) includes the freedom of press, however, it was in Indian Express Newspaper v. Union of India[3] that the  Supreme Court  held that commercial speech is protected under the ambit of free speech and expression under Article 19 and  the Supreme Court  observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen and its true character is detected by the object for the promotion of which it is employed.”

The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd.[4]  (“Tata Press”), wherein the Supreme Court observed the right of the consumer as a recipient of commercial speech by stating, “An advertisement giving information regarding a life-saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech.” Further, the  Supreme Court  also held that misleading and deceptive advertising would not fall within the protection of Article 19.

The law relating to misleading advertisement

 As evident from the name, a misleading advertisement is one that deceives, manipulates or is likely to deceive or manipulate the consumer. These advertisements have the ability to cause serious damage to the consumers, as well as competitors and hence are required to be restrained. The courts, while deciding various cases, have tried to strike a balance between protecting the right to commercial speech and the interest of consumers and competitors.

In the recent Horlicks case[5], the High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging.

 Horlicks Limited  v. Zydus Wellness Products Limited

Horlicks Limited (“Horlicks”) approached the Delhi High Court, seeking a permanent injunction restraining Zydus Wellness Products (“Zydus”) from telecasting its advertisement, which showed that one glass of Complan (a Zydus Product) is equivalent to two glasses of Horlicks. The advertisement in contention was being telecast on multiple channels in English, Bengali and Tamil. Aggrieved by the advertisement, Horlicks approached the High Court on the ground that the advertisement was misleading and amounted to disparagement.

Zydus, on the other hand contended that the advertisement was not misleading as the information provided was accurate and was subject to the recommended serving size of both the drinks. A suit on similar grounds was filed by Horlicks for an advertisement published by Zydus in print media. The High Court had granted an interim injunction, restraining Zydus from publishing the advertisement, however, the injunction was vacated, when Zydus, voluntarily modified the advertisement, by including the disclaimer about the serving size and undertook to only publish the modified advertisement.

While arriving at a decision on the interim relief, the High Court analysed and relied upon the plethora of judgments on misleading advertisements, disparagement and law governing publication of advertisements on television, including:

(i) Reckitt & Colman of India Ltd. v. M.P. Ramchandran[6], wherein the Calcutta High Court held that a seller is allowed to declare that his goods are the best or better than that of his competitor’s, despite the said declaration being false. While making such declaration, he may also compare the advantages and disadvantages of his products and that of the competitors; however, the seller is not permitted to defame the goods of his competitors and if there is no defamation, the competitor will have no cause of action to file a case of misleading advertisement and disparagement.

(ii) Dabur India v. Colortek Meghalaya Pvt. Ltd. [7] (“Dabur India”), wherein the Delhi High Court laid down the following guiding principles while dealing with the issue of misleading advertisements:

  • Advertisements are protected under Article 19(1)(a) as commercial speech;
  • An advertisement must not be false, misleading or deceptive;
  • However, there are certain cases where the advertisement must not be taken as false, but as a glorious representation of one’s own product; and
  • Only when the impugned advertisement goes beyond glorifying its product, and is deceptive and misleading, the protection under Article 19(1)(a) would not be available.

The High Court while dealing with the principles on law of disparagement laid down in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. [8], held that:

(1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product? In this context, it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison, but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. (3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

(iii) In Havells India Ltd. v. Amritanshu Khaitan[9] the Delhi High Court clarified the difference between comparative advertising and misleading advertising and disparagement. It observed that comparative advertising is healthy and encouraged in the spirit of competition, however, disparagement is not; and a cause of action shall arise in case of a misleading advertisement.

(iv) In Gillette India Limited v. Reckitt Benckiser (India) Private Limited[10], the Madras High Court noted the difference between electronic media and print media, while deciding cases of disparagement. In doing so, it observed that electronic media has greater power to leave a lasting impression in the minds of the viewers as compared to print media and held that, “catchy phrase, a well enacted skit or story line, or even distinctive sounds or distinctive collocation of colours make a lasting impact and more so, when viewed repeatedly.

