Case BriefsHigh Courts

Bombay High Court: A Bench of R.K. Deshpande and S.M. Modak, JJ., dismissed a bunch of petitions filed by various aided colleges and their teaching staff while directing that they cannot avoid the performance of election duty in the upcoming General Elections.

In exercise of powers conferred by Section 159 of the Representation of the People Act, 1951, the respondents called upon the petitioners to perform election duties. This action was challenged by the petitioners.

Having considered the Supreme Court decision in Election Commission of India v. St. Mary’s School, (2008) 2 SCC 390, the High Court reiterated that the teaching staff cannot be called upon to perform election duty on working days. However,, in the present case, University examinations were rescheduled, and thus the petitioners could be conveniently called to perform election duties on the day of polling and one day before and after the day of polling. Holding that teaching staff cannot avoid the performance of election duty, and the failure thereof may attract disciplinary action, the High Court dismissed the petitions. [Shri Gadge Maharaj Mahavidyalaya v. Election Commission of India, 2019 SCC OnLine Bom 600, dated 04-04-2019]

Legislation UpdatesNotifications

G.S.R. 287(E) — 1. Under Rule 5 (i) and (ii) of Order IV, Supreme Court Rules, 2013 and Regulation 2 of the Regulations regarding Advocates-on-Record Examination made thereunder governing the Examination for Advocates-on-Record, it is hereby notified for the information of all concerned that the next Examination for the Advocates-on-Record will be held in the Supreme Court Premises, New Delhi on 3rd, 4th, 7th & 8th June, 2019.

2. All Advocates who will be completing one year’s continuous training on or before 30th April, 2019 are eligible to appear for the aforesaid examination.

3. Applications should reach the Secretary, Board of Examiners, by 22nd April, 2019. The application forms may be obtained from the office of the Secretary on any working day during office hours. No application shall be accepted after 22nd April, 2019.

4. Acceptance of the application is subject to production of requisite certificate of training from an Advocate-on-Record under Regulation 6 of the Regulations regarding Advocates-on-Record Examination.

5. A list of leading Cases with regard to Paper-IV ‘Leading Cases’ is appended to this Notification as Annexure ‘A’.

6. Under Regulation 12 of the Regulations regarding Advocates-on-Record Examination, no application/representation for re-evaluation of answer sheets shall be entertained. Application/representation seeking relief other than in the nature of re-evaluation shall not be entertained beyond a period of 30 days from the date of declaration of the result.

7. In the ensuing examination those who are given roll numbers and who absent themselves in any individual examination paper(s) will be treated as not sufficiently prepared for the examination and will be dealt with under Regulation 5(b) without giving them any further opportunity, and they shall not be permitted to sit for the examination in the year 2020 except for good reason and with the permission of the Chairman of the Board of Examiners.

8. Under Regulation 11 (iii) of the Regulations regarding Advocates-on-Record Examination, a candidate who fails in all the papers of the examination shall not be permitted to appear in the next examination. The candidates, who do not appear in all the papers and fail in the papers in which they have appeared, shall be treated to have failed in all the papers including the papers they have not appeared.

9. Under Regulation 11 (iv) of the Regulations regarding Advocates-on-Record Examination, a candidate shall not be allowed more than five chances to appear at the examination. Appearance even in any one of the papers in an examination shall be deemed to be a chance.

[F. No. AOR Exam/June/2019]

[Notification dt. 01-04-2019]

Supreme Court of India

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Bench of S.V.S. Rathore, J. and Air Marshal BBP Sinha (Member) allowed the application filed by a member of Indian Army’s Electronics and Mechanical Engineers Corps, directing grant of disability pension to him.

Applicant herein was enrolled in the Indian Army and discharged from service in ‘low medical category’. The Release Medical Board (RMB) located at Base Hospital, Lucknow assessed his disabilities as: (i) ‘Obesity’ at nil percentage which was ‘Neither Attributable to Nor Aggravated’ (NANA) by military service; and (ii) ‘Primary Hypertension’ at 30 per cent for two years which was found to be aggravated due to stress and strain of military service. 

The applicant filed an application for a disability pension with the Principal Controller of Defence Accounts (Pensions), Allahabad – PCDA (P) – but the same was rejected without carrying out his physical examination, by declaring his disease of hypertension as NANA. Aggrieved thereby, the instant application was preferred under Section 14 of the Armed Forces Tribunal Act, 2007.

