Tripura High Court
Case BriefsHigh Courts

   

Tripura High Court: In a case relating to a revision petition filed by the State, challenging the order of the Sessions Judge allowing the petition filed by the accused for re-examination of witnesses under Section 311 Code of Criminal Procedure (CrPC) at the stage of examination of accused under Section 313 CrPC, T. Amarnath Goud, J. observed that a legal proposition that the Court cannot exercise power of re-summoning any witness, if once that power was exercised, cannot be accepted, and the power cannot be whittled down merely on the grounds that prosecution discovered laches only when the defence highlighted them during final arguments.

In this case the prosecution closed its evidence on 23.05.2022 and the next date was fixed on 03.06.2022 for examination of the accused persons under S. 313 of CrPC. On 03.06.2022, accused-persons filed a petition under Section 311 of CrPC with a prayer to recall and re-examine some witnesses, on the pretext that in his examination- in- chief one of the witnesses stated a statement that is missing from the statement recorded under Sections 161, 164 of CrPC.

The Court observed that the law is common that application of Section 311 of CrPC cannot be used to fill up the lacuna and the examination of the witnesses cannot be an endless process. Since the statement has been exhibited and is on record, calling of the witnesses for the purpose of contradiction will not serve any practical purpose and will only delay the trial. However, the very spirit of Section 311 of CrPC is to extend an opportunity for further re-examination or re-cross examination to either of the party if the same is essential to arrive at a just decision in the case.

The Court further observed that “lacuna in prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna”.

Moreover, it viewed that no party in a trial can be foreclosed from correcting errors, and if proper evidence was not adduced or a relevant material was not brought on record due to any in-adventure, the Court should be magnanimous in permitting such mistakes to be rectified, more so, when the rights conferred by Constitution of India upon a citizen.

The Court did not appreciate the argument of the state that the eye-witness might turn hostile in collusion with the accused-person, and observed that “to meet the ends of justice, the door cannot be shut against the accused-person without giving an opportunity and the State Government, having all infrastructures and fully equipped, cannot expressed its doubt against its witnesses. They can take all measures in the interest of truth to protect the witnesses from the clutches of the accused-person if there is any such apprehension of hostility”.

[State of Tripura v Sumit Banik, 2022 SCC OnLine Tri 582, decided on 12.08.2022]


Advocates who appeared in this case :

For Petitioner: Public Prosecutor S. Kar Bhowmik

Public Prosecutor R. Datta,

Advocate Srikanta Bol

For Respondent: Sr. Advocate P. K. Biswas

Advocate. P. Majumder,

Advocate. A. K. Banerjee

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: While dismissing the writ petitions filed challenging the different criteria set for men and women in the Physical Eligibility Test as notified for the Excise Constable (General Selection), Examination 2016, Saurabh Shyam Shamshery, J. held the same to be non-arbitrary in nature.

Petitioners participated in recruitment process to the post of ‘Excise Constable' according to selection procedure prescribed under Uttar Pradesh Direct Recruitment to Group ‘C' Post in pursuance of an Advertisement issued by the U.P. Subordinate Service Selection Board. There were three major issues for consideration:

(a) Whether challenge to Rules of a recruitment process at instance of unsuccessful candidates would be permissible?

(b) Whether different set of criteria/yard stick for Physical Efficiency Test for male and female candidates has allowed arbitrariness being violative of Article 14 of the Constitution?

(c) Arbitrariness if any, has resulted into an anomaly which leads to selection of 143 female candidates i.e. much more than their 20% reserved quota of 81 seats?

Regarding issue (a) Senior advocate for the petitioner argued that petitioners approached this Court before final result was announced and had challenged the criteria of different yardstick for physical efficiency test for male and female being arbitrary. 143 female candidates were selected much beyond to their 20% quota (81 seats) and it is an eventuality which appears after the final result, as expected by the petitioners and therefore, this petition was filed even before final result was announced, therefore, present writ petition still maintainable at instance of the petitioners not withstanding being unsuccessful candidates.

Counsel appearing on behalf of respondents and other Advocates for other respondents opposed above submission that it is settled law that after participation in recruitment process upto the final stage, it is not open for an unsuccessful candidate(s) to challenge the criteria/rules of selection.

The Court reproduced the relevant pats of the judgment in Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 and Ramjit Singh Kardam v. Sanjeev Kumar, (2020) 20 SCC 209 noting that petitioners had participated in the recruitment process with open eyes, having complete knowledge of different criteria of physical efficiency test for male and female, however, when they anticipated likely to be unsuccessful in final result, they approached this Court just before declaration of final result, challenging the entire notification as well as criteria of physical efficiency test. Thus, the Court was of the opinion that the petitioners have to be estopped from challenging recruitment process as well as physical efficiency test being different for male and female after they have participated therein with open eyes.

