Case BriefsSupreme Court

   

Supreme Court: In an appeal alleging that the Bihar State Pharmacy Registration Council is issuing registration certificates on the basis of fake certificates, the Division Bench of M.R. Shah and M.M. Sundress, JJ., issued notice to the Bihar government asking why no steps had been taken to desist functioning of fake pharmacies in the State.

The appellants had also alleged that it was also alleged that the Council is granting certificates on the basis of experience gained by the person, which is completely against the provisions of the Pharmacy Act, 1948.

Noticeably, at the relevant time, the Pharmacy Council of India/Bihar State Pharmacy Council constituted a fact-finding committee, and its report was already forwarded to the State Government. However, nothing is on record regarding the steps taken by the State Government to stop the fake pharmacists functioning in the State.

The Court opined that permitting the fake pharmacists to run the medical stores and/or functioning, would be playing with the life of the citizens. Hence, the State ought to have been vigilant to curb and stop the fake pharmacists.

Resultantly, the Court directed the State to place on record by way of counter affidavit, what steps are taken to stop the fake pharmacists from functioning and more particularly, on the basis of the report submitted by the fact-finding Committee. Further, the Court granted leave to join the Bihar State Pharmacy Council as respondent and issued a notice returnable on 21-11-2022.

[Mukesh Kumar v. State of Bihar, 2022 SCC OnLine SC 1586, decided on 07-11-2022]


Advocates who appeared in this case :

Rachitta Rai, AOR, Advocate for the Appellants;

AORs Abhinav Mukerji and Zoheb Hossain, Advocates Pratishtha Vij, Bihu Sharma, Akshay C. Shrivastava, Advocates, for the Respondent(s).


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

Legislation UpdatesNotifications

The Government of Bihar has imposed a complete ban on the manufacture, import, stocking, distribution, sale and use of following single use plastic, including polystyrene and expanded polystyrene, commodities with effect from the 1st July, 2022, vide notification dated December 16, 2021:

  1. Ear buds with plastic sticks, plastic sticks for balloons, plastic flags, candy sticks, ice-cream sticks, polystyrene (Thermocol) for decoration
  2. Plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, wrapping or packing films around sweet boxes, invitation cards and cigarette packets, plastic or PVC banners less than 100 micron, stirrers.

The provisions shall not apply to commodities made of compostable plastic.


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the case where the National Green Tribunal had directed that unless the State Expert Appraisal Committee (SEAC) and the State Environment Impact Assessment Authority (SEIAA) grants approval to the District Survey Report (DSR) for the purpose of mining of sand, the same cannot be carried out in the State of Bihar, the bench of L. Nageswara Rao, Sanjiv Khanna and BR Gavai, JJ has modified the said order and has allowed the State to continue with legal mining activities through Bihar State Mining Corporation with certain necessary arrangements.

“… until the DSRs are finalized and granted approval by SEAC and SEIAA, it is appropriate that certain necessary arrangements are permitted so that the State can continue with legal mining activities. This apart from preventing illegal mining activities, would also ensure that the public exchequer is not deprived of its share in legalized mining.”

Understanding the need for a balanced approach of sustainable development ensuring environmental safeguards, the Court noticed that,

“…it also cannot be ignored that when legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives. It also cannot be disputed that sand is required for construction of public infrastructural projects as well as public and private construction activities. A total ban on legal mining, apart from giving rise to illegal mining, also causes huge loss to the public exchequer.”

Preparation of DSRs as per Enforcement and Monitoring Guidelines for Sand Mining, 2020

In accordance with the Enforcement and Monitoring Guidelines for Sand Mining, 2020,

  • the DSR is required to be prepared before the auction/e-auction/grant of mining lease by Mining Department or Department dealing with mining activity in the respective States.
  • the potential site for mining having its impact on the forest, protected area, habitation and bridges should be avoided. For this, a sub-divisional committee is required to be formed which, after the site visit, is required to decide regarding the suitability of the sites for mining.
  • the sub-divisional committee is further required to record its reasons for selecting the mining lease in the patta land. Various details are required to be given in the annexures appended to the said policy.

Preparation of DSRs through Private consultants – Unnecessary

When the 2020 guidelines as well as the notification issued by MoEF and CC of 2016 itself provide for constitution of sub-divisional committees comprising of the officers of the State Government from various Departments for identification of the potential sites for mining, there would be no necessity of the DSRs being prepared through private consultants as directed by the Tribunal in the impugned order.