The Court relied on the judgment in Ex. Sapper Mohinder Singh v. Union of India, Order dated 14-01-1993 in Civil Appeal No. 104 of 1993, where it was held that medical board’s decision cannot be overruled by a higher chain of command without physical medical examination of the patient. In view thereof, the decision of PCDA (P), Allahabad declaring the second disability of hypertension as NANA was set aside, and it was held that the applicant was entitled to a disability pension at 30 per cent for two years.[Hav Raj Bhan Singh v. Union of India, Original Application No. 700 of 2017, Order dated 18-02-2019]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ajay Bhanot, J. dismissed the petition by stating that one illegality cannot be weighed on the illegality of some other individual.

The petitioner through his counsel Awadhesh Prasad has contended that he was not allowed to appear for the examination in the respondent university as his attendance was 38% and not the minimum set by the university which was 80% but that was not the point of his contention. He submits that one Prateek Singh with 30% attendance was permitted to appear in the examination having attendance less than him.

The Court was of the view that one illegality cannot become the basis for another illegality. An individual has to succeed on the footing of his own rights and cannot base his claim on illegality committed by an authority to favour another person. Accordingly, the petition was dismissed. [Prince Namdev v. State Of U.P.,2018 SCC OnLine All 3109, Order dated 18-12-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: The High Court of Punjab and Haryana decided on the matter arising before it from a civil suit pending before the Court of Civil Judge (Junior Division), Samrala, the issue whether Sucha Singh (petitioner witness), who was residing at USA, can be allowed to be examined by way of Video Conferencing.

The Court vide order dated 16.10.2015 passed in CR 6571 of 2014 allowed the same stating that the witness can be confronted with the documents with close proximity to the camera. Petitioner was given liberty to choose a public authority where such facility was available and inform the Court. Alternatively, the petitioner was given option to identify the Indian Consulate in the nearest place from his residence and produce the Court order to secure the permission for hearing. The petitioner was to make himself available during the court working hours in India and give a date which is mutually convenient to the Court and the Consulate or the Public Office.

The Court was of the view that the evidence of the petitioner was very material and therefore his evidence was required to be recorded. However, noticing the difference of time between India and USA, the Court was of the opinion that approaching the Public Authority at night time to allow video conferencing facility was unfeasible. The Court opined that as video conferencing is now available through many applications like Facetime, Whatsapp, Skype etc. there is no necessity of approaching the nearest Consulate.

The Court allowed examination of the petitioner by way of video conferencing through Mobile or Computer on an application, and the time and date of the same would be communicated to the trail court. The witness is to be identified by the opposite party or any other person nominated by them. The Court further ordered supply of photocopy of any document which is sought to be put to the witness in advance to the opposite party and witness himself, so that he may answer on the said document. [Sucha Singh v. Ajmer Singh, 2018 SCC OnLine P&H 637, order dated 17-05-2018]

Case BriefsHigh Courts

Calcutta High Court: A  Division Bench comprising of Joymalya Bagchi and Ravi Krishan Kapur, JJ.  disposed of the criminal appeal filed by the appellant by ordering his further examination under Section 313 CrPC.

In the case at hand, most of the prosecution witnesses turned hostile. However, the trial judge relied on the dying declaration of the victim, who, according to PW 15- the doctor who treated the victim, had suffered burn injuries due to the pouring of hot mustard oil. Learned counsel for the appellant was before the High Court assailing the said dying declaration on various grounds including that such circumstance was not placed before the appellant during his examination under Section 313 CrPC.

The High Court perused the record and found that in fact such circumstance was not put to the appellant during his examination. The Court held it to be settled law that any circumstance which may be used against an accused must be placed to him during his examination under Section 313. Such an exercise is not an empty formality but a facet of natural justice. While deciding the appeal, the Court was not unmindful of the fact that every infraction of the aforesaid requirement would not vitiate the trial. However, if such infraction is of a grave nature, and prejudices the accused or occasions failure of justice, it shall result in a mistrial. In the instant case, the Court noted, most of the PWs turned hostile, and as such, the dying declaration if believed by the court, would be the most vital circumstance pointing towards guilt of the appellant. In such circumstances, the Court ordered the further examination of the appellant under Section 313 by putting questions before him in relation to the dying declaration. The Sessions Judge was directed to complete the exercise within four weeks. [Sk. Anowar v. Moinak Bakshi, 2018 SCC OnLine Cal 3896, dated 22-6-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): In a landmark case CIC held that a candidate can seek answer sheets of other candidates and that this is not marred by Section 8(1)(e) and Section 8(1)(j) of RTI Act. However, it is subject to Sections 3 and 6.

