Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal concerning the selection list of NEET-MDS-2021, candidates belonging to Union Territories of J&K and Ladakh, issued by the Board of Professional Entrance Examination (BOPEE), the Division Bench of Pankaj Mittal, C.J., and Wasim Sadiq Nargal, J., observed that the principle enshrined in Section 10 of J&K Reservation Act, 2004 unambiguously provides that there shall be no bar for admission of a candidate of reserved category against the seat other than, or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category.

Facts and Legal Trajectory of the case: BOPEE issued the list of selected candidates for NEET-MDS-2021 via notification No. 100-BOPEE of 2021, dated 03-10-2021 to the extent it denies the reservation quota in the MDS Course provided for the reserved category of Children of Defense Personal/Military Forces and State Police Personal.

The respondent, a candidate belonging to the category of Children of Defense Personal/Military Forces and State Police Personal, claimed that he was next in the order of merit to Dr. Rasiq Mansoor (MRC candidate), who, by dint of his merit, was placed in the general category. The respondent was aggrieved that in terms of the impugned selection list, the BOPEE had filled up only 41 seats by selection of equal number of candidates for different specialties of MDS Courses, but in doing so, the official respondents have not given 2% reservation earmarked for CDP/JKPM Category.

It was further stated that out of 42 seats notified for admission, 1 seat was allocable to the category of CDP/JKPM. However, no candidate from CDP/JKPM Category was selected, therefore, the mandate of reservation provided under the J&K Reservation Act, 2004 and Rules framed thereunder, were violated.

The Writ Court had allowed the petition consisting of the afore-stated grievances and had held that the respondent (petitioner therein) is entitled to admission in the MDS Course in the discipline that was last leftover after the Open Merit Category candidates 20 in number were allotted the seats in various disciplines as per their merit and preference. The Court, with a view to undo the wrong done to the petitioner, directed the BOPEE to keep one seat of MDS reserved in the next session in the discipline to which the petitioner was entitled to in the instant admission.

Core Issues arising in the Appeal:

  • Whether in the facts of the present case, Section 9 and 10 of the 2004 Act and Rules as amended till date, are required to be applied? If yes, then how Rule 15 and 17 of the Reservation Rules is required to be interpreted and applied.
  • Whether after coming to the conclusion by the learned Writ Court about applicability of the Reservation Rules and Reservation Act and its incorrect interpretation on part of the Board before the Writ Court, the relief granted in favour of the respondent is in tune with the settled legal position?
  • Whether the directions issued by the learned Single Judge to the extent of reserving one seat of MDS in the next session in the discipline to which respondent was entitled to, but was not granted because of the fault attributable to the appellants (BOPEE) is correct, in absence of arraying the affected persons as party respondents?

Analysis and Decision: Perusing the appeal the Court made the following observations’

  • The Court pointed out that Sections 9 and 10 of J&K Reservation Act, 2004, were enacted to give effect to the law settled by the Supreme Court and this High Court itself. The provisions are unambiguous in nature. The Court noted that BOPEE did not act in conformity with the mandate and spirit of Section 9 and 10 of the 2004 Act, as Dr. Rasiq Mansoor, who was figuring at S. No. 5, was entitled to be considered in the open merit, though, he had the option for taking the benefit of his reserved category status for the purpose of making the choice of the discipline/college.
  • Analyzing J&K Reservation Rules, 2005, the Court stated that Rule 17 makes abundantly clear that the reserved category candidate, if selected against open merit seat (known as MRC), is entitled to be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit-cum-preference. Explanation to Rule 17 explicitly provides that the term leftover discipline/stream/college means such number of discipline/stream/colleges that would become available after allotment of seat to the last open merit candidate as allocable under Rules. The Court further pointed out that bare perusal of Rule 15 along with the Proviso to Rule 17 also makes it clear that in respect of PG courses, the leftover disciplines/streams/colleges, shall be added to the pool of reserved category candidates in terms of Rule 15 and allotted on the basis of merit-cum-preference. Rule 17, Note (1), makes the position further clear by providing that in case the last open merit candidate belongs to any reserved category, i.e., if the last candidate in the open merit is MRC, in that eventuality, Rule 17 will have no application. Then in such case, the said candidate shall be considered first in the open merit category and subsequently, be allotted the discipline/stream/college of his choice/preference, if available.
  • The Court pointed out that in the instant case, the MRC candidate, Dr. Rasiq Mansoor, had given only one choice insofar as the discipline of MDS and accordingly, he was allotted the aforesaid discipline as per his merit/preference, by making his choice as a CDP/JKPM category candidate. The movement of Dr. Rasiq Mansoor from open merit category to CDP/JKPM category for the purpose of making the choice of the discipline resulted in one discipline of MDS available in open merit. The BOPEE, upon allotting a seat to MRC in open merit was under a legal obligation to allot the seat to the respondent, being next meritorious candidate in CDP category, which in the present case has not happened and action of appellants, as such, is violative of Rule 15 of the Reservation Rules. “The leftover discipline in the present case would shift and has to be added to the pool of the reserved category candidates as envisaged under Rule 15 and was required to be allotted on the basis of inter se merit/preference amongst the reserved category candidates.”
  • The Court stated that the BOPEE committed an illegality in not pushing the respondent, up to the selected under the category of CDP/JKPM, when, the only more meritorious candidate in the category than the respondent, i.e., Dr. Rasiq Mansoor, had succeeded in making a place in the open merit on the strength of his merit. Thus, the BOPEE made an error in interpreting Rule 15 and 17 to the disadvantage of the respondent.
  • The Court relied upon its precedent in Mehdi Ali v. State, 2019 SCC OnLine J&K 1020, wherein it was observed that, “Rule 17 recognizes the right of meritorious reserved category candidate, who on the strength of his merit comes in the open merit, still makes an option of discipline/stream/college of his choice as per his status as reserved category candidate. He would not count a seat of the reserved category,but would occupy one seat in the open merit. This would not disturb the percentage of reservation provided for the general category and the reserved categories in any manner.
  • With the afore-stated observations, the Court dismissed the instant appeal and held that the next candidate in the order of merit in the category of CDP/JKPM i.e., the respondent, was entitled to be selected against one seat earmarked for the category of CDP/JKPM. The BOPEE, has not carried out the mandate of Sections 9 and 10 of the 2004 Reservation Act in its letter and spirit as they have not selected any candidate in the category of CDP/JKPM for which 1 out of the 42 notified seats, was reserved.

[UT of J&K v. Dr. Bhat Ab. Ubran Bin Aftab, 2022 SCC OnLine J&K 737, decided on 13-09-2022]

Advocates who appeared in this case :

Appellants: D.C. Raina, Advocate General with Hilal Ahmad Wani, AAG

Respondents: Syed Faisal Qadiri, Sr. Advocate with Huzaif Ashraf Khanpuri, & Mansab Wadoo, Advocates

*Sucheta Sarkar, Editorial Assistant has prepared this brief

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where the mother (‘applicant’) who is in judicial custody for an alleged grave offence seeks interim bail to get her child admitted in a school, Swarana Kanta Sharma, J. took suo motu cognizance and directed Delhi police to ensure admission of the child recognizing right to education as a fundamental right of the child. The bail application was thus directed to be withdrawn and a compliance report was sought regarding admission.

The present application was filed by the petitioner seeking interim bail for two weeks in FIR registered under sections 302/365/292/397/411/120-B/201 & 34 Penal Code, 1860 (‘IPC’) for alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain. The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11-07-2021. The application was preferred by the mother of the child on the grounds that she is concerned about the admission to a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted to any school.

It was brought to the attention of the court that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. Investigating Officer (IO) also verified the same stating that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.

The Court noted that once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. Thus, the child must get admitted in a school at the earliest so that the shadow of nothing unpleasant happening falls upon the child’s life to darken her future.

The Court further noted that in the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is the education of the child. Thus, court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year 2022-23.

The Court directed the SHO concerned to get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education and asked the principal of the school to extend full cooperation for the admission of the child. The compliance report is directed to be filed within 10 days.

[Kamini Arya v. State of NCT of Delhi, 2022 SCC OnLine Del 2367, decided on 03-08-2022]

Advocates who appeared in this case :

Ms. Anu Narula, Advocate, for the Petitioner;

Mr. Manoj Pant, APP for the State with Inspector Devendra Singh, P.S. Mohan Garden, Advocates, for the State.

*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: After some NEET-PG 2021 candidates, who could not get admission despite participating all the rounds of counsellings, sought for Special Stray Round of counselling with respect to the unfilled 1456 seats, the bench of MR Shah* and Anirudhha Bose, JJ has refused the request after observing that,

“The process of admission and that too in the medical education cannot be endless. It must end at a particular point of time. The time schedule has to be adhered to, otherwise, ultimately, it may affect the medical education and the public health.”