Regarding issue (b) and (c) Senior Counsel on behalf of petitioners submitted that there was discrimination between male and female candidates in respect of their respective criteria for physical efficiency test being different and it was comparatively easy for female candidates to score more marks in comparison of male candidates.

Counsel for the Subordinate Services Selection Board submitted that criteria for male and female are on different yardstick details thereof were part of advertisement and also, mentioned in earlier part of this judgment. The different criteria were based on basis of different physical ability of a male and a female.

The Court opined that ground of arbitrariness appears to be baseless on face of it and as it is raised without considering the ratio behind fixing of different yardstick for physical efficiency test for male and female. The Court mentioned the examples of the recently held CommonWealth Games where the difference of criteria of physical efficiency test is based on physical strength of a male and a female as in number of research papers it has come that in a normal situation male has more physical strength than her female counterpart.

The argument to challenge criteria of female for physical efficiency test is not only without any legal basis but is also against women empowerment.”

The Court relied on Saurav Yadav vs. State of Uttar Pradesh & Ors, (2021) 4 SCC 542, wherein it has been categorically held if number of female candidates have satisfied their quota and have entered into general list, on their own, merit, then separate list of women candidates is not required. Thus, issue (b) and (c) was accordingly decided against the petitioners. concluding “Women empowerment can make the society powerful.”

[Pramod Kumar Singh v. State of U.P., Writ – A No. – 4225 of 2022, decided on 30-08-2022]


Advocates who appeared in this case :

Ajay Kumar Rai, Alok Mishra, Binod Kumar Mishra, Advocates, Counsel for the Petitioner;

C.S.C., Chandan Sharma, Siddharth Singhal, Uday Pratap Singh, Vinit Kumar Sharma, Seemant Singh, Advocates, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: Sanjay Dwivedi, J. dismissed a revision petition filed questioning the validity of the order passed by the Sessions Judge whereby the charge had been framed against the applicant by the trial Court under Sections 294, 333, 353, 307, 302 of IPC and under Section 25-1(B)(B) of Arms Act, 1959.

As per the facts of the case, after registration of FIR, the injured got hospitalized and was given treatment in Govt. Hospital in which the Medico-Legal Certificate (MLC) was prepared showing that the complainant/injured had received an incised wound which was opined as simple injury. The injured was later on discharged from hospital on the same day, i.e. 07.08.2021 because the injury sustained by him was neither grievous in nature nor dangerous to life. Case against the applicant was under Sections 294, 333, 353 and 307 of IPC. Later, on 20-08-2021 when the injured died then the offence of 302 was also added.

The Counsel of the applicant submitted that the applicant was granted bail considering the fact that the injury was simple and that the injured died of septicaemia on 20-08-2021. He submitted that offence of 302 of IPC was not made out as it was due to negligence on the part of the doctors as they had not properly treated the injured and medication was not up to the mark. It was further contended that the Trial Court did not appreciate the facts in appropriate manner and observed that the cause of death was related to the injury sustained and caused by the present applicant.

Panel Lawyer appearing for the respondent/State submitted that the cause of death shown by the doctor is septicaemia which admittedly got developed in an injury caused by the present applicant and as such, offence under Section 307 has rightly been converted into Section 302 of IPC.

The Court was of the opinion that at this stage it is very difficult to form an opinion even by the trial Court at the time of framing of charge that the cause of death was not directly related with the injury caused by the applicant. The Court believed that if the charge of Section 302 has been added at the time of framing of charge on the basis of opinion given in the MLC, the same can be altered only after examination of the doctor who had given opinion.

The Court stated that at this stage, trial Court cannot indulge in critical evolution of evidence, that can be done at the time of final appreciation of evidence after conclusion of trial.

The Court while dismissing the appeal held that the Trial Court did nothing wrong because it can very well form an opinion at the time of trial or after conclusion of trial whether offence under Section 302 is made out or not. The Court further noted what was said in Veerla Satyanarayana v. State of Andhra Pradesh, (2009) 16 SCC 316 wherein the Supreme Court has held that if death is caused due to septicaemia, offence under Section 302 of IPC is rightly made out. Thus, the Court was also of the opinion that the order passed by the trial Court does not suffer from any patent or material irregularity and at this stage, it is not proper for this Court to interfere in the same or to form an opinion that the offence under Section 302 is not made out against the applicant.

[Harsh Meena v. State of Madhya Pradesh, 2022 SCC OnLine MP 1971, decided on 17-08-2022]


Advocates who appeared in this case :

Sankalp Kochar, Bhavil Pandey, Advocates, for the Applicant;

Prakash Gupta, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: Saurabh Shyam Shamshery, J. dismissed the writ petition which was filed praying to issue a mandamus commanding and directing to respondent 3 to exempt the age relaxation to the petitioners for Assistant Prosecution Officer and accept the application form of the petitioners for Assistant Prosecution Exam.-2022.