The sub-divisional committee consists of various officers from Revenue Department, Irrigation   Department, State Pollution Control Board, Forest Department and Geology Mining Department of the State Government who are better equipped to visit the sites and prepare the draft DSR for the concerned district.

“The advent of modern technology, various technological gadgets like Drones and satellite imaging etc. can be used for identification of the potential sites and preparation of the DSR and also to check misuse and unauthorized mining.”

Apart from that, preparation of DSR through private consultants would also unnecessarily burden the public exchequer.

Directions

(i) The exercise of preparation of DSR for the purpose of mining in the State of Bihar in all the districts shall be undertaken afresh. The draft DSRs shall be prepared by the sub-divisional committees   consisting of the Sub-Divisional Magistrate, Officers from Irrigation Department, State Pollution Control Board or Committee, Forest Department, Geological or mining officer. The same shall be prepared by undertaking site visits and also by using modern technology. The said draft DSRs shall be prepared   within a period of 6 weeks from the date of this order. After the draft DSRs are prepared, the District Magistrate of the concerned District shall forward the same for examination and evaluation by the SEAC.   The same shall be examined by the SEAC within a period of 6 weeks and its report shall be forwarded to the SEIAA within the aforesaid period of 6 weeks from the receipt of it. The SEIAA will thereafter consider the grant of approval to such DSRs within a period of 6 weeks from the receipt thereon;

(ii) While preparing DSRs and the appraisal thereof by SEAC and SEIAA, it should be ensured that a strict adherence to the procedure and parameters laid down in the policy of January 2020 should be followed;

(iii) Until further orders, the State Government can carry on mining activities through Bihar State Mining Corporation for which it may employ the services of the contractors. However, while doing so, the State Government shall ensure that all environmental concerns are taken care of and no damage is caused to the environment.

[State of Bihar v. Pawan Kumar, CIVIL APPEAL NOS. 3661­3662 OF 2020, order dated 12.11.2021]


Counsels:

For State: Senior Advocate Atmaram Nadkarni

For applicant: Senior Advocate P.S. Patwalia

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has held that such persons whose place of origin/domicile on or before the appointed day i.e. 15th November, 2000 was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Bihar Reorganisation Act, 2000 can claim the benefit of reservation for participation in public employment in either of the successor State of Bihar or State of Jharkhand. Reservation can, however, not be claimed in both the States simultaneously.

What was the case about?

  • The Court was dealing with the case wherein the appellant’s father originally belonged to District Patna in the State of Bihar but as alleged, the appellant was born on 27th November, 1974 in Hazaribagh where his father was residing which earlier was part of the unified State of Bihar but after the Bihar Reorganisation Act, 2000 came into force from the appointed day, i.e. 15th November 2000, District Hazaribagh became part of the successor State of Jharkhand.
  • It was his case that he was born & brought up and took his education within the territory which is now in the State of Jharkhand.
  • He belongs to Scheduled Caste category and a certificate was issued by the competent authority in the State of Jharkhand.
  • He was appointed on the post of Assistant Teacher on 21st December, 1999 and posted in a school in Ranchi, the capital of Jharkhand against the post reserved for SC category and pursuant to the cadre revision on bifurcation of the States, he opted the State of Jharkhand.
  • He then appeared as a member of SC category in the third Combined Civil Services examination, 2008 and cleared the preliminary, as well as main examination followed with an interview and the final result was published in the year 2010 and his name appeared at Sl. No. 5 against 17 vacancies reserved for Scheduled Caste category.
  • However, his appointment order was withheld on the ground that he is permanent resident of District Patna in the State of Bihar and hence, is to be treated as migrant to the State of Jharkhand.
  • In consequence, he was not eligible for appointment in Scheduled Caste category pursuant to his participation in the selection process held in the Combined Civil Services Examination, 2008.

It was argued by the State of Jharkhand that the existing service conditions including benefit of reservation in the promotional cadre post shall not be varied to his disadvantage but he shall be considered to be a migrant to the State of Jharkhand while participating in public employment to compete in open/general category and asked to seek the benefit of reservation in the neighbouring State of Bihar, to hold different status in his parent State of Jharkhand after he became a member of service of the State of Jharkhand, serving for sufficient long time on and after the appointed day, i.e. 15th November, 2000 in the State.