The NEET-PG 2021 examination was conducted on 11.09.2021. The result was declared on 28.09.2021. As per the earlier counselling scheme, there were two rounds of counselling for All India Seats as well as State Quotas seats respectively. However, as per the modified counselling scheme, counselling is to be carried in four rounds and no seats were to be reverted to States. It is important to note that at the end of the four rounds of counselling, each for All India Quota and State Quotas (in all eight rounds of counselling) and thereafter one another round of counselling was conducted, out of 40,000 seats, 1456 seats have remained vacant, out of which approximately, more than 1100 seats are non-clinical seats, which every year remain vacant.

The Supreme Court observed that,

“… when the Medical Counselling Committee and the Union of India have to adhere to the time schedule for completing the admission process and when the current admission of NEET-PG-2021 is already behind time schedule and ever after conducting eight to nine rounds of counselling, still some seats, which are mainly non-clinical courses seats have remained vacant and thereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further Special Stray Round of counselling, it cannot be said that the same is arbitrary.”

The Court also took note of the fact that after closure of the last round of counselling on 07.05.2022, the entire software mechanism has been closed and the security deposit is refunded to the eligible candidates. The admission process for NEET-PG-2022 has already begun, the results for the NEET-PG-2022 has been announced on 01.06.2022 and as per the time schedule, the counselling process is going to start in July, 2022.

Noticing that if one additional Special Stray Round of counselling is conducted now, as prayed, in that case, it may affect the admission process for NEET-PG-2022, the bench held,

“The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.”

[Dr. Astha Goel v. Medical Counselling Committee, 2022 SCC OnLine SC 734, decided on 10.06.2022]

*Judgment by: Justice MR Shah


For Petitioners: Senior Advocates Rachna Shrivastava and A.D.N. Rao, Advocates Avijit Mani Tripathi and Kunal Cheema

For UOI: ASG Balbir Singh,

For Medical Counselling Committee and National Board of Examinations: Advocate Gaurav Sharma

Legal RoundUpSupreme Court Roundups

Most Read story of the Month

Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.”

Read more…

Top Stories

Supreme Court upholds the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010

“Aspirations of any country cannot be fulfilled on the hope of foreign donation”

Read more…


Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’

The Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre¬school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

Read more…


‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees battle

“The dispute is now of an antiquity tracing back to nearly four decades. Finality has to be wrung down on the dispute to avoid uncertainty and more litigation. Nearly thirty-one years have elapsed since 1991. We have come to the conclusion that the claims of those workers who are duly found upon verification to meet the threshold conditions of eligibility should be resolved by the award of monetary compensation in lieu of absorption, and in full and final settlement of all claims and demands.”

Read more…


Supreme Court stays Delhi’s Jahangirpuri demolition drive

The demolition drive has been launched by Delhi municipal authorities in Jahangirpuri area, which witnessed communal violence recently.

Read more…


Lakhimpuri Kheri Violence| ‘Allahabad High Court granted bail in a tearing hurry’; Supreme Court cancels Ashish Mishra’s bail

“Victims cannot be expected to be sitting on the fence and watching the proceedings from afar.”

Read more…

Also Read: From investigation till culmination of appeal/revision, victim has right to be heard at every step post the occurrence of an offence


More Stories

Solitary Confinement of Death Row Convicts: Judicial officer to probe to apprise Supreme Court of ground reality

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration(1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

Red more…


Mere differential treatment cannot on its own be termed as an “anathema to Article 14 of the Constitution”

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.

Read more…


Interference with Government Tenders makes the State and its citizens suffer twice. Courts should refrain from staying Government tenders even in case of total arbitrariness

“The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view.”

Read more…


“State cannot hide behind delay & laches to evade it’s responsibility after acquiring land. There cannot be a ‘limitation’ to doing justice”, holds SC; Land Owners get compensated after decades

“While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.”

Read more…


Amalgamation does not necessarily nullify tax assessment as only the outer shell of the amalgamating company gets destroyed but the business and the adventure lives on

It is essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings.

Read more…


SC sets aside Bombay HC’s direction to acquire a land almost 20 years after finalisation of development plan

“Land owner cannot be deprived of the use of the land for years together”

Read more…


Is there a policy rewarding public prosecutors for securing death sentence? Supreme Court asks M.P. government in a Suo Motu case

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

Read more…


Insertion of meritorious OBC candidates into general category list without disturbing the appointment of general category candidates? Supreme Court strikes balance

The Court was deciding a case where a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process.

Read more…


Lapse of a long period in deciding appeal cannot be a ground to award disproportionate and inadequate punishment

“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”

Read more…


Caste can be the starting point for providing internal reservation but not the sole basis

In a case relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao* and BR Gavai, JJ has observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

Read more…


Can an establishment employing about 8000 workers be shut down for not obtaining Environmental Clearance, even when it acts in compliance with required pollution norms?

“An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.”

 Read more…


Acquitted in the criminal case but employer still going ahead with the disciplinary proceeding? Read the law laid down by Supreme Court

“The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment.”

Read more…


Reduction in stamp duty cannot lead to revenue splitting an instrument into two once it has already been charged under a correct charging provision

After having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a).

Read more…


SC allows Tamil Nadu to grant 50% reservation for in-service doctors in Super Specialty Medical Courses

The Court, hence, held that no case was made out for continuing the interim protection which was granted for the academic year 2020-2021 vide interim order dated  27th November, 2020.

Read more…


Medical College| Does permission to start post graduate courses for subsequent academic year result in effacing deficiencies found in previous academic year? Supreme Court answers

If an institution is seeking grant of permission for undertaking admissions for the academic session 2022-23, it must fulfill the requirements of minimum standard as on 31st December 2021.

Read more…


2006 Meerut Fire Tragedy| Organizers held guilty! 60:40 liability to compensate victims fixed on Organizers & State

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

Read more…


Husband suspects paternity of child; Supreme Court allows DNA test while granting conditional compensation of 30 lakhs to wife if suspicion proves to be wrong

In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

Read more…


Medical Admissions| SC directs allotment of in-service PG seat to Lady Doctor with experience in Madhya Pradesh’s Naxal/Tribal regions

The appellant, a mother of a 5-year-old, has been working as a Medical Officer with the State of Madhya Pradesh on a regular basis for over 11 years. Out of the 11 years of service, she has served for 6 years in District Betul which is a notified tribal district and has served in a Community Health Centre at Katangi in the District of Balaghat for the remaining period.

Read more…


Even a single crime committed by a ‘Gang’ is sufficient to prosecute an accused under the Gangsters Act

“The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.”

Read more…


Delinquent postal officer voluntarily deposits defrauded amount with interest after detection of fraud. Was he able to escape punishment of removal from service?

“Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee.”

Read more…


Appointment of Teachers| Can obtaining a degree in one branch of a subject be considered equivalent to obtaining degree in the subject as a whole?

“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”

Read more…


It’s time for the University to put an end to ‘Yuddh Kand’ and allow appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’

“The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.”

Read more…


No right to keep goods and wares at hawking place overnight; Supreme Court dismisses plea of hawker of Sarojini Nagar market

The petitioner was a hawker in the Sarojini Nagar Market, who had approached the Delhi High Court seeking permission to leave his goods and wares at the place of hawking overnight.

Read more…


Forum Shopping and Power of High Court u/s 482 CrPC; Supreme Court tells when to convert a civil complaint into criminal case

“Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law.”

 Read more…


Person being the highest bidder deposits sale amount for auction property and obtains injunction against Municipality; SC declares the sale non-est for lacking government sanction

The Court opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

Read more…


2G Spectrum Scam| Supreme Court rejects ex-licensee’s refund demand of Rs 1454.94 crores Entry Fee, holding him faulty as a confederate of fraud

“…as a beneficiary and confederate of fraud, the appellant could not be lent the assistance of this Court for obtaining the refund of the Entry Fee.”

Read more…


Candidates can’t claim appointment to unfilled posts in absence of provision for waiting list

“In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment.”

Read more…


Income Tax| If such orders continued to be passed, we will impose substantial costs on Assessing Officer which will be recovered from his/her salary: Read why SC stayed Bombay HC’s order

The Division Bench comprising of M.R. Shah and B.V. Nagarathna, JJ., stayed the impugned order of Bombay High Court wherein the High Court had quashed the assessment order under Income Tax Act, 1961 and had further cautioned that if such orders continued to be passed, the Court will be constrained to impose substantial costs on the concerned Assessing Officer to be recovered from his/her salary.

Read more…

Cases Reported in SCC

2022 SCC Vol. 2 Part 4

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment.

2022 SCC Vol. 3 Part 1

In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,

“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”

2022 SCC Vol. 3 Part 2

In 2022 SCC Volume 3 Part 2, read a very interesting case wherein a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.


Case BriefsSupreme Court

Supreme Court: In a case where a student had completed 9 semesters of her academic course including clinical training in the medical colleges in China but due to the outbreak of COVID-19 pandemic, one semester was completed online and was granted MBBS degrees without any practical and clinical training in physical form, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that without practical training, there cannot be any Doctor who is expected to take care of the citizens of the country. Hence, the decision of the National Medical Commission not to grant provisional registration cannot be said to be arbitrary.