The High Court while relying on the abovementioned cases held that the impugned advertisement was misleading and disparaging, even though the disclaimer was provided in the advertisement, the same was not clear and the advertisement created an impression that one cup of Complan was equal to two cups of Horlicks, without considering the serve size. The High Court, based on the above observation, held that the balance of convenience was in favour of Horlicks, who would suffer an irreparable injury if telecast of the impugned advertisement was not restrained and hence, granted the relief of interim injunction.


The law on misleading advertisement is ever evolving and the HC judgement in  Horlicks case[11] is an addition to the long list of judgements on misleading advertisement. It is interesting to note that the High Court allowed the circulation of the same advertisement in print media, however, restrained the telecast of the same. We understand that the differentiation between print media and electronic media lies in their impact on the audience. Since electronic media uses a combination of audio-visual techniques, it is more likely to influence its audiences and hence requires stricter regulations. Hence, the same advertisement was allowed to be published in print media, however, restrained from being telecast on television.

Additionally, an analysis of the case laws referred above shows that the law relating to misleading advertisements is extremely subjective and a small alteration in the fact may affect the outcome. It appears that while it is not disparaging and misleading for a seller to compare his products with his competitor’s and even claim that his product is better than those of his competitor’s, it may be disparaging and misleading if the competitor’s goods are shown to be inferior to the seller’s.

*Partner, Cyril Amarchand Mangaldas, Advocates & Solicitors

**Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

***Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

[1] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020.

[2] Romesh Thappar v.  State of Madras, 1950 SCR 594

[3] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India,  (1985) 1 SCC 641

[4] Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139.

[5] Horlicks Limited v Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

[6] Reckitt & Colman of India Ltd. v. M.P. Ramchandran , 1998 SCC OnLine Cal 422

[7] Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391

[8] Pepsi Co. Inc.  v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802 the Court laid the following principles:

  • Intent of the advertisement;
  • Manner; and
  • Story line and the message sought to be conveyed.

[9] Havells India Ltd. v. Amritanshu Khaitan , 2015 SCC OnLine Del 8115

[10] Gillette India Limited v. Reckitt Benckiser (India) Private Limited, 2017 SCC Online Bom 207

[11] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

Case BriefsHigh Courts

Punjab and Haryana High Court:  Amit Rawal. J. dismissed the writ petition where the language of the advertisement clearly indicated the instruction for the selection.

A petition was made to quash the result of the Ex-Serviceman under BCA Category and Ex-Serviceman category as the same were not in accordance with instructions.

Sachin Jain and Naman Jain, Counsels for the petitioner submitted that the petitioner was retired from the Indian Army under Short Service Commission and had a disability of 20 percent and belonged to OBC (Non-Creamy Layer). An advertisement was made by HPSC for recruitment of the Ex-Serviceman and preferences were given to disabled Ex-serviceman having disability between 20 percent to 50 percent. The petitioner applied for the same post with all the requisite documents. The petitioner has been sanguine of selection was flabbergasted noticing the result that he was not selected. An Ex-serviceman suffering from a disability between 20% to 50% was to be given preference against dependents of those killed/disabled beyond 50% and thereafter, other Ex-servicemen can be considered for appointment.

Kanwal Goyal, counsel for the HPSC submitted that the decision of HPSC for not shortlisting the names of the petitioner in the written examination was correct as marks secured in the preliminary exam was less than cut off marks. It was also submitted that the reservation was to be applied at the time of final selection and not prior to that and thus urged for the dismissal of the writ petition.

The court opined that the language of instructions reveals that reservation to be applied for recruitment not to be made through competitive examination. Preliminary examination is not a competitive examination and thus the contention of the petitioner that violation of non-application of reservation at the time of preliminary examinations failed and the writ petition was dismissed. [Deepak Vaishnav v. HPSC, CWP No. 16637 of 2019 (O&M), decided on 01-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Ranjan Gupta, J. dismissed the writ petition on the ground that petitioners do not possess the requisite qualification as prescribed by the Recruitment Board.  