All the petitioners were candidates of recruitment process for the post of Assistant Prosecution Officer Exam – 2022 and their counsel contended that no recruitment process for Prosecuting Officers could be conducted after 2018 and after four years now in 2022, present recruitment process is commenced. During 4 years, many candidates have become over aged and by fixing cut off date for maximum age of 40 years to be 1-7-2022, respondents have declined petitioner’s legitimate right to participate in the examination and cut off date for maximum age ought to be 1-7-2021. It was further submitted that date of Advertisement was 21-5-2022, therefore, year of recruitment ought to be 1-7-2021 to 1-7-2022 and accordingly cut off date for maximum age ought to be 1-7-2021 and not 1-7-2022.

Counsel for respondent 2 submitted that advertisement was issued on the direction of State, therefore, respondent 2 has no submission on merit, however, Advertisement was issued on 21-4-2022, therefore, recruitment year would be 2022-23 and reckoning of date would be 01-07-2022, as such, cut off date is rightly fixed.

The Court noted that Covid-19 pandemic has startled and affected not only day to day life of a human being but has affected State’s normal working and an example of it is the recruitment process in question which is scheduled after four years. Resultantly, petitioners became over aged.

The Court however after hearing the parties and the evidence on record found that in the recruitment process, candidate between 21 years to 40 years are eligible to participate and there is no limit of attempts, therefore, petitioners were eligible to participate in recruitment held prior to recruitment held in 2018, therefore, the argument that they have been denied the right of legal expectation has no force. The court considered the fact that it was beyond control of the State, therefore, State cannot be faulted for not conducting recruitment examination during Covid-19 pandemic.

It was noted that Assistant Prosecution Officer examination 2018 was advertised by Advertisement dated 28-12-2018 and cut off date for maximum age was forced to 01-07-2018 whereas for Assistant Prosecution Office examination, 2022 (Advertisement dated 21-4-2022), cut off date for maximum age is fixed i.e. 1-7-2022. The relevant cut off date is fixed according to year of advertisement. The Court distinguished on facts the case of High Court of Delhi v. Devina Sharma, (2022) 4 SCC 643 relied on by the petitioners where the age was relaxed on basis of submission of the recruitment body as in the present case State has fixed the cut off date and being a policy matter not be disturbed or interfered not being to be 1-7-2022, which has followed earlier pattern arbitrarily.

The Court observed that it is settled proposition that due to inaction on the part of the State Government in not filing the posts year-wise, the candidates cannot get a right to participate in the selection process being over aged and that nobody can claim as a matter of right that recruitment on any post should be made every year. State has taken a decision which cannot be interfered except it is arbitrary which the petitioners have failed to make out a substantial case. In the present case, Commission has advertised on 21-4-2022, therefore, calendar year would be 01-01-2022 to 31-07-2000 and accordingly date would be first day of July of Calendar year i.e. 1-7-2022. Commission and State have followed the provisions correctly. Fixing of date cannot be said to be arbitrary.

The Court finally reproduced relevant paragraphs of the judgment in Vijay Kumar Singh v. State of U.P., 2022 (7) ADJ 677 (LB) and in placing reliance dismissed the writ petition finding no illegality and irregularity in fixing of reckoning date in terms of date of advertisement.

[Ajay Kumar Yadav v. State of U.P., 2022 SCC OnLine All 542, decided on 11-08-2022]


Advocates who appeared in this case :

Somendra Singh, Advocate, Counsel for the Petitioner;

C.S.C., Avneesh Tripathi, M.N. Singh, Advocates, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Maharashtra Administrative Tribunal MAT
Case BriefsTribunals/Commissions/Regulatory Bodies

   

Maharashtra Administrative Tribunal, Mumbai: The coram of Mridula Bhatkar (Chairperson) and Medha Gadgil (Member) (A) while dealing with an application by a transgender (applicant) to allow her to apply for the post of Police Sub Inspector as a Transgender candidate, directed the State to come out with a clear policy regarding provision of the posts for other gender.

The applicant by birth has male sex. However, has opted for female sex. The applicant, therefore, has applied for the post of P.S.I pursuant to the Advertisement dated 23-06-2022 as a transgender candidate as the said option of transgender is provided by the M.P.S.C. In the application Form, the applicant has also opted to be considered as female candidate. The applicant further prayed for reservation of posts form Transgender Persons in the recruitment to the 800 posts as set out in the said advertisement.

Counsel for the applicant submitted that as per Article 16(1) & (2) of the Constitution of India, the applicant cannot be discriminated on the basis of sex or gender. He further submitted that the applicant is a Graduate in Engineering (Electrical) and Post Graduate in Technology (Electrical Power System Engineering). However, she has opted for this Government service and prays that she should not be disqualified in the physical test if at all she clears the examination.

M.P.S.C made a statement that the Application Form of the applicant is accepted by M.P.S.C and the applicant will be allowed to appear for the Preliminary Examination which is going to be held on 08-10-2022.

