Tripura High Court
Case BriefsHigh Courts

Tripura High Court: In a batch of writ petitions filed for directing the State Government to provide similar Pension benefit as granted to the other similarly situated Tripura Government Undertakings, Arindam Lodh, J. has held that the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body, thereby observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government and the court cannot direct the State or its instrumentalities to formulate such policy

The issues in the present matter were, whether the court can direct the State government to provide necessary funds to the corporation, and whether the court can determine the amount of pension an employee may be entitled to.

The Court took note of the report of the expert committee constituted by the State government, wherein it is found that provision of providing pension benefit to these organizations has been made either by adopting the Civil Services (Pension) Rules, 1972 or introducing separate pension scheme. Further, these autonomous bodies had created a separate scheme and had been able to generate their own funds from their own contribution and opened subscriber accounts with specified schemes of the organization like Life Insurance Corporation of India (LICI), banks etc. Moreover, the petitioners have already retired from service, and are drawing pension under Employees Provident Fund scheme.

The Court further noted that the service conditions including pension scheme of the employees of these corporations are governed by their respective statutes, as the corporations are government undertakings. Further, all the corporations are utilizing the funds provided by the State government even to the extent of 100%, and have been running in loss, though, these organizations are supposed to be profit making as observed by the expert committee. Thus, the court held that “the employees of these statutory organizations cannot claim, as a matter of right, the pensionary benefits, as provided to few of the corporations who have been able to generate their own funds with one-time support from the state government”

Furthermore, the Court viewed that the petitioners cannot be treated equally to the employees of those organizations whose pension schemes have been introduced under different schemes with the assistance of some other organizations like LICI, banks, etc., as the pension of the members of the petitioner’s organization is based on the pension scheme subscribed by them during his/her service tenure in the respective organization and are primarily controlled and regulated by the Employees Provident Fund Organisation. Thus, the petitioners cannot complain of discrimination having regard to the equity clause enshrined under Article 14 of the Constitution of India.

Moreover, the Court observed that providing grants or other benefits to any of the organizations is a matter of policy decision of the government, the court cannot direct the State or its instrumentalities to formulate certain policy because it would have a scaring effect having huge financial implication, thus, it should be left to the expert committee.

The Court also observed that the grant of pensionary benefit is not a one-time payment and extension of such benefit is a recurring expenditure with continuous liability involving huge government funds. The State Government and the corporation should ultimately take a policy decision as to whether such benefits should be provided to its employees or not, as it is outside the court’s jurisdiction to make an enquiry regarding the fund status of the respective corporation or to choose a scheme suitable to the employees of such corporation without the aid and advice of the expert body.

Moreover, the Court viewed that it is a settled proposition of law that the interference of the judiciary to such a policy matter having serious financial implication and/or having a cascading effect is not at all warranted and justified. Further, it held that “the writ court while exercising the power of judicial review under Article 226 of the Constitution of India will not as a court of appeal sit over the well-reasoned report of the expert body following the well-neigh principle of self-restraint in the matter of policy decisions of the government”. Thus, the Court dismissed the writ petitions.

[All Tripura EPS Pensioners’ and Employees’ Association v. State of Tripura, 2022 SCC OnLine Tri 619, decided on 06.09.2022]

Advocates who appeared in this case:

For Appellant(s): Advocate S. Saha

Advocate S. Datta

For Respondent(s): Advocate KC Bhattacharjee

Advocate B.S. Bhowmik

Advocate S. Bhattacharjee

Advocate AK Pal

Advocate D. Sarkar

Advocate A. Chakraborty

Advocate HC Chakraborty

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of S.K, Mishra ACJ. & N.S. Dhanik J., dismissed a petition filed against Claim Petition No. 05/NB/DB/2014. The petitioners prayed for quashing of the judgment and order dated 20-06-2018 passed by the Uttarakhand Public Services Tribunal and to issue a writ in the nature of certiorari to quash the Seniority List dated 01-04-2011 of the Assistant Engineer (Civil).

Seniority list dated 01-04-2011 of the Assistant Engineer (Civil) was promulgated after due promotion of the petitioners in the cadre of Executive Engineer. The petitioners alleged that they were shown juniors to the private respondents in the cadre of the Assistant Engineer (Civil) in alleged disregard of Rule 8(3)2(i) of the Uttarakhand Government Servant Seniority Rules, 2002. After long litigation before the High Court and the Supreme Court, respondent 2 to 12 were allocated the Uttarakhand cadre, vide allotment order dated 12-08-2010 and previous seniority list was revised. Now they have been placed above the petitioners in the seniority list, were also granted notional promotion to the post of Executive Engineer.