It was argued before the Court that since the student has been declared qualified by the Foreign Institute, the only requirement before provisional registration is qualifying in the Screening Test in terms of the Screening Test Regulations, 2002. As she has qualified such Screening Test, therefore, the condition stands satisfied and hence, the decision of the Medical Council not to grant provisional registration is not justified in law. However, as admitted by the student that she had not undergone the practical and clinical training in the physical form, though she had undergone the course through online mode for the entire duration.

The Court observed,

“No doubt, the pandemic has thrown new challenges to the entire world including the students but granting provisional registration to complete internship to a student who has not undergone clinical training would be compromising with the health of the citizens of any country and the health infrastructure at large.”

Concerned with the fate of the student and other similarly situated students, the Court said such national resource cannot be permitted to be wasted which will affect the life of young students, who had taken admission in the foreign Institutes as part of their career prospects. Therefore, the services of the students should be used to augment health infrastructure in the country. Thus, it would be necessary that the students undergo actual clinical training of such duration and at such institutes which are identified by the appellant and on such terms and conditions, including the charges for imparting such training, as may be notified by the National Medical Commission.

Therefore, the Court directed the National Medical Commission

  1. to frame a scheme as a one time measure within two months to allow the student and such similarly situated students who have not actually completed clinical training to undergo clinical training in India in the medical colleges which may be identified by the National Medical Commission for a limited duration as may be specified by the National Medical Commission, on such charges which the National Medical Commission determines.
  2. It shall be open to the National Medical Commission to test the candidates in the scheme so framed in the manner within next one month, which it considers appropriate as to satisfy that such students are sufficiently trained to be provisionally registered to complete internship for 12 months.

[National Medical Commission v. Pooja Thandu Naresh, 2022 SCC OnLine SC 528, decided on 29.04.2022]

*Judgment by: Justice Hemant Gupta


For National Medical Commission: Senior Advocate Vikas Singh

For Student: Senior Advocate S. Nagamuthu

Case BriefsSupreme Court

Supreme Court: In a case relating to the appointment of the Vice-chancellor of the Sardar Patel University where the search committee had gone against the eligibility criteria prescribed by the UGC Regulations, the bench of MR Shah* and BV Nagarathna, JJ has held that the eligibility criteria when once fixed by the UGC under its regulations would apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States.

Factual Background

Regulation 7.3.0 of UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 prescribes that a person shall have ten years of teaching work experience as a professor in the University system. It also provides for constitution of a Search Committee consisting of a nominee of the Visitor/Chancellor, a nominee of the Chairman of UGC, a nominee of Syndicate/Executive Council of the University. The Search Committee has to recommend the names of suitable candidates for appointment as Vice Chancellor of a University

The petitioner argued before the Court that ignoring Regulation 7.3.0 of the UGC Regulations, a   Search Committee was constituted under Section 10(2)(b) of the Sardar Patel University Act, 1955 (SPU Act) with no nominee of the Chairman of the UGC. According to the petitioner, even as per Section 10(2)(b), the Search Committee has only the authority to recommend a panel of suitable candidates. The Search Committee, in the present case, exceeded its jurisdiction and prescribed its own eligibility criteria for the   post of Vice Chancellor by diluting the eligibility criteria laid down in the UGC Regulations, 2010.


The UGC Regulations are enacted by the UGC in exercise of powers under Section 26(1)(e) and 26(1)(g) of the UGC Act, 1956. Even as per the UGC Act every rule and regulation made under the said Act, shall be laid before each House of the Parliament. Therefore, being a subordinate legislation, UGC Regulations becomes part of the Act. In case of any conflict between State legislation and Central legislation, Central legislation shall prevail by applying the rule/principle of repugnancy as enunciated   in Article 254 of the Constitution as the subject ‘education’ is in the Concurrent List (List III) of the Seventh Schedule of the Constitution.

Further, the eligibility criteria when once fixed by the UGC under its regulations would apply to all the universities which are aided by the UGC to be bound by the said regulations even in the absence of the same being incorporated under the respective universities Act of the respective States.

The Court noticed that the State of Gujarat did not take note of the communication from the UGC and instead the University left to the sweet will of the search committee to prescribe eligibility criteria for the appointment of the Vice-Chancellor of the University.

In such circumstances, the Court observed,

“… prescribing the eligibility criteria shall not be left to the sweet will of the search committee. It may lead to arbitrariness and different search committees in absence of any statutory guidelines and/or   prescription, may prescribe different eligibility criteria.”

[Gambhirdhan K. Gadhvi v. State of Gujarat, 2022 SCC OnLine SC 256, decided on 03.03.2022]

*Judgment by: Justice MR Shah


For petitioner: Senior Advocate IH Syed

For UGC: Advocate Manoj Ranjan Sinha

For University: Senior Advocate Vinay Navare

For Vice-Chancellor appointee: Advocate Gaurav Agrawal

For State: Advocate Ruchi Kohli

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., while addressing a matter with regard to the tender document, made an observation that,

“Every decision of the administrative authority which may not appear plausible to the Court cannot, for that reason alone, be called arbitrary or whimsical.”

Two appeals against the same decision of the Delhi High Court were filed and taken up for disposal.

In the said decision, Delhi High Court had disapproved the technical disqualification and consequential rejection of the technical bid of the petitioner in respect of a tender floated by the appellant.

Another appellant was said to be the bidder (Agmatel) whose offer was accepted by NVS after technically disqualifying the writ petitioner.


Whether the Delhi High Court was justified in interfering with the view taken by the tender inviting authority in rejection of the technical bid of writ petitioner for want of fulfilment of ‘Past performance’ criterion about supply of ‘same or similar Category Products’ of 60% of bid quantity in at least one of the last 3 financial years?


The dispute revolved around a Notice Inviting Tenders (NIT), as issued by the appellant-NVS on the Government online portal i.e., Government e-market Place for the supply of 68,940 Tablets for school children.

The terms and conditions that the Court is concerned with from the NIT were pertaining to ‘Experience’ and ‘Past Performance’ of the bidders.

During the pendency of the writ petition, it was informed by the tender inviting authority that the contract in question had been awarded to the other bidder who was found qualified and successful; and the application for impleadment made by the said successful bidder-Agmatel was allowed by the High Court.

Analysis, Law and Decision

Interpretation of Tender Document: Relevant Principles 

The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of the tender document, has been the subject matter of discussion in various decisions of this Court.

Supreme Court remarked that,

“Author of the tender document is taken to be the best person to understand and appreciate its requirements; and if its interpretation is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint.”

Adding to the above, Court stated that the Court cannot technically evaluate or compare and even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the Constitutional Court, that by itself would not be a reason for interfering with the interpretation given.

Supreme Court opined that the impugned Judgment could not be sustained.

“….which particular product was to be treated as similar category product, could not have been a matter of interpretative exercise by the Court, particularly when the view taken by the tender inviting authority and its evaluation committee has not been shown to be absurd or irrational or suffering from mala fide.”

Further, the Bench observed that the elaborative and in-depth analysis of the features and categorization of the two products i.e., Smart Phones and Tablets was not called for.

Adding to the above, Court stated that the writ court should not substitute its preferred interpretation of the tender condition with the one adopted by the author of the tender document and the person procuring the product, who has to be regarded as the best person to understand its requirements.

Supreme Court observed from the facts and submission that, even if some of the organisations, in relation to their requirements, procured tablets and smart phones both under the same tender process or even used these expressions “interchangeably” or “interconnected”, that by itself cannot lead to a definite conclusion by the Court that “Smart Phones” and “Tablets” are to be taken as similar category products for the tender process in question.

When can Courts interfere in matters of Contracts?

The process of interpretation of terms and conditions is essentially left to the author of the tender document and the occasion for interference by the Court would arise only if the questioned decision fails on the salutary tests laid down and settled by this Court in consistent decisions, namely, irrationality or unreasonableness or bias or procedural impropriety.

“Mere elaboration by the tender inviting authority as regards its reasons and basis of the decision cannot be said to be that of inconsistency.”

Court held that, the terms of tender in the present case had been clear, and they were ascertainable with specificity available on the very portal on which NIT was issued.

In view of the above discussion, it was concluded that the petition be dismissed, and the impugned order be set aside. [Agmatel India (P) Ltd. v. Resoursys Telecom, 2022 SCC OnLine SC 113, decided on 31-1-2022]

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta J. allowed the petition and decided that the school will be converted to English medium subject to the decision taken by SDMC by majority of its members.


The facts of the case are such that a school named Shri Hari Singh Sr. Sec. School, Pilwa has been functioning in village Pilwa since 1980. The school has been catering to the educational needs of about 600 children from all sects including girls residing in such village and nearby villages. The medium of instruction in the school is ‘Hindi’ since its inception. The petitioner 1 is the School Development Management Committee i.e. ‘SDMC’ represented by one of its members while petitioners 2 and 3 are parent-members of the SDMC. The SDMC is a statutory body constituted under section 21 of Right of Children to Free and Compulsory Education Act, 2009 i.e. RTE Act’. The petitioners in the instant case feel aggrieved of the decision dated 13-09-2021 taken by the State Government and consequential decision/order dated 20-09-2021 of the respondent No.2 by which ‘the school’ has been converted to an English Medium School – Mahatma Gandhi Government School (English Medium).