The Tribunal reiterated National Legal Services Authority v. Union of India, (2014) 5 SCC 438 to enable the Respondent-State to take the necessary steps while considering the candidature of transgender or candidates who are from the other sex while giving them employment in all the areas.

“135.2 Transgender persons’ right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

We, direct the Centre and the State Government to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”

The Tribunal thus expected from the Respondent-State that it will come out with a clear policy regarding provision of the posts for other gender within six months especially in respect of the Police Department as the candidate has to undergo specific physical test in the Police Department. The Tribunal directed the respondent 2, G.A.D and respondent 6, Social Justice and Special Assistant Department, to file affidavits in reply stating therein as to what steps are taken by the Government of Maharashtra in implementing the order of the Supreme Court in the case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[Vinayak B. Kashid v. Maharashtra Public Service Commission, Original Application Nos 644 of 2022, decided on 01-08-2022]


Advocates who appeared in this case :

Shri Kranti L.C, Advocate, for the Applicant;

Swati Manchekar, Chief Presenting Officer, Advocate, for the Respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

TATA
Case BriefsHigh Courts

Delhi High Court: While deciding a writ petition by a student who was not permitted to appear for a competitive exam because she was wearing a kara, the Single Judge Bench of Rekha Palli, J. held that “It is highly unfortunate that a specialized body like the DSSSB, which is regularly conducting examinations for selection to various posts in the public sectors in Delhi and in which examinations, a large number of Sikh candidates regularly appear, did not bother to take any timely action to inform the candidates that if they were desirous of wearing a kara and/or kirpan, they were required to reach the examination centre at least one hour before the reporting time.”

Facts and legal trajectory of the case:

The petitioner, who was a lady belonging to the Sikh community, was aggrieved by the action of the respondents because they did not permit her to appear in the examination for selection to the post of PGT-Economics (Female) held on 17-07-2021. Although, she had reached the examination centre before the closing time, she was denied permission to appear for the exam because she was wearing her metallic kara and a full-sleeved dress. The petitioner filed a writ petition seeking special arrangements to be made for holding a fresh examination for the one post which was directed to be kept vacant pursuant to the interim directions issued by the High Court on 08-09-2021.

Issues:

Whether the respondent was justified in denying permission to the petitioner to appear for the examination?

Analysis and findings:

The Court noted that the notification informing the candidates that if they wanted to appear in the examination wearing a kara and/or kirpan, they should reach the examination centre at least one hour before the reporting time, was issued two days after the examination had been conducted, i.e., 19-7-2021. The Court also noted that the respondents could not have denied permission to the petitioner from appearing in the examination, because the examination was to commence at 2 pm and she had reported at the centre at 1:28 pm. Thus, the respondents had enough time to properly check her kara for any possible misuse, which they didn’t do.

The Court held that by not informing the prospective candidates about this specific examination requirement and preventing the petitioner from appearing in the examination till she removed her kara and permitted the sleeves of her dress to be cut to half, the respondents have wrongly prevented the petitioner from appearing in the examination. Thus, this action of the respondents is unsustainable and liable to be quashed.

The Court also held that although one post for PGT-Economics (Female) was directed to be kept vacant by the interim order issued by this Court, the fault of the respondents cannot be a ground to permit the petitioner to be appointed against the available vacant post as the examination in question was a competitive examination. Thus, the petitioner would have to appear for a fresh examination for that post.

Conclusively, the Court gave directions to the DSSSB “to ensure that adequate notice regarding this additional requirement for candidates desirous of wearing a kara and/or kirpan to reach the examination centre one hour before the reporting time, be given well in advance so that no undue hardship is caused to them as caused to the petitioner in the present case.”

Lastly, the Court observed that “It is expected that not only the DSSSB but all other recruiting agencies who conduct similar examinations will take appropriate steps in this regard well before the conduct of the examinations.”

[Manharleen Kaur v. Union of India, 2022 SCC OnLine Del 2011, decided on 11-07-2022]

Foreign LegislationLegislation Updates

On 2nd June, 2022, Canadian Minister of Industry notified amendments to Patent Rules. Formulated under the Canada-United States-Mexico Agreement (CUSMA), the recent amendments made to the Patent Rule eases out the proceedings and allow applicants to avoid unnecessary delays in application of a patent.

 

Key Amendments:

  • With the amendment of Rule 1, the definition of ‘Presentation date’ now excludes the ‘presentation date’ of category 2 application mentioned in sub-section 186(2).
  • Erroneous information by applicant:

If the Commissioner is provided with any erroneous information, he may extend the period of payment of fee mentioned in Schedule II and III. Upon finding the source of such information the applicant files for extension or in case of insufficient payments, such extensions are allowed by Commissioner with new sub-rule (4) under Rule 3.