The facts of the case were that the respondent-department issued an advertisement for recruitment of Intelligence Assistant in the rank of constable in the Intelligence Wing of Punjab Police. Prescribed physical standards and the selection process was thereafter issued. A petitioner, being eligible for the post was called for the physical test and admit card was also issued. Thereafter, the petitioner received the information that his candidature was not accepted as he was found not eligible. Thereafter he appeared before the Recruitment board in order to represent but no action had been taken thereon. Thus, this petition. 

H.S. Saini, Counsel for the state submits that the petitioner does not possess the necessary qualification as per the advertisement and thus prayed for the dismissal of the present petition. 

The court observed that  a candidate should be a graduate from a recognized University or Institution and should also possess an ‘O’ Level Certificate of Information Technology from Department of Electronics Accreditation of Computer Course (DOEACC) or National Institute of Electronics and Information Technology (NIELIT) or its equivalent institution recognized by Government of India or any State Government. The selection board found that qualification possessed by the petitioner was not equivalent to that prescribed in the advertisement. The court thus held that “the emphasis in the advertisement is on “equivalent institution” recognized by Government of India or any State Government. None of the petitioners claim to have a qualification from such “equivalent institution”. Thus the petition was dismissed. [R.K. Harshvir Singh v. State of Punjab, 2019 SCC OnLine P&H 791, decided on 06-06-2019]

Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J. entertained a writ petition which sought relief against Bihar Public Service Commission to re-advertise by the way of corrigendum for the post of Dental Doctor and to be allowed to participate in the selection process.

The petitioner prayed for declaring the advertisement of 2015 issued by the Commission contrary to the Reservation Rules, 1991. The petitioner contended that she completed BDS course in 2016. It was stated that 617 posts in dental services were created by a notification of 2013, thus total sanctioned strength in the dental services became 700, out of which a few were earmarked for promotions and a few were already occupied, leaving 558 posts vacant. The Government of Bihar, enacted the Bihar Dentist Service Rule, 2014 for regulating appointments and service conditions in the dentist service. The commission issued an advertisement of 2015, for respective vacant posts and applications were invited from the eligible candidates. Further, it was stated that only 16 posts were earmarked for the backward class female.

The learned counsel for the petitioner, Kripa Nand Jha, submitted that the eligibility criteria in the advertisement of 2015 was BDS degree from a recognized University and should had been registered under the Bihar and Orissa Medical Act, 1916. The counsel brought to the notice of Court that since all the vacant posts were advertised and the last date of submission of the form was in 2015, the petitioner who received his degree in 2016, and similar aggrieved students would be precluded from obtaining employment for years to come.

The learned counsel for the respondent Commission, Zaki Haider, submitted that upon a requisition sent by the Department of Health, the Commission has published the advertisement for appointment as the post of basic grade Dental Surgeon under the Department of Health, Government of Bihar. He referred to the requisition sent by the Government in 2015, it had been submitted that the roster clearance was obtained from the General Administration Department and only thereafter, the vacancies were advertised, category wise. He further submitted that earlier also the Bihar Dentist Rules, 2014, issued vide notification in 2014, which was challenged before the High Court and the learned Division Bench of Court had dismissed the said writ petition.

It was contended by the other respondents, that proviso to Article 309 of the Constitution of India, conferred the powers to said State and specifically stated that as far as the prayer of the petitioner regarding issuance of a direction upon the respondents to re-advertise the post of Dental Surgeon and 35% horizontal reservation to the female candidates was permitted. They further contend that the petition was misconceived and bereft of any merit as to the aforesaid notification of the Department of 2016, and was not effective retrospectively. The requisitions were made by the Health Department and, accordingly, the Commission had issued the advertisement taking into consideration the rules of reservation i.e. the Bihar Reservation for Vacancies in posts and Services for Scheduled Caste, Scheduled Tribes and other Backward Classes Act, 1991.