(i) Whether Article 21A of the Constitution of India which guarantees a right to education, also guarantees right to receive education in mother tongue or home language?

The Court observed that from perusal of Article 21A of the Constitution of India reveals that it enjoins upon the State to provide free and compulsory education to all children between the age of 6 to 14 years, but then, such right is not an absolute right, as its expanse has been hedged by the expression “in such manner as the State may, by law determine”. Since, Article 21A of the Constitution is tethered with the words “in such manner, as the State, may, by law determine”, according to this Court the State may by law provide the medium and manner to provide such free education, which in a given case can be Hindi, English or even regional dialect – the mother tongue of the child. No child or parent can claim it as a matter of right, which he/his ward should be instructed in a particular language or the mother tongue only, on the basis of what has been guaranteed under Article 21A of the Constitution.

(ii) Whether right to get education in mother tongue or Hindi is a fundamental right?

 The Court observed that fundamental right guaranteed under Article 19(1)(a) is only subject to reasonable restriction by law to be enacted, by the State, in the opinion of this Court, the instant decision taken or the State’s policy decision, cannot whittle down the fundamental right of a child to be taught in a particular medium, which is assured rather protected by Article 19(1)(a) of the Constitution of India.

(iii) Whether the State’s policy decision of converting the school in question to Mahatma Gandhi English Medium School is in conflict with the provisions of section 20, 21, 22 and 29(2)(f) of the Act of 2009?

The State of Rajasthan promulgated Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 wherein section 21 and 22 of the Act of 2009 and Rule 4 & 5 of the Rules of 2011, lays down that School Management Committee is required to prepare a school development plan which shall contain details of class-wise enrollments each year, requirement of number of additional teachers, requirement of additional infrastructure etc. Thus, by reading the provisions of the Act of 2009 and Rules of 2011, the Court is unable to conclude that prescription of medium of instruction is a decision to be taken by the School Management Committee, as a part of school development plan. Preparing a school development plan cannot be misconstrued to mean the prescription of syllabus and medium of instructions. It has to be done by the experts in the field of education/child education.

(iv) Whether the consent of School Development Management Committee (SDMC) is necessary before converting a Hindi medium school to an English medium school?

The Court observed that the functions to be discharged by the School Development Management Committee under clause (a) and (b) of section 21 (2) of the Act of 2009 do not include the decision to be taken with respect to language or medium in which the students of the school shall be taught. The medium of instruction is to be determined by the Appropriate Authority or Rajasthan School Education Council.

The Court observed that Article 19(1) (a) of the Constitution of India is the fountain head, being repository of the right to freedom of speech and expression from where flows such right. Article 19(1)(a) has wide ambit and it includes within its fold, right to have education in a particular medium. The right of having elementary education in mother tongue is also a statutory right conferred by section 29 (2)(f) of the Act of 2009, according to which medium of instruction, as far as practicable, is required to be in child’s mother tongue.

The power to frame laws in the subject of education falls in the Entry No.25 of concurrent list of the VII Schedule. And since the Act of 2009 occupies the field which unequivocally prescribes that medium of instructions in elementary education as far as practicable, be in mother tongue/home language of the child, any law made or framed by the State but for the assent of the President would be repugnant by virtue of Article 254 of the Constitution.

The Court opined, English, as a medium of instruction cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.

Be that as it may. Since the petitioner No.1 – SDMC of which petitioner No.2 & 3 are members, has itself decided to have a school of English medium, impugned decision of the State at the instance of the present petitioners cannot be quashed, more particularly, because the decision of the State or its policy as such are not under challenge.

The Court observed that the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19. In absence of any valid legislation brought by the State of Rajasthan, this Court is of the view that such right cannot be abrogated or taken away. The impugned decision dated 20.09.2021 seeking to convert the school in question to a Hindi medium school with immediate effect (session 2021-22) is fortiori, violative of Article 19(1)(a) and 14 of the Constitution of India.

Indisputably, the School Development Management Committee is a statutory body, constituted under the provisions of section 21 of the Act of 2009 and Rule 3 of the Rules of 2011. Section 21(2) and 22 of the Act of 2009 enjoins upon the committee to monitor the working of the school and prepare/recommend school development plan. In the opinion of this Court, the State’s administrative decision and action of forcing English as a mode or medium of instruction is violative of section 21 and 22 of the Act of 2009, particularly, in the face of resolutions adopted by the SDMC.

The Court keeping in mind the facts, policy decision and laws/rules directed that “in case, for the ensuing session i.e., 2022-23, the State wishes or proposes to convert the school in question to Mahatma Gandhi English Medium School, it shall convene a meeting of the School Development Management Committee constituted under Rule 3 of the Rules of 2011 in presence of the Sub Divisional Magistrate/Tehsildar and a nominee of District Education Officer concerned. Notice of the meeting with the proposed agenda will be circulated well in advance. If the School Development Management Committee by majority of the members present, resolves that the school in question be converted to an English medium school, then only, the State’s decision to convert the school in question to a Mahatma Gandhi English Medium School shall be given effect to. Else, the school will not be converted to an English medium school.”[School Management Development Committee v. State of Rajasthan, 2022 SCC OnLine Raj 38, decided on 04-01-2022]

Arunima Bose, Editorial Assistant has reported this brief.


For petitioner: Mr. Moti Singh

For respondent: Mr. Pankaj Sharma, Mr. Rishi Soni and Mr. Deepak Chandak

Income Tax Appellate Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal (ITAT): Coram of Anil Chaturvedi (Accountant Member) and Suchitra Kamble (Judicial Member) allowed the appeal filed by the assessee challenging the assessment order made by the Income Tax authorities.

The assessee society was duly registered, and the renewal was granted for the period of 5 years. Society was granted registration under Section 12AA of the Income-tax Act, 1961. The society was granted an exemption under Section 10(23C) (vi) of the Income Tax Act. The return of income filed was filed declaring NIL income.

Assessing Officer made addition of Rs 93,88,000 towards net surplus from hostel activity and also disallowed Rs 3,26,11,455 regarding the claim of depreciation made by the assessee.

Being aggrieved by the assessment order the appeal of the assessee was partly allowed.

Analysis, Law and Decision

Tribunal stated that it was undisputed that the assessee was carrying educational activity.

Income from these activities declared by the assessee was NIL and the assessee earned gross receipt of Rs 16,26,69,407 on account of educational activity whereas the assessee was also running hostels for the students as per the UGC Guidelines which is an ancillary activity.

Tribunal further expressed that, in the absence of any evidence to show that the hostel facilities were provided to anybody other than students and staff of the trust, the hostel facilities provided by the educational institution shall be construed to be the intrinsic part of the ‘educational activities’ of the assessee and they cannot be considered different than activities of the society of ‘education’.

Hence, the addition amounting to Rs 93,00,088 made by the AO and sustained by the CIT(A) was not correct.

CIT(A) and the Assessing Officer failed to consider that the hostel facility is incidental to achieve the object of providing education as per object of the society and hence comes under the charitable purpose which is exempt under Section 11 of the Income Tax Act, 1961. 

In light of the decision of Supreme Court in CIT v. Rajsthani & Gujarati Charitable Foundation Poona, wherein it was held that the depreciation in respect of cost of the assets allowed to the assessee as expenditure is allowable, the issue regarding the depreciation in respect of hostel facilities was squarely covered in favour of the assessee.

In view of the above discussion, the appeal of the assessee was allowed. [Ideal Institute of Technology Society v. JCIT, 2021 SCC OnLine ITAT 662, decided on 3-11-2021]

Advocates before the Tribunal:

Appellant by: Sh. C. S. Aggarwal, Sr. Adv, Sh. Ravi Pratap Mall, Adv

Respondent by: Ms Sunita Singh, CIT DR

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma, CJ. and Sachin Shankar Magadum J. directed the State Government to provide textbooks in Braille for all specially abled children having visual disabilities within a period of 15 days.

The instant petition in the nature of PIL i.e. Public Interest Litigation was filed on behalf of the children who are specially abled children as in the State of Karnataka, text books are not available in Braille and they have also not uploaded the books on the website in PDF form so that a print out can be taken in Braille.

An interim order was passed last year wherein Additional Government Advocate submitted that the text books in Brailee for Class-I to X of the kannada medium will be available from the next academic year.

The Court thus directed “As next academic year has already been commenced, the State Government is directed to provide text books in Brailee for all special children (visual disabilities) positively within a period of 15 days from today, if the same has not been done”

The matter is next posted for 07-10-2021.[National Federation of Blind v. State of Karnataka, WP No. 52201 of 2019, decided on 17-09-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Legislation UpdatesRules & Regulations

The Government of Himachal Pradesh has amended Himachal Pradesh Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2008. The amendment introduces new rates towards financial assistance for the education of the children of the Beneficiary.