  • Excess claim fee introduced:

Payable in two given situations, with the modification in Schedule II of the Rule, fee paid for each claim of 20 is $100 (CAD). In case of Small entity fee, each claim is paid at $50 (CAD). This fee is payable at-

  1. the time of examination of an application for a patent.
  2. the time final settlement of the application for a patent.
  • Excess claim Fees is newly introduced concept in Canada to allow applicants to claim in limited numbers and allows the applicants to mitigate against such costs.
  • Request for Continued Examination (RCE):

In case of defects caused in the application of a patent, the examiner may issue a notice to comply with the Rules/Acts and submit arguments in not less than four months after such notice. Similarly, as per Rule 86, in case of rejection of application, the examiner may call for ‘Final Action’ If “three” such notices are sent to the applicant already, the examiner may, under new Rule 85 (1), inform the applicant the need to request  for a ‘continued examination’. A prescribed fee of $816 (CAD) has to be paid along with such request for examination.

  • The ‘continued examination’ may be subsequently extended, if previous two notices fail to be served accordingly.
  • Final Fee:

With the modification Rule 87(1), the final fee for a patent is-

    1. for small entity- $153 (CAD)
    2. for others- $306 (CAD)
  • After the implementation of new rules, no amendments will be applicable on after the notice of allowance or conditional notice of allowance. In case of obvious errors under Rule 100(2) the exceptional amendment will be allowed. The drawings which are set aside by the Commissioner, any amendments made to the application during that period from beginning of that till the end of that day will stand unamended.
  • Refund of Fees: Only those fee which are paid under subsection 85(1)(3) are allowed for refund.

*Shubhi Srivastava, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., reversed the impugned order of the Rajasthan High Court whereby the High Court had directed  Income Tax Department to grant grace marks to the applicant and treat him as a person belonging to general category.

Restoring the findings of the Central Administrative Tribunal, the Court held that the CBDT had introduced a grace marks policy to enable marginally failing candidates to pass the examination and the purpose of benefit was not to allow the reserved category candidate to switch over to the general category. The Court held,

“…once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks.”

Background 

The original applicant, who belonged to the Scheduled Tribes (ST) category, was working as a lower Division Clerk in the Department of Income Tax. Later on, he was promoted to the posts of Tax Assistant, Sr. Tax Assistant and Office Superintendent.

With a view to regulate the departmental examination for Income Tax Inspectors, the competent authority introduced modified rules for Departmental Examination for Income Tax Inspectors – 1998. As per the modifications, a candidate securing a minimum of 45% marks in five subjects except in Hindi was entitled to be declared as pass. For the members of SCs and STs, the minimum qualifying mark was 40%. Further, for the benefit of those candidates who marginally failed to secure minimum marks, irrespective of their category, on falling short of passing up to five marks, the Central Board of Direct Taxes (CBDT) introduced the ​​​​​policy of awarding grace marks.

It was the case of the original applicant that he had secured more than 45% marks in each subject except the subject of “Other Taxes”. Hence, he was entitled to grace marks in the subject of “Other Taxes”, but the same was not given to him as he was treated qualified in the category of Scheduled Tribes. The applicant contended that since he had got 43 marks in “Other Taxes” had he been given two grace marks, he would have been declared eligible for promotion against general vacancies.

Findings of the Tribunal and the High Court 

The Tribunal, by a reasoned and detailed judgment and order, dismissed the application preferred by the applicant by observing that the CBDT circular providing grace marks cannot be interpreted to mean that a person, who has passed in his own category can be given further grace marks to enable him to move in the general category on his own merit.

However, the said order was reversed by the High Court of Judicature for Rajasthan at Jodhpur. The High Court had directed the Income Tax Department to extend the grace marks to the applicant in the subject of “Other Taxes” by treating him as a person belonging to general category.

Analysis and Conclusion  

Observing that the CBDT had introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination, the Court opined that once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks.

The Court explained that only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing up to five grace marks.

Therefore, the Court opined that the Tribunal had rightly not accepted the arguments of the applicant. Further, the Court held that the High Court, while passing the impugned judgment and order,​​​​​ had not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT.

Consequently, the impugned judgment and order were quashed and set aside. The judgment and order passed by the Tribunal dismissing the O.A. was restored.

[Union of India v. Mukesh Kumar Meena, 2022 SCC OnLine SC 525, decided on 28-04-2022]


*Judgment by: Justice M.R. Shah


Appearance by: 

For Union of India: Advocate Nachiketa Joshi

For the Applicant: Advocate Sumant Bhardwaj


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., issued notice to BCI to respond to suggestions made before the Court at the earliest with regard to introducing changes in Bar examination.

The instant appeal was filed by Bar Council of India (BCI) to assail the impugned order of the Gujarat High Court wherein the High Court had read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment Rules) under Section 28(2)(d)  read with Section 24(1)(e) of the Advocates Act, 1961so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.