The departmental examination which was conducted to decide the promotion on the job for the post of EO/AO comprised of four papers, out of which three were objective and one was descriptive in nature. Since the fourth paper was descriptive, no model answers were prepared. Around 3,000 candidates appeared in the exam out of which only 5 candidates were selected and this appellant was qualified but was not in the final list of four selected candidates as there were only four vacancies while the appellant stood at Number 5. Appellant wanted model answers for the Fourth Question paper also. The public authority has disclosed the questions and answers of all the candidates regarding three papers but refused to give four answer-sheets of four qualified candidates to the appellant. The appellant claimed that he wanted to check the answers given by four who topped above him and where he lacked in and if he was really ineligible to secure promotion.

The legality of demanding answer sheet in the examination is in principle upheld by the Supreme Court in CBSE v. Aditya Bandhopadhyay, (2011) 8 SCC 497 provided that the request is made during a reasonable time in which the authorities are expected to retain the answer scripts. SC held that answer book also does not fall under any of the exemption provided under (a) to (j) of sub-section 1 of Section 8 of RTI Act. So, an examining body does not hold the evaluated answer books in a fiduciary relationship under Section 8(1)(e).

In Kewal Singh Gautam v. State of Chhattisgarh, AIR 2011 Chh 143, Chhattisgarh High Court held that conduct of examination by the departmental agency for promotion in Govt. department, are not private activities, but in public domain and the checking and evaluation of answer sheet by an examiner and the marks given by him upon assessment of performance has nothing to do with the privacy of either the examiner or those who are responsible for conducting the examination so Section 8 (1)(j) is not attracted.

In Centre of Earth Science Studies v. Dr. Mrs. Anson Sebastian 2010 SCC OnLine Ker 541, where one employee sought information pertaining to documents relating to domestic enquiry against another employee and also for getting entries in confidential report of six other employees of the appellant, repelling the claim of exemption under Section 8(1)(j) of the Act of 2005, the Division Bench of High Court of Kerala held that provision of Section 8(1)(j) are not attracted.

CIC analysed that in CBSE v. Aditya Bandopadhya, (2011) 8 SCC 497 the Supreme Court said no, but on certain practical issues. The CBSE pleaded that if it has to share certified copies of answer-sheets of other to each and every candidate seeking under RTI, it would lead to chaos and divert substantial resources. In UPSC v. Angesh Kumar,  (2018) 4 SCC 530,  the Court read the inherent limitation in Sections 3 and 6 as pertaining to revelation of information that is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. The Supreme Court referred to the problems in showing evaluated answer sheets in the UPSC Civil Services Examination in Prashant Ramesh Chakkarwar v. UPSC, (2013) 12 SCC 489.

CIC observed that the most important point was that the rejection in CBSE and UPSC cases was not based on any exception under Section 8(1) including (e) & (j). CIC concluded that no such difficulty exists in the present case and the appellant was entitled to get copies of answer sheet of the four candidates who topped. [Shailendra Kumar Singh v. PIO, EPFO, CIC/EPFOG/A/2018/614958, decided on 08-06-2018]

Legislation UpdatesNotifications

G.S.R. 503(E).- In exercise of the powers conferred by Section 48 of the Central Goods and Services Tax Act, 2017 (12 of 2017) read with sub-rule (3) of Rule 83 of the Central Goods and Services Tax Rules, 2017, the Commissioner, on the recommendations of the Council, hereby notifies the National Academy of Customs, Indirect Taxes and Narcotics, Department of Revenue, Ministry of Finance, Government of India, as the authority to conduct the examination as per the said sub-rule.

[F. No.349/58/2017-GST(Pt.)]

Ministry of Finance

Case BriefsSupreme Court

Supreme Court: After Senior Advocate Arvind Datar brought to the notice of the Court that the Central Board of Secondary Education (C.B.S.E.) has passed an order directing all the students to produce Aadhar number to register themselves for the National Eligibility-cum-Entrance Test (NEET) examination, the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ, directed:

“the students who intend to register in the said Board for NEET examination and for any other All India examinations, need not necessarily produce the Aadhaar number for the present, but they may be asked to produce any alternative identification number, such as ration card, passport, voter ID, driving licence and bank account.”

The Court also asked C.B.S.E. to upload the necessary information on their website so that students are not affected.

The said interim order was passed during Day 15 of the Aadhaar Hearing where Senior Advocates like Shyam Divan, Kapil Sibal, Gopal Subramanium and Arvind Datar have been arguing on the issue of Aadhaar being made mandatory by the Government despite various interim orders passed by the Supreme Court. Senior Advocate and Former Finance Minister P. Chidambaram had begun his submissions on the issue of Aadhaar Act, 2016 being passed as a Money Bill. He will continue his arguments on the next date of hearing i.e. March 13, 2018, after which the Court will decide on whether or not to pass an interim order on the issue of extending the deadline for linking Aadhaar to Bank Accounts. As per the present deadline, it is mandatory to get the Aadhaar linked to the Bank accounts by March 31, 2018. The Court had earlier, on 15.12.2017, extended the deadline for linkage with Schemes, Bank Accounts, Mobile Phones from December 31, 2017 to March 31, 2018. [Justice K.S. Puttaswamy v. Union of India, Writ Petition (Civil) No.494/2012, order dated 07.03.2018]