The Tribunal had earlier held that the promotion granted to respondents was not granted on the basis of their S.T. quota, but they were granted notational promotion on the basis of their seniority. However, the learned counsel on behalf of petitioner argued that notional promotion is illegal in view of the amendment of the Uttarakhand Government Servant Seniority Rules, 2002 in the year 2009.

The Court acknowledged that the private respondents were allocated the cadre of Junior Engineer (Civil) in the State of Uttarakhand by the Central Government  on condition that in case there is no vacancy in the Scheduled Caste and Scheduled Tribe category, they shall be absorbed in future vacancies. Thereafter the question before the Court was that

whether the Junior Engineers of the Uttar Pradesh cadre, who were transferred to the Uttarakhand cadre, will become senior to those persons, who are deemed to be their seniors in the State of Uttarakhand, as they were directly recruited to the cadre of Assistant Engineer.” The Court approved the observations made by the Tribunal. The Court was of the opinion that there was hardly any scope for interference in this case.

The Court while examining the jurisdictional issue held that

the High Court shall only examine the jurisdictional issue of the Tribunal, or the jurisdictional error committed by the Tribunal“.

Furthermore, it was held that

The Tribunal may decide a case wrongly, but that will not entitle the High Court to sit in appeal and re-appreciate the matter and pass an order.” A HC cannot treat itself a court of appeal while entertaining writ of certiorari as it is a settled principle of law. Hence, the Hon’ble HC dismissed the writ petition and expressed it opinion that “this is not a case, where the High Court should exercise the jurisdiction of writ of certiorari, or writ of supervision under Articles 226 and 227 respectively, of the Constitution of India.”

[Jagmohan Singh v.  State of Uttarakhand, 2021 SCC OnLine Utt 1450, decided on 24-12-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Counsel for the petitioners. : Mr Shobhit Saharia

Counsel for the respondents. : Mr Pradeep Joshi, the Additional Chief Standing Counsel for the State of Uttarakhand.

Case BriefsForeign Courts

Supreme Court of New Zealand: A Bench comprising Glazebrook, O’ Regan and Ellen France, JJ. dismissed an application for extension of time to apply for leave to appeal, filed by a man convicted of gang-rape and murder whose appeal against conviction had been rejected by the Court of Appeal.

The appellant was sentenced to life imprisonment, along with two other men, for the rape and murder of a woman in 1994. He appealed unsuccessfully to the Court of Appeal against this conviction, and has applied out of time for leave to appeal against that decision in the instant case.

During trial, the appellant had denied any responsibility for the injuries inflicted on the victim and apart from his confession of having consensual intercourse with the victim, there was no forensic evidence linking him to the scene. Moreover, he was not known to the co-accused persons before the incident. In the absence of evidence of direct involvement, he had been charged for forming a common intention with the other men of raping the victim and assisting each other in the act, and that he was aware of the risk that one of the co-accused could inflict grievous injury on the woman for committing rape and/or avoiding detection.

The applicant’s main contention in the first appeal was that there was insufficient evidence for his conviction, particularly the murder verdict. He contended that the interests of justice favour an extension of time, since correction of a miscarriage of justice is more important than the finality of a decision.

The Court accepted the Crown’s submission that the delay in filing this application is significant and largely unexplained. Moreover, the Crown would be prejudiced by the delay, due to the deaths of the defence counsel at trial and the expert witness on confabulation at trial and the absence of the former’s files and of original disks.

The Bench found that “the strength of the proposed grounds of appeal is not such as to provide a compelling reason to extend time.” It found that there are alternative remedies, such as an investigation by the Criminal Cases Review Commission or an application to the Governor-General to exercise the royal prerogative of mercy, which provide a more suitable forum to resolve the factual issues raised by the instant application. The Court rejected the application for extension of time to apply for leave to appeal, stating that the criteria for granting a leave to appeal were not met. [Mikaere Oketopa v. R, [2020] NZ SC 75, decided on 31-07-2020]

Case BriefsForeign Courts

Supreme Court of United Kingdom: While deciding the instant appeal which challenged the validity of two patents seeking monopoly over the creation of a range of different types of transgenic mouse, the 5 Judge Bench of Lord Reed (President), Lord Hodge, Lady Black, Lord Briggs and Lord Sales, with a ratio of 4:1, reversed the Court of Appeal’s decision favouring Regeneron Pharmaceuticals (respondent in the instant appeal). The majority held that the Court of Appeal’s analysis of the issue diluted the sufficiency requirement which is the bedrock of patent law, thus tilting the balance of patent law in favour of patentees and against the public.