Noticeably, Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrollment) Rules provide prohibition from admission of a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate. Noting the impracticality of the requirement to resign from work even before appearing for the exam, the High Court had remarked,

“The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood.”

As the case reached the Supreme Court, following interesting suggestions were made by the parties:

  1. Instead of reading down the Rules, suggestions were made to avoid link between enrollment and ability to take exams.
  2. It is a difficult decision of economic necessity for those in jobs to resign from job to write bar examination.
  3. It was debated by the BCI that persons in job wanting to take the Bar exam cannot be given provisional enrolment, however, a roll number can be issued to take the examination and that exam should be treated in furtherance the aspect of enrollment as and when it arises.
  4. A suggestion was made that succeeding in bar exam cannot give liberty to indefinitely postpone decision to seek enrollment or not. Thus, the result of the Bar exam, if successful, would hold good for three years within which the candidate can take the choice and if he continues his job for a longer period of time, he may be again required to take the Bar exam at the appropriate stage, as such long hiatus period may otherwise snap the link.
  5. Amicus Curiae K. V. Vishwanathan has suggested that there can be a viva exam for such candidates.
  6. Emphasis was also made on a more monitored process by the BCI to ensure that a law college which obtain recognition once, does not rest on that and maintain the parameters as set forth by the Bar Council.
  7. Instead of focusing on a rote ability, the Bar exam should focus on analytical thinking process to make the process of enrolment more meaningful.
  8. To restrain the candidates from taking advantage of random answers made without any consequence of a wrong answers, suggestion was made to introduce 1/4th negative mark for every wrong answer. However, the same need not be uniform throughout the paper but in certain nature of questions posed, and should be introduced in that particular section. Amicus Curiae pointed out that in UK the exams are based on the ‘Miller Pyramid Scheme’ of evaluation in all aspects of reading, writing, expression and communication of a prospective Bar entrance is evaluated. In USA some questions are marked with no provision of negative marking and there may be questions, in the very nature of things there, there may be more than one answer possible.
  9. Lastly, emphasis was also placed on evolving a fair system for juniors to find placement in chambers.

Considering the aforementioned suggestions, the Bench directed BCI to on the aforesaid process with expedition and issue instructions to S.N. Bhatt, senior counsel for BCI before next date of hearing. The matter is listed on 12-04-2022 for further hearing.

[Bar Council of India v. Twinkle Rahul Mangaonkar, C.A. No(s). 816-817 of 2022, decided on 15-03-2022]


Appearance by:

Amicus Curiae: K.V. Vishwanathan, Sr. Advocate

Others Present: R. Venkatraman, Amartya Sharan, Rahul Sangwan, M.G. Aravind, Chanakya Dwivedi, K. Sivagnanam, Advocates

For Appellant(s): S.N. Bhatt, Sr. Advocate, Durga Dutt, AOR, N.P.S. Panwar, D.P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Advocates

For Respondent(s): Anushree Prashit Kapadia, AOR, Megha Jani, Priyanka Rathi, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Meghalaya High Court: Sanjib Banerjee, CJ. while deciding in the matter between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service, pertaining to seniority between or among them, disposed the writ petition in favour of petitioners.

A combined examination was conducted for recruitment (advt, Nov 22, 2006) into the MCS and MPS by the State Public Service Commission. List of 74 successful candidates was released on 07-09-2010. It was observed by the Court that it may not always be possible to fill up all reserved seats since adequate numbers of candidates from the reserved categories may not be available. In such situation the vacant seats are carried forward to be filled in next appointment process as per the law and the merit list holds its value for a prescribed time.

The private respondent was appointed on 08-05-2012 from the merit list of 2010. A merit list was prepared clubbing all recruited in 2010 and 2012. This step was termed “patently absurd and completely without any element of rationality or logic” by the High Court. Furthermore, it was observed that “A person who has been recruited or appointed earlier in point of time than another in the same post can never be equated with the person appointed later even to the same post.”

The State claimed that seniority between the persons who underwent the process of examination together has to be determined, irrespective of when such persons may have been appointed as per Rule 16(4) of the Meghalaya Civil Service Rules, 1975. The same was held irrelevant in the present circumstance by the Court. Also it was held that the seniority in a particular post, in a sense, indicates who had occupied that post earlier. The Court allowed the writ petition by holding that “the 2010 recruits to the entry-level post have to be regarded as senior to the 2012 recruits to the same entry-level post, irrespective of whatever future considerations may arise in determining their cases for promotion to the next level.”[Winje Rosalie G. Momin v. State of Meghalaya, 2022 SCC OnLine Megh 10, decided on 10-02-2022]


Appearances by:

For the Petitioner/Appellant(s) : Mr AS Siddiqui, Sr.Adv with Mr AG Momin

For the Respondent(s) : Mr ND Chullai, AAG with Ms R Colney, GA Mr K Paul, Sr.Adv with

Mr S Thapa, for R/2

Dr. N Mozika, Sr.Adv for R3-9, 11-16


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

 Dwarka Courts, New Delhi: Deepak Wason, Special Judge (NDPS)five applications under Section 439 CrPC for grant of bail.