Key Amendments:

1. Following Rules have been inserted

  • Rule 298: Female Birth Gift Scheme: The Board may provide a sum of Rs. 51000/- only in shape of FDR which may be given to the beneficiary on the birth of his/her female child (upto 2 girls), which will be enchashed at the completion of 18 years of the said daughter. If the girl in whose name an FDR has been made unfortunately dies before attaining the age of eighteen years, the FDR will get transferred to the third girl child of beneficiary if any,  otherwise the entire amount will be paid the nominee.
  • Rule 299: Mentally Retarded Children Benefit Scheme: A financial assistance for the care of mentally retarded or handicapped children with disability of 50% and above beneficiary @ Rs 20000 per year will be provided to him/her on production of valid medical certificate issued by competent authority.
  • Rule 300: Widow Pension: The widow of a deceased beneficiary will be provided a pension of sum of Rs. 1500/- per month after the death of the said beneficiary, provided that she is not employed in any Govt./semi-govt.  or autonomous body under the Government of India/Government of Himachal Pradesh on regular, contract or daily wage basis.
  • Rule 301: Hostel Facility Scheme: A beneficiary will be provided a maximum amount of Rs. 20000/- for the expenses incurred by him/her on lodging, boarding and food of his children living in any hostel.
  • Rule 302: Mukhyamantri Awas Yojna: A beneficiary who is already enrolled either under Pradhan Mantri Awas Yojna or Mukhya Mantri Awas Yojna, will be provided a financial assistance of Rs. 1,50,000 to build his/her home.

2. Rule 281(1) has been modified to provide new rates for financial assistance for education of children of the beneficiary from the Fund.

Case BriefsSupreme Court

Supreme Court: Hearing a series of petitions filed by Class XII students of various Boards, the bench of AM Khanwilkar and Dinesh Maheshwari, JJ has directed all the State Boards to formulate Schemes for assessment of the Students within 10 days.

Though the Court directed that the respective Boards are free to formulate their own Schemes being autonomous and independent bodies, it made clear that the Scheme must provide for a proper mechanism for redressal of dispute or grievance of the students after declaration of results, as has been done in the case of C.B.S.E. and I.C.S.E. Boards.

Class XII students’ evaluation scheme by CBSE and ICSE approved by Supreme Court with two additions: Here’s what we know

The Court said,

“… we are not endorsing the correctness and validity of the proposed Schemes, to be so formulated by the concerned Boards. That will be considered on its own merits, if and when occasion arises.”

The Court, hence, directed the State Boards to

“… ensure that the Schemes are formulated and notified at the earliest and not later than 10 days from today and also declare the results of internal assessment by 31.07.2021, which is the time-line specified for C.B.S.E. and I.C.S.E. Boards in terms of our order dated 22.06.2021 passed in Writ Petition(C) No. 522 of 2021.”

The aforesaid direction applies to all States but the State of Kerala which has already conducted XII standard Examination in the month of April, 2021.

[Anubha Shrivastava Sahai v. Union of India, Writ Petition(s)(Civil) No(s). 620/2021, order dated 24.06.2021]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has refused to interfere with the assessment Scheme propounded by the C.B.S.E or I.C.S.E for the Class XII students and has held that,

“… the stated Schemes are fair and reasonable and take into account concerns of all students and is in larger public interest.”

Let’s have a look at why the Schemes and the decisions of the Boards were challenged:

Decision to cancel the Class XII examinations and declare results on the basis of internal assessment marks as propounded in the Scheme must be set aside and examination must be conducted for academic year 2020-21.


The Argument was rejected on the ground that the Boards have taken decision to cancel the examinations, which according to them, is in larger public interest including the body of students pursuing education with them.

“The fact that other Boards or institutions have been able to conduct examination does not necessarily mean that the Boards before us are bound by that dispensation. The Boards are autonomous Boards and are entitled to evolve their schemes independently.”

The Scheme ought to provide option at the threshold as to whether the student wants to appear in the examination for improvisation of marks, to be conducted by the concerned Board for that purpose. Further, the results of the internal assessment should be declared together with the results of such examination.


“… tweaking the Scheme in any manner, as propounded by the two Boards would result in denial of one option to the students and also delay the declaration of results indefinitely. There would be uncertainty until the examination for improvisation is actually conducted and results are declared.”

The Court explained that if the students are given the option of accepting the internal assessment marks, the results could be declared before 31.07.2021 and despite declaration of those results, they may still have the option of appearing in the examination for improvisation, if they so choose to.

Interestingly, somewhat similar Scheme was adopted in the previous academic year and the body of students accepted the internal assessment results. Hardly, 10 students from I.C.S.E. and 15000 from C.B.S.E. availed of the option to appear in the examination for improvisation of marks.

Past performance of three years of the students is being reckoned for internal assessment in the Scheme propounded by C.B.S.E is unfair and irrational.


The Court refused to take a second look at the Scheme which has been formulated by the expert body which was appointed by the Board consisting of thirteen members after taking all aspects into consideration in order to ensure that no candidate/student is prejudiced.

“… the Scheme intends to rationalize the internal assessment performance and bring semblance of parity amongst the assessment of different schools. This exercise will be undertaken by a broad-based Result Committee.”

Further, the Boards are independent and autonomous bodies and entitled to take their own decision with regard to the affairs of conducting examination by them.

The result should be declared on the same day.


Attorney General sumtted that U.G.C. will be issuing necessary instructions to ensure that the admission process by the colleges and institutions should commence only after the declaration of results by the C.B.S.E. and I.C.S.E., including the State Boards. Hence, ther aforementioned argument was rejected by the Court.

There is possibility of C.B.S.E. schools manipulating the records as the relevant data on the basis of which internal assessment is to be done is not in the custody or in possession of the C.B.S.E.


Stating that the argument was nothing but a vague apprehension, the Court took note of the Attorney General’s submission that the broad-based Result Committee would examine all aspects of the matter and take decision on the basis of registers maintained by the concerned schools, and inspected by the competent authority.

Clarification on conduct of examinations for private, patrachar and second compartment candidates

Examination will be duly conducted in which all these candidates can appear as private candidates and such examination will be conducted between 15.08.2021 to 15.09.2021 and the results would be declared at the earliest so that even these students would be in a position to pursue their further education, if they so desire.

Read the Schemes here

Class XII students’ evaluation scheme by CBSE and ICSE approved by Supreme Court with two additions: Here’s what we know

[Mamta Sharma v. CBSE, 2021 SCC OnLine SC 433, order dated 22.06.2021]

For UOI: Mr. KK Venugopal, Attorney General for India

For CBSE: Mr. Tushar Mehta, Solicitor General of India

For ICSE: Senior Advocate JK Das

For interveners: Senior Advocate Vikas Singh

For Petitioners: Advocates Anshul Gupta and Abhishek Choudhary

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has accepted the schemes presented by CBSE and ICSE for assessment of students who were due to appear in the now cancelled Class XII Board exams.

The Court however, made clear that the scheme must incorporate two aspects:

(i) providing for Dispute Resolution mechanism, in case the students apply for correction of the final result declared by the concerned Boards.

(ii) the time-line to be specified for (a) declaration of the 6 result and (b) the date before which the optional examination will be conducted, subject to conducive situation and logistical constraints.

The Court also rejected the intervenor’s plea that the decision of the CBSE and the ICSE to cancel the examination be re-visited. It, however, gave time to Senior Advocate Vikas Singh to examine the scheme propounded by the concerned Boards and listed the matter on 21st June, 2021. The Court, however, made clear that

“… the concerned Boards are free to notify the final scheme on the above lines and include the two suggestions given by the Court. If any further suggestion is given by Mr. Vikas Singh, learned senior counsel, that matter can be addressed appropriately.”

Key highlights of CBSE’s Scheme

  • Due to cancellation of the Board examinations, the assessment of theory portion of 80/70/60/50/30 marks will be done by the school based on the following:

Class XII: Marks based on Unit Test/Mid-Term/Pre-Board Exam – 40 %

The computation of theory marks for class XII will be based on performance in one or more Unit Test(s)/MidTerm/Pre-Board(s) theory examination. The result committee of the school may decide weightage to be given to each exam based on the credibility and reliability of the assessment.

Class XI: Marks based on theory component of final exam -30 %

Class X: Marks based on average theory component of best three performing subjects out of main 5 subjects – 30 %

This average will be uniformly awarded to all the class XII subjects based on theory weightage. To facilitate ease in entering the theory marks of class X, the Board will provide the marks for the students who have appeared in CBSE class X examinations. For students of other Boards, the schools will have to enter the information based on the class.