The Court observed that, all adverting to the issue of applicability of the notification issued by the Department, admittedly the same is not applicable retrospectively and moreover, the roster clearance has been taken by the Health Department from the General Administration Department after which requisition was sent and thereafter, the advertisement has been published immediately in 2015, in pursuance to the Bihar Dental Service Rules, 2014.  Hence, the Court held that the said notification of the General Administration Department in 2016 cannot be applied for the recruitment process under consideration in the present writ petition. The contention of the petitioner regarding the Rules, 1991 being contrary to the advertisement of 2015 was also declared void. The Court noted submission made by the learned counsel for the petitioner to the effect that since the petitioner passed in the year 2016 and the advertisement had been issued in 2015, the petitioner was pre-empted from applying for the post of Dental Doctor in the Health Services of the Government of Bihar, and rejected the same as the petitioner was not eligible to apply in pursuance to the advertisement of 2015, hence she had no locus standi to challenge the eligibility conditions. Hence, the petition was dismissed.[Pragya v. State of Bihar, 2019 SCC OnLine Pat 689, decided on 17-05-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. dismissed a Writ Petition on the basis of formal closure of ‘Rehbar-e-Taleem Teachers’ (ReT) scheme by Government’s order.

A writ petition was filed by the petitioner requesting the High Court to issue a Writ of Mandamus commanding the respondents to select the petitioner and appoint him on the basis of merit eligibility against the post of ReT in a newly opened school. Respondent 7, who was placed at Serial 1, got less percentage than the petitioner, who was placed at Serial 3, and also her certificate was not certified by the University Grant Commission. The petitioner raised an objection to that.

The learned senior Additional Advocate General, entering on the behalf of the respondents, submitted that the government has formally sanctioned the closure of the ReT scheme vide Government Order No. 919-Edu of 2018, and therefore no indefeasible right has accrued to the petitioner claiming her appointment.

The Court held that since the government had formally withdrawn the appointment under ReT scheme, the Court could not direct the respondent to appoint the petitioner against a non-existing position. The Court was of the view that when the Government had taken a policy decision canceling all the advertisements for engagement of ReT,  the Court could not direct appointment against such post.

Hence, the writ petition was held to be devoid of any merit and dismissed in limine. However, the petitioner was granted liberty to challenge the Government Order No. 919-Edu of 2018.[Rayees Qadir Padder v. State of J&K, 2019 SCC OnLine J&K 418, decided on 07-05-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the essential qualifications for appointment to a post are for the employer to decide, the bench of Arun Mishra and Navin Sinha, JJ said,

“The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review.”

The Court further held that if the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law.

“In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

The Court was hearing the appeal filed against the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

It was submitted before the Court that the academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. It was argued that the High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

The Court said that the plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.

The Court also said that

“an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

[Maharashtra Public Service Commission v. Sandeep Shriram Warade, 2019 SCC OnLine SC 652, decided on 03.05.2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy and A.K. Jayasankaran Nambiar, JJ. allowed a civil writ petition praying for a direction to use only eco-friendly materials for the purpose of advertisement during the ongoing election campaign in Kerala.

The instant PIL was filed seeking prohibition on the usage of Poly Vinyl Chloride (PVC) flex boards in the upcoming Lok Sabha elections, by political parties/ candidates. Submission of learned counsel Mr M.Kannan, appearing for the petitioner, was that PVC is a major pollutant and its use for flex boards would negate the Environment (Protection) Act 1986, Plastic Waste Management Rotes, 2016, and also the rights of citizens to a clean and safe environment under Articles 21 and 48-A of the Constitution of India.