Counsels for the accused persons submitted that they had been falsely implicated in the present case. The accused Tajwar Rawat, Nikhil Kumar and Ishu were in custody since 19-9-2021 and accused Harvinder Singh was in the custody since 7-5-2021 and accused Ridalin was in the custody since 19-9-2021.

The prosecution emptied two sacks of contraband together and thereafter, put them into three sacks subsequently.

It was further added that the prosecution was required to draw samples independently from both the sacks and not after mixing the contents of both the sacks and such a procedure of drawing samples after emptying and mixing the content and putting them in different bags was against the procedure established by law.

Analysis and Decision

Court noted that, in the present case, ganja was taken from two cartons and thereafter, it was put into three plastic kattas. It appeared that the police officials had mixed the ganja taken from to cartons into three katas which were marked as D,E,F and sent to FSL for the examination which was contrary to the procedure prescribed under the law.

The Bench stated that all the accused persons were in custody since long, the investigation was complete, the charge sheet had already been filed and no purpose would be served by keeping all the accused persons in custody, hence all 5 bail applications were allowed. [State v. Ishu, SC No. 669-2021, decided on 22-1-2022]


Advocates before the Court:

Brijesh Kumar, Ld. Addl. PP for the State

Ajay Kumar, Counsel for the accused Ishu and accused Mayank Dhawan with both accused on bail

Mahipal Singh, Counsel for the accused Ishu

Rajesh Juneja, Counsel for the accused Tajwar Rawat with accused produced from JC

Tripurari Tiwari, counsel for the accused Nikhil Kumar

Akshay Bhandari and Digvijay Singh, Counsels for accused Harvinder Singh with accused produced from JC

Vishnu Shankar Jain and Marbiang Khongwir, Counsels for accused Ridalin Nongbet with accused produced from JC.

Legislation UpdatesRules & Regulations

The Central Government notified Boiler Accident Inquiry Rules, 2021. They shall come into force on the date of their publication in the Official Gazette.

Key features:

  • Inquiry of accidents: On receipt of a report of an accident to a boiler or boiler component under section 18 of the Act, a preliminary inquiry shall be conducted in the concerned State in whose jurisdiction the  accident has occurred.
  • Accidents resulting in any death: The Chief Inspector of the concerned State in whose jurisdiction any death has resulted due to the accident , based on preliminary inquiry, shall forward a report without delay  to the Technical Adviser in Form A.
  • Inquiry of accidents resulting in any death: Without prejudice to rules, where any death has resulted due to any accident, an inquiry shall also be conducted by the Central Government.
  • Constitution of inquiry committee: (1)The inquiry shall be conducted by an inquiry committee  consisting of the following, namely: 

(i) Technical Adviser Chairman;
(ii) a Chief Inspector or Director of Boiler Member;

(iii) a representative of Boiler and boiler component manufacturer or user of boilers in the Board
Member.

Note: The inquiry committee shall be constituted within fifteen days of receipt of report of accident resulting in any death from the Chief Inspector of the concerned state and inquiry shall be conducted within fortyfive days of receipt of report of accident from the Chief Inspector.

  • Procedure during inquiry: The inquiry committee shall make a careful examination of the damaged parts and shall take such measurements or sketches and may take such photographs for the purpose of report as they may deem necessary.
  • Use of Boiler after accident resulting in any death: The boiler shall not be put to use till the inquiry is completed.
Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and MR Shah, JJ has directed AIIMS to postpone the Institute of National Importance Combined Admission Test (INI CET) examination by at least a month, after doctors with an MBBS degree, aspiring for admission to the Post Graduate courses for the July 2021 session in the units of AIIMS (All India Institute of Medical Sciences), PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengaluru filed a petition calling AIIMS’ decision to conduct INI CET 2021 on 16th June, 2021, hasty.

It was argued,

“… the hasty decision taken by AIIMS to conduct INI CET 2021 on 16th June, 2021 has seriously prejudiced innumerable aspirants for admission to Post Graduate courses of the institutions of national importance, who are serving in Covid hospitals in various parts of the country. Many of them have been rendering services at Covid Centres located far away from the examination centres for which they have opted.”

The INI CET is being conducted to fill up 850 MD and MS seats in 6 units of AIIMS, PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengalure. As per submissions before the Court, about 80,000 doctors with the MBBS degree are expected to take the INI CET. Post Graduate courses of medical colleges, other than those mentioned above are through the NEET-PG, which has been postponed beyond 31st August, 2021.