  • The marks of Practical/Internal Assessment etc. of class-XII will be on actual basis as uploaded by the school on the CBSE portal.
  • The total marks awarded should be in consonance with the past performance of the school in ClassXII Board Examinations.
  • The computation of theory marks for class XII will be based on performance in one or more Unit Test(s)/MidTerm/Pre-Board(s) theory examination. The result committee of the school may decide weightage to be given to each exam based on the credibility and reliability of the assessment.
  • To ensure standardisation, each school will have to internally moderate the marks to account for the school level variations by using a reliable reference standard.
  • The historical performance of the school, in terms of the best overall performance in the previous three years’ Board examination, will be taken as the reference for moderating the marks assessed by the school for 2020-2021.
  • The subject wise marks assessed by the school for 2020-2021 should be within a range of +/- 5 marks obtained by the students in the school in the subject in the reference year. However, the overall average marks for the school assessed in 2020-2021, for all the subjects, should not exceed the overall average marks obtained by the school by 2 marks in the specific reference year.
  • Once the Result Committee finalizes the marks on the basis of tests/exams, it has to ensure that the marks of students are aligned with the broad distribution of marks provided by the Board. It may be noted that the indicated distribution has to be followed broadly and there may be some difference in terms of number of actual students in each category of the distribution than the one indicated. However, the school subject wise and overall scores should be within the limits provided.
  • Students not satisfied with the Assessment Students who are not satisfied with the assessment, done based on the policy will be given an opportunity to appear in examinations to be conducted by the board when conditions are conducive for holding the examinations. As per this policy, marks scored in later examination will be considered as final.
  • For Private, Patrachar and 2nd chance Compartment candidates etc. Examination will be conducted by the Board as and when the conditions become conducive for conduct of such examinations. The details will be notified in due course.”

Key highlights of ICSE’s Scheme

  1. The components used to arrive at the formula limited to

(i) marks percentage in class X board examinations,

(ii) the Project & Practical Work in the subjects,

(iii) the performance of the candidates in the school examinations in the subjects in classes XI and XII, measured through their best marks obtained in the two years (referred to as raw marks) and (iv) the best performance of the school in the last six years.

  1. The first factor measures the general proficiency of the candidates, the next two factors measure the subject proficiency of the candidates, while the last 5 is a measure of the general quality of the schools the candidates are appearing from.
  2. To arrive at the weights, detailed analyses were performed on the data from the past board examinations from the years 2015 to 2020.
  3. Extensive scenario analyses were done based on different subjects.

[Mamta Sharma v. CBSE, 2021 SCC OnLine SC 430, order dated 17.06.2021]

For UOI: Attorney General KK Venugopal

For CBSE: Solicitor General Tushar Mehta

For ICSE: Senior Advocate JK Das

For Intervenors: Senior Advocate Vikas Singh

Case BriefsHigh Courts

Karnataka High Court: R Devdas, J., disposed of the petition leaving it on  National Law School of India University to approach UGC for attaining the Institutions of Eminence status.

The facts of the case are such that the petitioner National Law School of India University, Bengaluru, is before the Court, aggrieved by a public notice dated 19.07.2016 issued by respondent-UGC by which it has curtailed the physical jurisdiction of the Universities and higher educational institutions in the country in the matter of Open and Distance Learning and provided that in the matter of distance education, a University which is established or incorporated by or under a State Act shall operate only within the territorial jurisdiction allotted to it under the Act and in no case it shall operate beyond the territory of the State where it is located.

Counsel for the petitioner submitted that by placing a restriction on the territorial jurisdiction, the UGC has violated the right of the petitioner under Articles 14 and 19 (1)(g) and the Right to Education under Article 21-A of the Constitution of India. It was further submitted that UGC is established under an Act of the Parliament for maintenance of standard of education in the country, but the impugned public notice, communication and Regulations, 2017 travel beyond the powers of the UGC. It is contended that such restriction is inconsistent with the object and nature of distance education.

Counsel for the respondents relied on judgment Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420 submitted that establishment of a University conferring the legal status, but lacking in all the basic requirements, is clearly contrary to the constitutional scheme and is not contemplated by Article 246 of the Constitution.  It was further submitted that on establishment of the UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017, the UGC has made provision to create a distinct category of Deemed to be Universities, called ‘Institutions of Eminence Deemed to be Universities’ which would be regulated differently from other Deemed to be Universities so as to evolve into institutions of world class in a reasonable time period.

The Court observed that Regulations framed by UGC to determine standards of education, become part of the UGC Act and the same are applicable to both Open Universities as well as conventional formal Universities and in that respect, the alternative system envisaged under IGNOU Act, was not in substitution of the formal system. The distinction lay rather in the mode and manner of imparting education and hence, any Degree awarded in violation of Regulation-II of the UGC Regulations of 1985 by a University under Open University system, was held to be void.

The Court thus held “Now that the UGC has come up with the UGC (Institutions of Eminence Deemed to be Universities) Regulations, 2017, making provision to create a distinct category of Institutions of Eminence Deemed to be Universities, which would have the benefit of establishing Off-campus centres and Offshore campus, the petitioner University is free to make an application seeking declaration as ‘Institutions of Eminence Deemed to be Universities’.”

[NLSIU v.UGC, Writ Petition No. 63550/2016, decided on 19-05-2021]

Arunima Bose, Editorial Assistant has reported this brief.


Counsel for petitioners: Mr. Adithya Sondhi and B V Nidhishree

Counsel for respondents: Mr. Showri HR and Ms. Madavi

Case BriefsHigh Courts

Rajsthan High Court: The Bench of Dinesh Mehta, J., slammed the ICAI for illegally withholding the result of a young girl-student of 21 years of age due to her alleged derogatory e-mail. The Bench remarked,

“The Institute of Chartered Accountants of India is a statutory body. Hence, its decisions, actions and adjudication are supposed to conform to the standards expected of State. A State that suppresses freedom of speech and inflicts or imposes extreme punishment treating an act or attempt of criticism and/or if it treats any suggestion for improvement as a challenge to its authority or supremacy is a State, that disregards rather violates fundamental rights of a citizens guaranteed by Article 19(1)(a) of our Constitution.”

Factual Fulcrum of the Case

On account of unprecedented situation of spread of Covid-19 and imposition of lock-down, the exams due in May, 2020 were cancelled by the ICAI and were re-scheduled to be conducted between 21-11-2020 to 14-12-2020. Owing to the said rescheduling, the Institute gave an option to all those candidates to either appear in the examinations to be held in November, 2020 or opt-out of examinations with a liberty to appear in subsequent examinations in January, 2021.

On 20-11-2020, the petitioner chose to address an e-mail to the office bearers of the Institute. In the said e-mail, the petitioner highlighted the situation of spread of Covid-19 and cautioned that if the examinations were held, it would lead to exponential growth in number of Covid cases. The thrust of her e-mail was only to suggest that online infrastructure be developed so that all levels of CA Examinations be conducted online. Evidently, the petitioner opted out of the November exams and appeared in all the papers/exams held as per above schedule.

On 22-02-2021, as a bolt from the blue, the Dy. Secretary (Examinations) wrote a e-mail informing the petitioner that her result had been put on hold, because of derogatory remarks she had made in her e-mail and an explanation was also sought as to why disciplinary proceedings not be initiated against her for the same. No sooner had the petitioner received the notice than she sent an e-mail expressing her unconditional apology for her inappropriate remarks. Regardless of the aforesaid letter, the institute proceeded to send her a communication with the subject “Alleged resort to unfair means/derogatory remarks during Chartered Accountants Examinations – November 2020.” Consequently, the petitioner appeared before the examination committee and put forth her explanation, but she was kept uninformed about the order/result of the hearing.

Later on, on surfing the official website on the day of result the petitioner found out that her result had been cancelled, under caption “ADOPTED UNFAIR MEANS. LETTER FOLLOWS”. On making a query she was informed by the institute that the Examination Committee had reached a conclusion that she was guilty of making derogatory remarks in the captioned examination and thus, her result had been cancelled.

Findings of the Court

Having waded through the record, the Court opined that not only the initiation of proceedings against the petitioner, but also the manner in which, the proceedings had been conducted so also its culmination in cancellation of petitioner’s result suffered from vices. On the perusal of the contentious e-mail sent by the petitioner, the Court said that the same was addressed to Institute’s President and other office bearers and not to the Examination Committee. Hence, the Examination Committee ought not have taken cognizance of an e-mail. Further, the Bench remarked,

“There is hardly anything in the e-mail, for which it can be alleged/ considered as or even construed to be derogatory. The very initiation of the proceedings against the petitioner alleging that the e-mail contains derogatory remarks was uncalled for and unwarranted. On the contrary, this Court feels that action of the respondents was rather over bearing or high handed.”

Quoting Voltaire, the Bench said, “With great power comes great responsibility”, thus, the Institute which is adorned with enormous power to elevate or uplift the lives of vulnerable & struggling students, is required to practice greater restraint in invoking its powers especially against the students. The Bench added,

One cannot lose sight of the fact that on receipt of the notice dated 22-02-2021 itself, the petitioner had practically knelt down in subservience before respondent No.2 urging that she regretted her action and would not repeat the same in future.”

