Case BriefsHigh Courts

Allahabad High Court: Rajesh Singh Chauhan, J. while issuing the writ of mandamus commanded the opposite parties to reinstate the petitioner and post him at any place where the Competent Authority deems fit and proper within two weeks from the date of production of a certified copy of this order.

In the instant petition, the petitioner had assailed the impugned suspension order of 14.08.2019 passed by the Additional Director of Education (Basic), U.P., Prayagraj.

Counsel for the petitioner, Manish Kumar submitted that petitioner was working as a Steno-cum-Clerk when the suspension order was passed by Additional Director of Education (Basic) other than Joint Director of Education (Basic) who has the authority to suspend.

The Counsel objected to the contents of the instructions letter of 21.11.2019 produced by Counsel of the respondent, J.B.S. Rathour, wherein it was indicated that the petitioner was serving on the post of Personal Assistant Grade-II (as promoted) at the time of suspension. As proof, salary certificates and preliminary inquiry reports were provided.

Counsel drew the attention of this Court towards the Division Bench judgment of this Court in re Ashok Kumar Singh v. State of U.P, (2006) 3 UPLBEC 2247, in which it was categorically held that the order of suspension can be passed only by the Disciplinary Authority. However, the order to initiate the disciplinary proceedings may be passed by the Superior Authority. In ESI v. T. Abdul Razak, (1996) 4 SCC 708, the Supreme Court had laid down the same law as Ashok Kumar.

After considering the submissions of the parties and law laid down in various judgments put before the Court, the Court observed that suspension order of 14.08.2019 was not passed by the Competent Authority; therefore, it is liable to be quashed.[Jai Prakash Tiwari v. State of U.P., 2019 SCC OnLine All 4950, decided on 22-11-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Krishna Murari, C.J and Arun Palli, J. disposed of the writ petition after the consensus was drawn between the parties to present the case in front of the competent authorities.

A writ in the nature of mandamus was sought for commanding the respondent to restraint from awarding the tender/contract whose bid had been accepted.

Brief facts of the case were that FCI invited E-tenders for Handling and Transport Contractor for a period of 2 Years. The grievance was that the respondent submitted his bid as a small enterprise so as to avail the benefit admissible to Micro & Small Enterprises but it does not fulfill the requisite terms prescribed to be eligible in the said category. Thus, the FCI was restrained from awarding the work order to the respondent and resorted to an ad hoc arrangement of the movement of the food grains.

D.S. Patwalia and Kannan Malik, Counsels for the petitioner submitted that parties shall report to the competent authority and abide by the date and time indicated by the counsel.

J.S. Puri, Counsel for the respondent submitted that as time was the essence of the situation the parties should be directed to approach the Food Corporation of India.

The Court opined that as a consensus had emerged between the parties as only a period of 6 months remains out of initial period of 2 years for which contract to be awarded and it would rather be expedient if the FCI re-initiates the process, confining to the petitioner and respondent, with downward bidding from the lowest bid submitted by respondent. It was further submitted that it shall be open to the FCI to award the contract for a period of 6 months or for a longer period, as it may choose and decide.

The Court thus held that as the parties have drawn the consensus and nothing substantive remains, the petition was disposed of with the said terms to the parties. It was further added that the Court has not opined with the eligibility of the respondent to bid and thus the same was open to being adjudicated in appropriate proceedings if any.[Ambay Transport Co. v. FCI, 2019 SCC OnLine P&H 1267, decided on 17-07-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The instant petition was related to Section 29-A of Arbitration and Conciliation Act, 1996 entertained by Jyotsna Rewal Dua, J. where the petitioner sought an extension of time.

Factual matrix of the case was that when the dispute arose between the parties the matter was referred to a sole arbitrator who was Superintending Engineer. The Tribunal was unable to conclude the proceedings within the stipulated time of one year. Therefore the period of the passing of award was delayed by six months, but the extension was not fruitful as the period expired and yet the case was undecided. It was further suggested by the Arbitrator to apply to a Competent Authority for further extension of time.

Hence both the parties requested the Authority for extension of time for a further period of six months. The Authority further directed the parties to take steps in accordance with the amended provisions of the Act, 1996.