The Court found this argument unsustainable in law and in contravention to the scheme of the Act 2000. The Court said,

“The collective readings of the provisions of the Act, 2000 makes it apparent that such of the persons whose place of origin/domicile on or before the appointed day was of the State of Bihar now falling within the districts/regions which form a successor State, i.e., State of Jharkhand under Section 3 of the Act, 2000 became ordinary resident of the State of Jharkhand, at the 43 same time, so far as the employees who were in public employment in the State of Bihar on or before the appointed day, i.e. 15th November, 2000 under the Act 2000, apart from those who are domicile of either of the district which became part of the State of Jharkhand, such of the emploees who have submitted their option or employees who are junior in the cadre of their seniority as per the policy of the Government of India of which a reference has been made, either voluntarily or involuntarily call upon to serve the State of Jharkhand, their existing service conditions shall not be varied to their disadvantage and stands protected by virtue of Section 73 of the Act, 2000.”

Holding that the appellant would be entitled to claim the benefit of reservation including the privileges and benefits admissible to the members of Scheduled Caste category in the State of Jharkhand for all practical purposes including participation in open competition seeking public employment, the Court said,

“It will be highly unfair and pernicious to their interest if the benefits of reservation with privileges and benefits flowing thereof are not being protected in the State of Jharkhand after he is absorbed by virtue to Section 73 of the Act 2000 that clearly postulates not only to protect the existing service conditions but the benefit of reservation and privileges which he was enjoying on or before the appointed day, i.e. 15th November, 2000 in the State of Bihar not to be varied to his disadvantage after he became a member of service in the State of Jharkhand.”

Key takeaways

  • Such of the employees who are members of the SC/ST/OBC whose caste/tribe has been notified by an amendment to the Constitution(Scheduled Castes)/(Scheduled Tribes) Order 1950 under Vth and VIth Schedule to Sections 23 and 24 of the Act 2000 or by the separate notification for members of other backward class category, benefit of reservation including privileges and benefits flowing thereof, shall remain protected by virtue of Section 73 of the Act 2000 for all practical purposes which can be claimed (including by their wards) for participation in public employment.
  • A person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa.

[Pankaj Kumar v. State of Jharkhand, 2021 SCC OnLine SC 616, decided on 19.08.2021]


*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Patna High Court
Case BriefsCOVID 19High Courts

Patna High Court: The Division Bench of Chakradhari Sharan Singh And Mohit Kumar Shah, JJ., expressed its sheer dissatisfaction over the progress made by the Health Department, Government of Bihar on many fronts in fighting COVID crises. The Bench expressed,

“At this stage, in our opinion, if some drastic step is not taken, the situation in the State of Bihar, arising out of COVID crisis, which has already gone beyond control, is likely to deteriorate to immeasurable proportions.”

The Bench noticed that even after giving assurance that 60 oxygen beds were available in ESIC Hospital, Bihta, which were in the process of being enhanced to 500 beds, the State government had not been able to ensure proper utilization of even 60 oxygen beds, let alone, enhancing the number of beds, primarily because of non-supply of medicines. Similarly, though the Bihar Health Society had been directed by the government to make available fund to the tune of Rs. 50 lakhs to the District Health Society, Patna, for supplying drugs/ medicines, so far there had been no supply of medicines in the facility at ESIC, Hospital, Bihta.

Opining that various orders issued by the Court in the instant matter speak for themselves, the Bench stated that it is essential for the Court to take some drastic step to prevent the situation in the state from deteriorating to immeasurable proportions as it already had gone beyond control. The Court stated.

This Court will be failing in its duty if necessary orders are not passed befitting the present situation, in the larger public interest, to ensure protection of right to life of the people in the State of Bihar.”

Advocate General, Mr. Lalit Kishore had submitted that before any order is passed the State may be given an opportunity to file affidavit, as the Government had successfully met the challenge arising out of COVID-19 crisis, had done the best which could have been done and there had been substantial increase in the healthcare facilities and COVID beds to facilitate treatment of the COVID patients.

Accordingly, the Court directed the state to file affidavit by 06-04-2021 and while doing so, the Court further reminded the state to keep in mind various facts emerging from the orders passed by this Court from time to time in this matter. Refusing to issue any further direction the Bench remarked,

“Despite the fact that in spite of repeated directions issued by this Court, in the Court’s opinion, most of them have remained on paper and have not been complied with, awaiting the response of the State Government.”

[Shivani Kaushik v. Union of India, Civil Writ Jurisdiction Case No. 353 of 2021, Order dated 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Advocates before the Court:

For the Petitioner/s: Shivani Kaushik (In Person)

For the UOI: Dr K.N. Singh (ASG)

For the State: Anjani Kumar, AAG-4

For the Respondent 5: Mrs Binita Singh

For Respondent 6: Shivender Kishore, Sr. Advocate

For PMC: Prasoon Sinha