The question before the Court was that whether a product patent, the teaching of which enables the skilled person only to make some, but not all of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range. As per the facts of the case, in 2001 Regeneron filed patents for a new type of genetically modified mouse which was a hybrid version of the gene that produces antibodies, combining a section of the mouse’s genetic material with a section of genetic material from a human. The resulting mouse can be used to produce antibodies which are suitable for medical treatment in humans, but are sufficiently similar to mouse antibodies that they do not cause immunological sickness in the mouse. In 2013 Regeneron sued Kymab Ltd. (the appellant in the instant appeal), for infringement of its patents. Kymab was producing its own genetically modified ‘Kymice’, with a similar genetic structure to Regeneron’s mice. Kymab contended that the patents filed by Regeneron were invalid because they lacked ‘sufficiency’ which means that documents filed for the patent must be detailed enough to enable scientifically skilled readers to make the invention for themselves. The Court of Appeal however observed that patents filed by Regeneron had sufficient information to enable a skilled reader to insert some of the human material into a mouse’s genes, thereby upholding Regeneron’s patents on the principle of general application.

To analyse the question, the Court deemed it fit to delve into the complex technicalities of genetic engineering for medical purposes. The majority stated that a patent reflects a ‘bargain between the inventor and the public’. The inventor gains a time-specific monopoly over the making and use of a product and in return, the public gains the ability to make the product after the expiry of the monopoly. As part of this bargain, the inventor must publish ‘sufficient information to enable a skilled member of the public to make the product’. The patentees must not make broad claims. If they claim the right to make a range of products, sufficiency would mean they must disclose enough information to enable a skilled person to make the full range which is claimed; this means a relevant range that affects the utility of the product. It was noted that the amount of human material was an important factor that was thought to affect the diversity of useful antibodies that the mice would produce. Mice at the more valuable end of the range could not be made using Regeneron’s patents. Regeneron was claiming a monopoly that was far wider than its contribution to the art, which is why the patents granted to Regeneron are invalid due to the lack of sufficiency.

The dissenting judgment was delivered by Lady Black. She observed that,

“application of the sufficiency requirement depends on the nature of the individual invention and the facts of the case. The Court of Appeal characterised Regeneron’s invention as a principle of general application which solved the problem of immunological sickness, thereby meeting the sufficiency requirement as the invention was deployed in each mouse across the range, irrespective of the quantum of human material incorporated”. [Regeneron Pharmaceuticals Inc v. Kymab Ltd, [2020] Bus LR 1394, decided on 24-06-2020]      

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Full Bench of Lord Wilson, Lord Hodge, Lady Black, Lord Kitchin and Lord Sales upheld the appeal of the mother to retain her child in London and set aside the Court of Appeal’s order.

The mother and father were Israeli nationals who moved to London after marriage, with their daughter. Their marriage broke down shortly after the said moving. The father intended to go back to Israel and he insisted that the mother along with the child should also return there. However, the mother proposed to stay back in London.

The father applied for a summary order for the return of his young daughter from England to Israel under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, set out in Schedule I to the Child Abduction and Custody Act, 1985. After the High Court and the Court of Appeal both ruled against the mother, she appealed in the Supreme Court.

The issue was whether the Court of Appeal was entitled to make the summary order for the child’s return to Israel under the inherent jurisdiction and if so, whether it had exercised the said jurisdiction correctly. The Court accepted the mother’s argument that the welfare of the child is the paramount consideration in the making of such an order. The mother contested the order on several grounds claiming that the father had given a relevant consent to the retention of the child in London and there was a grave risk that a return to Israel would expose the child to physical or psychological harm, pursuant to articles 13(a) and 13(b) of the Convention respectively.

The Court found the exercise of the inherent jurisdiction by the Court of Appeal flawed. The Court of Appeal did not conduct an inquiry into whether the welfare of the child required her to be the subject of a summary order for the return to Israel.

In view of the above, the Court set aside the Court of Appeal’s order and allowed the mother to retain her child in England for the child’s welfare.[NY (A Child), In Re.; [2019] 3 WLR 962; decided on 30-10-2019]