But for the reasons best known to the Examination Committee, instead of burrying the hatchet, it literally opened a battle-front and summoned the petitioner to Jaipur to defend her cause. Opining it disturbing that the petitioner was personally heard yet no order was ever communicated to her and that her result was cancelled that too, citing “adopted unfair means”; the Bench held that the actions of the institute were without jurisdiction and against the principles of natural justice on one hand and capricious and arbitrary on the other.

Evidently, the Institute had warned the petitioner of dire consequences, if she further indulged in addressing any such communication to ICAI or any other organization concerning examinations.  Indisputably, the petitioner had not written even a single letter to the Institute or to any other authority after 20-11-2020. The respondent-Institute, therefore bound by its own notice was estopped from initiating any action much less disciplinary proceedings. Hence, the Bench held that the impugned proceedings were fundamentally without any basis besides being arbitrary. Since there was no mentioning or even indication of cancellation of result neither in the e-mail dated 22-02-2021 nor in the subsequent communications, there remains not even an iota of doubt that the impugned order of cancelling the result was inherently illegal, falling foul to Article 14 of the Constitution of India and the same was quashed.

Whether the Examination Committee had the jurisdiction to cancel petitioner’s result?

The moot question, required to be decided was whether the Examination Committee had the jurisdiction to cancel petitioner’s result in the present factual matrix.  Regulation 41 of the Regulations of 1988 revealed that the Examination Committee can initiate disciplinary proceedings in connection with the Examination. The language used therein is unequivocal, leaving no room for ambiguity that an action can be taken if a candidate behaves in a disorderly manner in or near an examination hall or has resorted to unfair means. The incidence or the e-mail in question had no nexus or proximity with the examination hall, hence, the proceedings under challenge were void since their inception or very beginning.

The institute’s action of reflecting such mis-information in its official website, in clear contrast with the actual facts is beyond acceptable limits.

The Examination Committee ought to have realized that such casual rather reckless approach involving imputation on reputation may have serious repercussions on emotional or mental equilibrium of a student.”


The writ petition was thus, allowed with the cost of litigation quantified at Rs.20,000. On referring the result produced by the institute in a sealed envelope, the Court found out that the petitioner had passed the CA Intermediate Examination. Hence, the ICAI was directed to send original mark sheet and certificate to the petitioner and further, directed the institute to appropriately reflect petitioner’s result on its official portal. Lastly, the Bench warned the ICAI to take criticisms in positive stride, the Court stated,

A professional body like the respondent Institute should introspect and ensure that its over-enthusiasm of attaining professional excellence and endeavors of setting high standards of discipline should not silence rather stifle the speech of a student or its member in the manner that has been done in the present case.”

[Risha Lodha v. ICAI,  2021 SCC OnLine Raj 457, decided on 13-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For Petitioner(s): Adv. Vikas Balia

For ICAI: Adv. Manoj Bhandari and Adv. Anjay Kothari

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ., and Alok Kumar Verma, J., decided over a petition which was filed by the petitioner challenging the legality of the order dated 19-02-2020, whereby she was denied the chance to appear for interview for the post of Assistant Professor (Political Science). She had further prayed that the Uttarakhand Public Service Commission (“the Commission”) should be directed to consider her degree of M.A. in Public Administration as an eligible degree for being appointed on the post of Assistant Professor (Political Science).

The petitioner had done her graduation in the year 2005 with the subjects of English, Economics and Political Science. In the year 2008, she had completed her M.A. in Public Administration. She had also qualified the Uttarakhand State Eligibility Test (USET) in Political Science. Eventually, she had completed her Ph.D. in Political Science. After having completed her studies, she was appointed as a Guest Lecturer in Political Science in the Government Degree College, Jakholi, Rudraprayag. The Commission had advertised post of Assistant Professor (Political Science) in various degree colleges in the State and she had applied for the same. She had appeared in the written examination, and cleared the same however the Commission, refused the petitioner the right to appear in the interview ostensibly on the ground that her M.A. degree was in Public Administration. The petitioner had filed a representation on 11-02-2020, wherein she clearly pointed out that, according to the UGC guidelines issued on 04-07-2018, a degree in Public Administration was deemed to be equivalent to a degree in Political Science. Her representation was rejected by respondent 3. Hence, the instant writ petition was filed.

This Court had directed the Commission to consider the candidacy of the petitioner by order dated 21-10-2020, and to permit her to appear in the interview on a provisional basis. Furthermore, by order dated 08-04-2021, this Court had called for the result of the petitioner which clearly revealed that the petitioner has passed the examination.

The Court observed that undoubtedly, according to the UGC guidelines issued on 04-07-2018, a degree of M.A. in Public Administration was equivalent to a degree of M.A. in Political Science. Therefore, according the UGC, the petitioner would be deemed to be equipped with a degree of M.A. in Political Science. The Court further held that she had a right to be considered for appointment on the post of Assistant Professor (Political Science) as she had already qualified the examination. The Court directed respondent 3 to consider the petitioner’s case for the post of Assistant Professor (Political Science), if she was found to be eligible and suitable for the said post.

[Minakshi Sharma v. State of Uttarakhand, 2021 SCC OnLine Utt 460, decided on 13-05-2021]

Suchita Shukla, Editorial Assistant has put this report together 

Counsel for the petitioner. : Mrs Prabha Naithani

Counsel for respondent 1 and 2. : Mr. C.S. Rawat

Counsel for respondent 3. : Mr. B.D. Kandpal

Counsel for respondent 4. : Mr. Vikas Pande

Case BriefsSupreme Court

Supreme Court: The division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has issued “general uniform direction” of deduction of 15 per cent of the annual school fees for the academic year 2020-2021 in lieu of unutilised facilities/activities and not on the basis of actual data school-wise.

The said direction was issued in order to obviate avoidable litigation by over 36,000 schools and to give finality to the issue of determination and collection of school fees for the academic year 2020¬21, as a one-time measure.

On 09.04.2020, an order was issued by the Director, Secondary Education, in the wake of COVID¬19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three months.

Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on 07.07.2020 which read as

“The fee chargeable by non¬government schools from the students/guardians after 15th March, the applicable fees at present   and   payment   of   advance   fee   was   deferred   for   3 months, as per the direction of the State Government the said deferment is extended till the reopening of the schools. In case of non-deposition  of fees  during the  said  period, name of such student will not be struck off from the rolls of the school.”

On 07.09.2020, Rajasthan High Court directed the school Authorities to allow the students to continue their studies online and also to deposit only 70 per cent of the tuition fees element from the total fees chargeable for the period from March 2020 in three instalments.

On 28.10.2020, the Director of Secondary Education , Rajasthan issued an order stating that the   schools which were/which are imparting online teaching then capacity building fees can be charged from such students which will be 60% of the tuition fees.

The Supreme Court noticed that the Director, Secondary Education had no authority whatsoever to issue direction in respect of fee structure determined under the Rajasthan Schools (Regulation of Fee) Act, 2016 including to reduce the same for the academic year 2020¬21 in respect of private unaided schools. However, this does not give licence to the School Management to be rigid and not be sensitive about aftermath of pandemic.

“Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day¬to-day affairs and the basic need of their family made fervent representation to the school Management(s) across the State.” 

The Court explained that, in law, the school Management cannot be heard to collect fees in respect of activities and facilities which are, in fact, not provided to or availed by its students due to circumstances beyond their control. Demanding fees even in respect of overheads on such activities would be nothing short of indulging in profiteering and commercialisation.

Further, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020-21. Resultantly, the school Management must have saved   overheads and recurring cost on various items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc.

“Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period.  Being fee, the principle of quid pro quo must come into play.”

However, no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management.     The Court, hence, assumed that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period.

“… we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per cent of the annual school fees for academic year 2020¬2021), would be a case of profiteering and commercialisation by the school Management.”


(i) The school Management of the concerned private unaided school shall collect annual school fees from their students as fixed under the Act of 2016 for the academic year 2019-20, but by providing deduction of 15 per cent on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020¬21.

(ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021.

(iii) Regardless of the above, it will be open to the concerned School Managements to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above.

(iv) The school Management shall not debar any student from attending either online classes or physical classes on account of non¬payment of fees, arrears/outstanding   fees   including   the   installments, referred to above, and shall not withhold the results of the examinations of any student on that account.

(v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020¬21 in the above terms, the school Management to consider such representation on case¬to¬case basis sympathetically.

(vi) The above arrangement will not affect collection of fees for the academic year 2021-22, as is payable by the students of the concerned school as and when it becomes due and payable.

(vii) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non-payment   of   fee/arrears   for   the   academic year 2020-21, if any, on obtaining undertaking of the concerned parents/students.