Learned counsel Mr Murali Purushothaman representing the Election Commission of India produced a copy of communication dated 26-02-2019, whereby all recognised National/State political parties were directed to make the forthcoming election eco-friendly, and opt for the elimination of single-use plastic materials in the election campaign.

The Court took note of submissions on behalf of both the counsels and also noted that this Court, in a separate proceeding, had issued direction for removal of unauthorised PVC flex boards within the limits of various local authorities in the State. In view thereof, the Court directed all candidates and National/State political parties to strictly adhere to the guidelines of the Election Commission and not use PVC flex boards and other such non-bio-degradable material during the election campaign.[B.S. Syamkumar v. State of Kerala, WP(C) No 7193 of 2019 (S), Order dated 11-03-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of B.R. Gavai and Riyaz I. Chagla, JJ. partly allowed an appeal filed against the judgment allowing notice of motion restraining appellant from inter alia (i) telecasting or broadcasting or otherwise howsoever communicating to the public or publishing two Television Commercials (impugned TVCs) or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the impugned TVCs or any part thereof or any other advertisement of a similar nature to be telecast or broadcast or communicated to the public or published in any manner and (ii) disparaging or denigrating the plaintiff’s KWALITY WALL’S products or the plaintiff’s business in any manner whatsoever.

Factual matrix of the case states that, plaintiff-Hindustan Unilever Limited (HUL) are one of India’s well-known and reputed company in the FMCG sector. Plaintiff states that “KWALITY” has been a well recognised brand in India, having been in the market for over 70 years and was acquired by the plaintiff before entering into the business of ice creams and desserts in India and KWALITY has been used along with plaintiff’s own global brand WALL’S as KWALITY WALL’S.

“KWALITY” enjoys a special status in the eye of public being a very popular trade mark.

Plaintiff’s state that the two impugned Television Commercials (TVCs) advertised by defendant 1 and 2 had an effect of disparaging the frozen desserts, majority of which are manufactured and marketed by the plaintiff. In the said TVCs, it is shown that the product of Defendant 1 is manufactured by using 100% milk whereas frozen desserts are manufactured by using Vanaspati. The point of concern placed by the plaintiff is that Vanaspati is considered to be having bad effects on the health of the consumers and plaintiff is not using Vanaspati, in fact it uses edible vegetable oil in its products. Further, the plaintiff has stated that as far as frozen desserts are concerned, they contain a small amount of edible vegetable oil. However, the impugned TVCs depict that frozen desserts contain 100% Vanaspati oil. The said TVCs are not permissible in law.

Defendants stand:

According to the defendants, the advertisements did not show product of the plaintiff, however only a comparison between the product of the defendants and the frozen desserts. The contention of the defendants was that at least 30% of the manufacturers of the frozen desserts use Vanaspati.

Learned Single Judge’s decision:

It had granted an order of injunction, due to which the aggrieved filed the present appeal.

Detailed contentions of the parties:

Learned Counsel Mr Kadam on behalf of Appellant/Defendant 1 stated that as far as the first TVC was concerned, the word used by the defendants was ‘Vanaspati’, and since plaintiff had an objection to use the word ‘Vanaspati’, the same was omitted in subsequent advertisement with the word ‘Vanaspati tel’ meaning ‘edible vegetable oil’.

Perusal of the complaint made by the plaintiff to ASCI i.e. Advertisement Standard Council of India would show that the objectionable word for them was ‘Vanaspati’. Therefore, it was submitted that defendants omitted the word ‘Vanaspati’ and substituted the same with ‘Vanaspati tel’, which is in fact used by the plaintiff in its product, the grievance could not survive. To determine whether a particular TVC disparages the product, Court needs to apply the “test of an ordinary person with reasonable intelligence”, but the procedure adopted by learned Single Judge was not permissible in law.

“While considering the advertisement, rival is not expected to be hypersensitive to the advertisement.”