Anil Jaiswal and Rameeta Rahi, counsels for the respondents submitted a letter dated 10-07-2019, addressed to the respondents by the Executive Engineer, to the effect that their office had no objection in case the mandate of learned Arbitrator if was extended by six months.

The Court observed that, Section 29-A (4) and (5) which provided that, if the award was not made within the period specified or within the extended period, the mandate of the arbitrator was to be terminated unless the Court, either prior to or after the expiry of the period so specified, extended the said period. It was further observed that the proceedings were at a final stage, hence, the Court allowed the petition. The parties, through learned counsel representing them, were directed to co-operate in the arbitral proceedings and not to seek unnecessary adjournments before the Arbitrator and an endeavor was made to complete the arbitral proceedings well before the time granted.[Devki Nand Thakur v. State of H.P., 2019 SCC OnLine HP 988, decided on 12-07-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajan Gupta, J. dismissed the petition on the ground that order taken by the State Government cannot interfere when measures are required for the effective and efficient functioning of the department.

A writ in the nature of certiorari was filed to quash the order of transfer.

Abhilaksh Grover, counsel for the petitioner submits that he was appointed as the SDO Electrical in PWD, Punjab. That after the issue of notice of motion against the promotion of the Superintending Engineer, the petitioner was transferred many times even though the transfer was rendered infructuous and thereafter the increment was also stopped.  It was further submitted that department took the decision to revamp and in the view of that the petitioner transferred to the newly carved out post of Executive Engineer, Chandigarh. Executive Engineer (Mechanical), Ferozepur was transferred to Electrical Division, Ludhiana, where petitioner was posted. This action was arbitrary as it resulted in the transfer of the petitioner to the post of Executive Engineer (Technical), in the office of Chief Engineer (Electrical), Chandigarh. According to him, this exercise was undertaken with malafide intention to dislodge the petitioner. Hence preferred this application.

Ishneet Kaur, counsel for the Respondent submitted that the conduct of the petitioner was not good. A news item showed that he had alleged to misbehave with the officials present at the Circuit House. The disciplinary action was also said to be taken against the petitioner. A charge sheet had been issued to him which was also pending against the petitioner. It was further submitted that decision was taken for adjustment/transfer of technical staff of Electrical and Mechanical Wings in such a manner as to ensure smooth functioning of both the wings. The proposal was made due to objections of AG (Audit) regarding wasteful expenditure on establishment of Mechanical Circle.

The Court thus opined that transfer of the petitioner has been made in the normal course. “The State Government is always at liberty to resort to such measures to streamline the functioning of its various wings to curtail unproductive expenditure and utilize services of idle staff. Such measures are required for efficient and effective functioning of the department.” Thus, it was concluded that the transfer of the petitioner appeared to be part of the exercise undertaken by the Government. The Court also held that the no ground for interference in the impugned order passed by the competent authority is made out as entire facts and circumstances shows that the petitioner was a professional litigant as he raises a grouse by way of a writ petition every time he is sought to be transferred and thus the petition was dismissed.[Jatinder Singh Chhina v. State of Punjab, 2019 SCC OnLine P&H 851, decided on 06-06-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. disposed of a petition considering the long litigation between the parties and gave directions to the competent authority.

In the present matter, the petitioner was an unemployed divorced lady who got selected for the post of Anganwadi worker but an appeal was made against the same by the Respondent 4 (who has been working on the post for more than 6 years) which even got accepted and the selection was set aside. Being aggrieved by the said order, the petitioner maintained appeal before the learned Divisional Commissioner, which was dismissed. Thereafter, the petitioner against the impugned order passed by the learned Divisional Commissioner maintained writ petition before the Court. Shalini Thakur, counsel for the petitioner argued that since the petitioner was a divorcee, therefore could not be treated as a member of the family for deciding the income of the family, which was taken as the basis for rejection of appointment. And since she is a single mother she had a son to look after all by herself. While the counsels for the respondents S.C. Sharma, Shiv Pal Manhans and P.K. Bhatti, Additional Advocate Generals with Raju Ram Rahi, Deputy Advocate General, contended that the petitioner has given her father’s address, which makes it evident that she was, in fact, residing with her father. And, that the Tehsildar also gave his findings establishing the same. Further, it was also alleged that the petitioner has remarried.