Also, read the highlights from the ongoing Aadhaar Hearing before the 5-judge bench:

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Case BriefsHigh Courts

Punjab and Haryana High Court: In the matter where 2 candidates who had topped the Haryana Civil Services (Judicial) examination in General & reserved category, were alleged to have leaked the paper for money, a 3-judge bench of Rajesh Bindal, Tajan Gupta and GS Sandhawalia, JJ has been formed to adjudicate the matter on urgent basis as the result of H.C.S. (Judicial Branch) Preliminary Examination is held up and the entire recruitment process has been put on hold.

On 28.08.2017, the single judge Kuldip Singh, J had referred the matter to a larger bench, considering the urgency of the matter as there is already shortage of judges in subordinate courts and also the fact that the allegation relates not only to the leakage of the Preliminary Examination paper but to the leakage of the whole package involving the main examination, which is yet to be conducted and for which paper was yet to be set and also the process of interview. The single judge had also asked the Registrar (Recruitment) of the Punjab & Haryana High Court to file an affidavit stating as to who had handled the examination papers right from the time it was set till it was distributed in the examination hall and also disclose the names of the officials/officers, who were deputed in handling and printing of the papers officially and whether anybody else entered the room, where the papers were printed without being deputed for the same.

Consequent to the reference of the single judge, the 3-judge bench sat, on 30.08.2017, to hear the matter but listed it on 06.09.2017 after it was brought into it’s notice that the High Court, that is represented through Registrar General, was, in the order dated 16.8.2017, impleaded through Registrar (Recruitment) and hence, necessary correction would require to be carried out.

As per the results of the preliminary examination that was held on 16.07.2017, the 2 girls, who have allegedly leaked the papers, have topped in the general category and reserved category with exceptionally high marks and both have minimum errors. [Suman v. State of Haryana, CRM-M No. 28947 of 2017, order dated 30.078.2017]

Case BriefsHigh CourtsUniversities and Educational Institutions

Kerala High Court: With reference to a pregnant student seeking exemption from the rule of requisite attendance in order to appear for the second semester examination in B.Ed course, the Court categorically held that “pregnancy was an optional choice and that cannot be a reason to permit a student to deviate from the requirements of a regular course of study, and the insistence to adhere to the course regulations cannot be termed to be a negation of the preferential treatment to women enshrined under the Directive Principles or in derogation of the values of motherhood.”

The petitioner was not permitted to appear for the examination being short of the minimum required attendance of 75% to which she contended that she had failed to attend the classes due to her advanced stages of pregancy and sought an exemption for the same.

The petitioner relied on a judgment of a Single Judge of the Delhi High Court in Vandana Kandari v.  University of Delhi, 2010 SCC Online Del 2341,  where in similar circumstances, it was held that no relaxation in attendance could be made, in accordance with the rules of Bar Council of India and Ordinance of the university. Referring to the Directive Principles, the Judge however observed that by depriving/detaining  a student on the ground of pregnancy  would not only be completely in negation of the conscience of the Constitution but also of the women rights and gender equality, akin to making motherhood a crime.

Dissenting from the abovesaid judgment, the Court held that the petitioner cannot be accorded any exemption from the minimum attendance requirement in order to appear for the examination, only on account of her pregancy. The Court emphasised upon the role of a teacher in nation building and that the requirement to attend minimum number of classes is to equip the students to discharge the professional duties with high standards, commitment and orientation in the chosen vocation, by way of lectures, seminars, practicals, as mere bookish knowledge is not the criteria of judging a professional.

Dismissing the petition, the Single Bench of Vinod Chandran, J, firmly held that the petitioner ought to have definitely adjusted her priorities when continuing a higher education, especially in a course which trains her to be a professional teacher. Pregnancy was an optional choice and that cannot be a reason to permit a student to deviate from the requirements of a regular course of  study.

Further, insistence to adhere to the course regulations cannot be termed as a negation of the preferential treatment to women enshrined under the Directive Principles or in derogation of the values of motherhood. Having chosen to expand her family she can be deemed to be on a sabbatical from regular studies, which cannot be turned to her advantage for wriggling out of the terms and conditions of a regular academic course. The Court observed that personal preferences and individual predilection should bow down to the larger public interest and societal obligations. [Jasmine V.G. v. Kannur University, 2016 SCC OnLine Ker 3221, decided on May 24, 2016]