[Indian School, Jodhpur v. State of Rajasthan, 2021 SCC OnLine SC 359, decided on 03.05.2021]

*Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

For appellants: Senior Advocate Pallav Shishodia, Shyam Divan,  Puneet Jain and Romy Chacko

For State of Rajasthan: Senior Advocates Dr. Manish Singhvi and Devadatt Kamat

Mr. Sunil Samdaria, in­person

Advani LawExperts Corner


Over the past decade, the Indian legal market has demonstrated considerable growth and has in fact, adopted a liberalised approach. With the increase in the number of foreign investors being interested in the Indian market, it becomes all the more dramatic and exciting of an industry for lawyers. Especially young lawyers, that are practising in their formative years, would always be eager to work in a market where there is immense opportunity to learn and gain experience and to be in the midst of a dynamic marketplace. This is one of the primary reasons why Indian lawyers, that have attended law school in foreign countries, choose to come back and practise in India. One cannot ignore that the practical experience that this country has to offer to young lawyers is incomparable with other countries, especially in times such as these, when a number of countries are going through economic downturn, increasing immigration hassles and now the pandemic.


At this juncture, it would be worthwhile to briefly share how law students are trained in law schools in countries such as the UK and US. The system of education and the way law students are practically conditioned to become lawyers in foreign countries is significantly different from India. For example, the undergraduate course in law in the UK is a comprehensive three-year programme that is spread across a number of compulsory and optional modules. From the first year onwards, apart from the compulsory modules, law students are at discretion to choose modules of their interest all the way till the end of the degree. The degree programme has its foundational basis in research more than examinations per se. From lectures to tutorials, the coursework is spread across research papers and practical problems. In a nutshell, a law student that has graduated from a university in the UK has been extensively trained in research and practical problem-solving skills. That is one of the biggest perks that a young lawyer would graduate law school with in the UK.


Coming back to India to commence practice as a lawyer has its own formalities that one must go through in order to get “qualified” to practise in the country. While each country has its own set of procedures of converting qualifications for a legal professional, it becomes extremely important to have a clear set of guidelines and processes for achieving that target. Unfortunately, the process for a foreign educated Indian lawyer to get qualified in India is not just unclear, but is cumbersome, unstable and uneconomical.


Being a foreign educated lawyer practising in India

After graduating law school from a foreign jurisdiction, one must appear for the “qualifying examination for Indian nationals holding foreign degrees” conducted by the Bar Council of India, in order to enrol themselves as advocates on the State Bar Council. The examination is spread across six (6) theoretical papers of 100 marks each, three (3) being open-book examinations and three (3) being closed-book examinations.


However, one would assume that this being an examination conducted by the Bar Council of India itself at its office in New Delhi, would be well organised and systematic. On the contrary, however, the examination is coupled with unclear timelines, significant delays in the application processes and outcome of results and unclear guidelines for students appearing for the set of examinations. Just the whole process of applying for the examination and getting a confirmation on your hall ticket takes months altogether, without the authorities giving any clear instructions on the same. It is a waiting game at the end of day, where one must be at the discretion of authorities on when they might hear back on their application. Even on the day of the examination, because the guidelines shared previously were not clear enough, there is confusion in the examination hall as to what precisely are the rules to be followed in writing the examination. It takes approximately 1-1.5 years for completing this qualification process and to be enrolled in the State Bar Council, along with the student paying INR 1.5 lakhs for this set of examinations. Post-clearance of this entire process, one can appear for the All India Bar Examination (AIBE).


A lot of students who are well equipped with a legal educational background, some of them even having higher qualifications in law or other subjects, start their training with law firms in India until they hear back on their enrolment as advocates. As a general norm, one is not considered a “lawyer” unless you have your enrolment as an advocate in hand. This being rightly so, the legal professional appearing for these exams has to wait for 1-1.5 years to get qualified as a “lawyer” in the country, irrespective of the academic qualifications or prior work experience. This directly takes a toll on the kind of work that one is engaged with, the retainer fee and the moral empowerment to be treated at par with your peers, during that time.


It is important to compare this qualifying examination process to what is conducted in other countries, for advocates in India to be qualified elsewhere. For example, the UK conducts the “Qualified Lawyers Transfer Scheme (QLTS)”, that is a two-tiered examination providing an opportunity for advocates in India to qualify as solicitors in England and Wales. The system is highly organised — not only are dates for applications and examinations announced much in advance, but candidates appearing for the QLTS are also informed about precisely when their result would be announced. One cannot underestimate the importance of knowing what the way forward is, as it helps in planning your professional and academic commitments in an orderly manner. Moreover, there are very coherent guidelines provided for candidates appearing for the QLTS, with no scope for any sort of ambiguity.


How can the qualification system be improved for foreign educated Indian lawyers?


It is a common notion that lawyers educated from foreign countries have an advantage over their peers in India. Talking from personal experience, that is not true at all. Yes, a few years down the line, when one wants to switch law firms or companies or wants to practise in a niche sector, foreign qualifications do come in handy, complimenting your work experience. However, in the formative years, it takes a lot of time and hard work to be treated at par with your peers. Keeping the qualification system aside, there are other challenges that exist for a foreign educated lawyer to come back and practise in India. Firstly, there is a lot of unlearning and learning that one must be prepared for. At the end of the day, despite the fact one may have studied from a common law jurisdiction, there is a lot to learn about the law in India, procedures in court, general cultural norms at work, so on and so forth. It is easier said than done, and in fact is also time consuming. Secondly, even if one does complete this qualification process and has their enrolment at hand, it is normal for a lawyer to be treated more as a “trainee” compared to their peers. Law firms are also hesitant in recruiting these lawyers, being apprehensive about whether they really know how to carry out their assignments. In a nutshell, even though one may be perfectly qualified as a lawyer, they are not treated as one completely for a couple of months to a year.


Whilst it is a part and parcel of switching jurisdictions and it is a mandatory process of learning and practising as a lawyer, this task can be a lot less cumbersome if the authorities in India systemise the means and methods of getting qualified. In fact, a lot of law firms in India are not even aware of such a qualifying process existing for that matter and what it really entails. To come to think of it, a lot of difference would be made if recruiters themselves knew what this qualification process is all about and would be in a better position to understand where their candidates exactly stand and to what is the delay attributable to. At the end of the day, just like any other professional, young lawyers coming to India to practise seek learning, to be treated at par with their peers and equal empowerment, and in fact do not seek anything over and above these bare minimum expectations. It would be extremely helpful if more awareness is spread about this arbitrary, discretionary and unorganised system, and steps are taken to amend faults in what exists as normal procedure today.



A large majority of foreign educated lawyers coming to India, find themselves practising in sectors of the legal industry that have a strong connection with international law, such as arbitration, maritime, intellectual property, etc. These are extremely dynamic sectors to work in, where lawyers educated in universities abroad are able to utilise their skill set to the maximum capacity. For example, arbitration is one of most internationalised legal sectors to be a part of, where international norms and standards have to be met in terms of research, drafting, procedure and arguments. It is one of the most advanced fields of law in terms of innovation and flexibility, and is somewhat a comfortable and exciting industry for young lawyers to start their practice with.


At this point, considering the speed bumps that foreign educated lawyers in India face, it is critical to understand the importance of a good mentor that one needs to find for themselves in the country. It is extremely important to work with a mentor in your formative years, who understands your educational background, the culture that you have studied in and your specific skill set. While there is a lot to teach and learn, one must be willing to have patience and teach these young formative lawyers about law and procedures in India. I cannot emphasise enough on the importance of a good mentor, who not only appreciates the qualifications and skill set that one comes with, but also is willing to teach and make you grow into a successful lawyer.


† Senior Associate at Advani & Co. She can reached at kanika.arora@advaniandco.com



Expert Talks session with Kanika Arora on Transforming from Foreign Law Qualifications to practising as a Legal Professional in India




Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and SenthilKumar Ramamoorthy, J., addressed the concern with regard to the quality of education being compromised in law colleges due to the increasing number of law colleges being opened up.

Instant matter pertained to the mushrooming of law colleges in the State.

It was stated that the standard of education imparted at some of the existing law colleges and the infrastructure available needs to be looked into.

As per the State Bar Council, it has been taking vigilant and sufficient steps, but unless there was uniformity all over the country, whether under the aegis of the Bar Council of India or pursuant to Court Orders, the situation could not be appropriately addressed.

Bench stated that there was substance in what the Bar Council stated since regulation of law colleges in a continuous state allows easy access.

Since orders have been passed earlier pertaining to the present matter hence Bench stated that the only thing that can be said is for the Bar Council to be vigilant as far as this State was concerned, since it cannot go beyond the territorial limits.

Bench expressed that the matter needs to be looked into, in-depth, by the Bar Council and possible orders have to be sought at an all India Level to ensure that the quality is not compromised in course of more law colleges being born in the guise of opportunities being created.

However, High Court held that no mandamus could be issued. Further, since it may not be effective merely to regulate the opening of law colleges within the boundaries of this State as easy access to law colleges across the neighbouring States will always be open, no meaningful order is possible to be issued at this level.

Bench suggested that the petitioner can continue the crusade but he may carry the said request to a different level.[M.D. Ashok v. Tamil Nadu State Government, 2021 SCC OnLine Mad 1289, decided on 23-03-2021]

Advocates before the Court:

For Petitioner: Mr M. Madhuprakash

For Respondents: Mr V. Jayaprakash Narayanan State Government Pleader for respondent Nos.1 and 2

                               : Mr. S. R. Raghunathan for respondent No.3