The Court after taking into consideration the long litigation between the parties, the situation of Respondent 4, who is working for more than 6 years on the post and the fact that the petitioner is a divorcee, who cannot be taken as a family member of her father for the purpose of income held and directed that for the interest of justice to be met the competent authority to consider the case of the petitioner for appointment as Anganwadi worker in and around the place of her residence in near future.[Heera Mani v. State of H.P., CWP No. 2772 of 2017, decided on 21-05-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and N.S. Dhanik, J. contemplated a writ petition filed in pursuant to the order passed by Court in 2019, which directed the Project Director to prepare a set of instructions, in consultation with the concerned officials, for effective implementation of the Mid-day Meal Scheme, directed each school to strictly adhere thereto, and  periodical inspections to be caused by a separate inspection staff with a view to satisfy himself that the funds earmarked for this Scheme were not misappropriated, an affidavit was filed by the Project Director enclosing thereto the Government Order in this regard.

The petitioner i.e. the Project Director in the affidavit stated that, immediately after the Government Order was issued, the Secretary and School Education had issued directions to all District Magistrates of Uttarakhand for implementation of the said guidelines.

Siddharth Sah, learned counsel for the petitioner contended that, Principals of the said schools where lapse were noticed and implementation of Scheme was ineffective, were let off with a mere adverse entry. The counsel was satisfied with the guidelines issued by State, but highlighted certain loopholes as well in the practical approach.

The Court observed considerable force in the submissions of the petitioner and noted that undue leniency was shown to those who failed to discharge the duties entrusted to them, of effective implementation of the Scheme, which may well embolden others to be negligent or to misutilize funds earmarked for the Scheme. The Court advised to take more stringent disciplinary actions against the concerned Principals and officers. It directed the first respondent to consider giving wide publicity to the guidelines now framed for effective implementation of the Scheme, so that all stakeholders are made aware of the duties which those, in charge of the Scheme, were required to discharge.

The Court further held, “in the exercise of its jurisdiction under Article 226 of the Constitution of India, this Court would, ordinarily, not sit in judgment over the decision of the competent authority in imposing punishment. We see no reason, therefore, to now direct the authorities to impose a more stringent punishment on the Principal concerned.”[Somendra Kumar v. State of Uttarakhand, 2019 SCC OnLine Utt 359, decided on 14-05-2019]

Case BriefsHigh Courts

“Without adherence to sustainable development, life of future generations will be in jeopardy”

Calcutta High Court: A Division Bench comprising of CJ Jyotirmay Bhattacharya and Arijit Banerjee, J., addressed PILs concerning the felling of trees due to the construction of ‘Railway Over-Bridgealong with expansion of ‘National Highway 112’.

The present petition was filed against the State to obtain restraining orders against them for felling of trees for the purpose of constructing ROBs and expanding National Highway 112. The contentions submitted by the petitioner was that the required permissions which have been obtained by the respondents were granted to them without the compliance of provisions of law along with no Environment Impact Assessment being carried out.

It has been alleged that the provisions of West Bengal Trees (Protection and Conservation in Non-Forest Areas) Act, 2006 have been flouted too. Further, it was stated large number of Mehogini trees were proposed to be felled, but no permission was obtained for the same. While referring to Sriram Saha v. State of W.B., 1998 SCC OnLine Cal 404, it was observed that the decision called for State legislature to promulgate the 2006 Act. Further, the counsel submitted that the “entire process was carried out in a perfunctory manner” and the requirements of law were given a complete go-bye.  Intellectuals Forum, Tirupathi v. State of A.P., (2006) 3 SCC 549, it was cited in regard to “Duty of the State Respondents to protect the environment and the concept of sustainable development”.

The High Court while concluding its decision on intensive consideration of the contentions of the parties along with the facts of the case and primarily focussing on the importance of sustainable development in its true sense stated that to promote and ensure sustainable development is one of the objects of the 2006 Act. Necessary permission has to be obtained from the competent authority and such permission needs to be granted only after proper enquiry. The Court stated that Section 9(2) of the above mentioned Act imposes an obligation on a developer to carry out compensatory plantation within such period as may be specified in the certificate of clearance before the developing project is initiated and in the present matter it has been analyzed through the provisions that State is not a developer within the meaning of Section 9 of the Act.