Injunction passed also bars the appellant from even airing similar advertisement without defining the scope thereof. At the most, injunction passed should have been in respect of the TVCs which were impugned in the suit. It has been stated that the learned Single Judge has gone far ahead and granted injunction in the widest possible terms.

Counsel for the respondent Mr Chinoy stated that if TVCs are seen in its entirety, the impression that the ordinary person with reasonable intelligence would get is that, the product of the appellant is manufactured by using only milk whereas, frozen dessert, in which market, the Respondent 1/plaintiff holds majority shares, is manufactured by using ‘Vanaspati’. Further, it was stated that, “Insofar as puffing up of the product of the appellant is concerned, nobody could have objection, even if an untrue statement is made. However, the advertisement carrying the message which disparages the product of the competitors, would not be permissible in law.”

The present appeal is an appeal against the grant of injunction in favour of the plaintiff.

Decision of the High Court in the instant matter with in-depth analysis on the aspect of ‘disparagement’:

The bench stated that first impression upon seeing the advertisement one would get is that the product of the appellant, ice cream is manufactured by using 100% milk, whereas frozen desserts are manufactured by using 100% Vanaspati or Vanaspati tel.

“For deciding the question of disparagement, Court will have to take into consideration intent of the commercial, manner of the commercial and storyline of the commercial and the message sought to be conveyed by the commercial.”

Further, it was noted that it is clear on perusal of the TVCs that the manner in which the advertisement is aired, message that is sought to be given is that the frozen desserts are manufactured by using only Vanaspati tel which is harmful for the health. Therefore, the appellant cannot be permitted to air the advertisement which disparages the product of its competitors.

“While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if it does so, the advertiser must have reasonable factual basis for the assertion so made.”

Bench opined that the view taken by the learned single judge bench stating the TVCs to be disparaging in nature requires no interference. Though blanket injunction is not required as the entire TVC is not of objectionable nature. The appeal was thus partly allowed. [Gujarat Co-Operative Milk Marketing Federation Ltd. v. Hindustan Unilever Ltd., 2018 SCC OnLine Bom 7265, decided on 13-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. dismissed a petition as the denial of compassionate appointment was justified on the part of the respondents.

The petitioners challenged an order wherein their services were terminated on the ground that their family members were already in service when they were appointed on compassionate ground. It was contended by their counsel Md. Shahnawaz Ali that one of the family members shall be given the benefit of compassionate appointment when the only bread earner of the family dies.

The Court placed reliance on the fact that when the family members of the petitioners were working in the Corporation, the question of their appointment on compassionate appointment does not arise and thus termination of the petitioners was not erred on the part of the respondents.

Accordingly, the petition was dismissed but if an advertisement was published in future, the respondents shall be at liberty to consider the case of the petitioners on sympathetic grounds. [Pradeep Kumar Ram v. State of Bihar, 2018 SCC OnLine Pat 2268, decided on 21-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed a writ petition whereby the petitioners assailed the order of selection of medical officers, which was passed by the respondent authorities.

The main issue that arose before the Court was whether the order passed by the respondent authorities was good in law.

The Court observed that the petitioners had applied for the post of medical officers but couldn’t qualify, however, it is pertinent to mention that the petitioners had read the advertisement and after accepting all the terms and conditions therein, applied for the position of medical officer. It was specifically mentioned in the advertisement itself that the total no. of seats for general candidates was 14 out of 30, however, the petitioners did not raise any objection at the time of applying for the said posts. The petitioners challenged the advertisement and order of selection only after they could not qualify for the said posts. They participated in the selection process with their eyes wide open and took chance in the selection. The Court referred to the Supreme Court judgment of Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 wherein it was held that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.

The Court held that the petitioners had participated in the process of recruitment after reading the terms and conditions of the advertisement and hence they cannot be allowed to challenge the advertisement at a later stage. Accordingly, the petition was dismissed by the Court. [Sheetal Sharma v. State of J&K,2018 SCC OnLine J&K 707, decided on 05-10-2018]