Therefore, Section 8 of the Act being applied in the matter would require the State to plant two trees for every felled one, for which the State has stated that it would plant 5 for every tree felled. Felling of 356 trees is necessary for implementing important public project of constructing ROBs and simultaneously respondent shall carry compensatory plantation. The Judgment and order have been stayed as it was challenged by the petitioners for a period of 3 weeks. [Assn. for Protection of Democratic Rights v. State of W.B.,2018 SCC OnLine Cal 5898, decided on 31-08-2018]

Case BriefsHigh Courts

Karnataka High Court: While considering the petitions filed under Article 226 and 227 of the High Court by petitioners who were aggrieved of rejection of their admission to LL.B. course by the BCI, the Single Bench of L. Narayana Swamy, J held that the action on the part of BCI is just, sound and proper and is in accordance with the law.

The petitioners in the present case were denied admission to LLB course on one or the other grounds. This action was alleged to be violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. The petitioners had questioned (i) the authority of the BCI in deciding qualification for LLB and (ii) justification of rejection of admission for the non-compliance of eligibility criteria.

This Court, while analysing the facts and circumstances of the case, in light of the powers and functions of the BCI, dismissed the petitions and upheld the power of Bar Council in regulating the eligibility criteria and said that the qualification obtained by Open University or private study, is not a qualification for the purpose of consideration. The Court also relied on the Supreme Court’s observance in Baldev Raj Sharma v. Bar Council of India,1989 Supp (2) SCC 91 to hold that the Bar Council of India is concerned with the standard of the legal profession and education in the country and is thereby empowered to set regulations for the same. [Sudha Rani K v. State of Karnataka, 2016 SCC OnLine Kar 7358, decided on 16.12.2016]

Case BriefsSupreme Court

Supreme Court: Explaining the Section 19 of the Prevention of Corruption Act, 1988, the Bench of Ranjan Gogoi and P.C. Pant, JJ held that the sanction cannot be held invalid only for the reason that in the administrative notings, different authorities have opined differently before the competent authority took the decision in the matter.

In the present case where the appellant, an IRS officer, was involved in the disproportionate assets matter, the CVC had recommended that the sanction for prosecution be granted, however, the Finance Department later referred the matter to Department of Personnel and Training (DoPT) which observed that administrative warning could be issued to the appellant for not intimating the transactions to Finance Department. The DoPT later conveyed that insufficiency of evidence can be tested in the court of law and sanction for prosecution can be granted. Finally, the Finance Department granted sanction for prosecution of the appellant.

The Court further said that what is required under Section 19 of the Prevention of Corruption Act, 1988 is that for taking the cognizance of an offence, punishable under Sections 7, 10, 11, 13 and 15 of the Act committed by the public servant, is necessary by the Central Government or the State Government, as the case may be, and in the case of a public servant, who is neither employed in connection with affairs of the Union or the State, from the authority competent to remove him. It was further explained that sub-section (2) of Section 19 of the Act provides that where for any reason whatsoever any doubt arises as to whether the previous sanction, as required under sub-section (1) should be given by the Central Government or the State Government or any authority, such sanction shall be given by that Government or authority which could have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. [Vivek Batra v. Union of India, 2016 SCC OnLine SC 1146, decided on 18.10.2016]

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (PMP Act), the Court said that the definition “Corporation” is wide enough to take within its sweep entities in private sector as well. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression “Corporation”. This definition is designedly kept wide enough to include all such possibilities and there is no reason for giving any restricted meaning to such expression.

Regarding the contention that “Competent Authority” is given wide ranging powers under Section 5 of the PMP Act, the Court said that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public confidence. Neither the Act nor the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority nor do they deal with any transparent process for such appointment. Stating that like the PMP Act, the Metro Railway (Construction of Works) Act, 1978 also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition, the Court noticed that the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind as is the case under the Metro Act . If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India.

The Bench of V. Gopala Gowda and U.U. Lalit, JJ, however, clarified that the actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government should step in immediately and remedy the situation with appropriate measures. [Laljibhai Kadvabhai Savaliya v. State of Gujarat, 2016 SCC OnLine SC 1101, decided on 05.10.2016]