In such circumstances, it was argued, that,

“It would be extremely difficult, if not virtually impossible for many candidates for the INI CET to reach their examination centres from their places of duty. Many of the doctors are exposed to and are running the risk of contracting Covid 19 and they may have to isolate and/or quarantine themselves. Even otherwise holding the INICET on 16th June, 2021 will result in spread of the virus and increase in Covid 19 cases.”

Hence, considering the current scenario and the prayers by the doctors, the Court was of the opinion that the fixing of the INI CET on 16.06.2021 is arbitrary and discriminatory, more so since other important examinations including Joint Entrance Examinations, Board Examinations etc. have been postponed.

The Court, hence, directed that the INI CET be postponed by at least a month from 16th June, 2021.

[Poulami Mondal v. AIIMS, 2021 SCC OnLine SC 424, order dated 11.06.2021]


For Petitioner(s): Mr. Sanjay R. Hegde, Sr. Adv.

Mr. Arvind P Datar, Sr. Adv.

Ms. Sonia Mathur, Sr. Adv.

Ms. Pallavi Pratap, AOR

M/S. Dharmaprabhas Law Associates, AOR

Dr. Charu Mathur, AOR

Mr. Chandrashekhar A. Chakalabbi, Adv.

Mr. Awanish Kumar, Adv.

Mr. Shiv Kumar Pandey, adv.

Mr. Anshul Rai, Adv.

Mr. Shikha Bharadwaj, Adv.

Mr. Abhinav Garg, Adv.

Mr. Sanjay Kumar Dubey, Adv

Ms. Tanvi Dubey, Adv.

Mr. Puneet Pathak, Adv.

For Respondent(s): Mr. Dushyant Parashar, AOR

Case BriefsSupreme Court

Supreme Court: The bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ has held that the Courts cannot issue mandamus to frame policy.

The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Also read: COVID 19 a “lame excuse”: Here’s why SC refused to allow extra attempt for UPSC CSE to last attemptees

It was argued before the Court that there is always a change in the upper age limit and number of attempts in different spell and that in the year 2015, the Union of India allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011.

However, as pointed out by the Union of India, there was a substantial change in the pattern of Civil Service (Preliminary) Examination 2011, in the given circumstances, it was considered appropriate to grant one more attempt in Civil Service Examination, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts.

The Court, however, noticed that the said instance cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Article 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance.

“Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.”

It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.  The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

“Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for  the reason that there was  a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.”

[Rachna v. Union of India, 2021 SCC OnLine SC 140, decided on 24.02.2021]


*Judgment by: Justice Ajay Rastogi

Appearances in the matter by

For petitioners: Senior Advocate Shyam Divan,  

For Respondents: Additional Solicitor General S.V.   Raju and advocate Naresh Kaushik

For intervenors: Senior Advocates P.V. Narasimha and Pallav Shishodia

https://www.scconline.com/blog/post/2021/02/24/covid-19-a-lame-excuse-to-take-extra-attempt-to-clear-civil-service-examination-heres-why-sc-refused-to-allow-extra-attempt-for-upse-cse-to-last-attemptees/

Case BriefsSupreme Court

Supreme Court: In the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ has refused the plea and has held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during COVID-19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.”

The Court, however, left it to the Government to exercise its discretion in meeting out the nature of difficulties, if come across in future in dealing with the situation, if required.

What was being claimed?

The petitioners were unable to qualify in their last attempt in the Civil Services (Preliminary) Examination, 2020, held on 4th October 2020 and approached the Court seeking mandamus to the Government to extend one additional attempt to them as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020.

It was argued before the Court that,

“the sudden and strict lockdown due to unprecedented pandemic in March, 2020 had made a  large disruption in the life of the common man and the measures adopted led to difficulties and impediments in the preparation of the Examination 2020 for many aspirants and the Government failed to take any policy decision for the last attemptees before   holding Examination 2020 to enable them to take an appropriate/suitable decision and noticing precedence from the earlier policy of 1st respondent to grant an extra attempt to last attemptees in the event causing widespread hardships left with no choice except to appear in the examination even though they did not have an adequate opportunity and infrastructure and they were left out blinded with uncertainty.”

Why the Court refused the plea of the petitioners?

The Court noticed that what was being prayed “in the first blush appears to be attractive but it lacks legal strength and foundation for various reasons.”

Adequate opportunity

The scheme of Rules 2020 clearly stipulate that the entry age to participate in this competition is 21 years and the exit age for general candidates is 32 years and at least each candidate gets minimum 11 years to participate in the competitive examination, i.e., CSE, in the instant case. For those who claim reservation vertical/ horizontal, they have numerous/unlimited chances and are also entitled for age relaxations.

No discretion with authority to grant relaxations

It may further be noticed that under Rule 6 of Rules 2020, there is a clear mandate that age limit prescribed in no case can be relaxed subject to the relaxations which have been enumerated for various categories. So far as the candidates who appear in the general category and have crossed the age of 32 years, no discretion is left with the authority to grant any relaxation in upper age limit prescribed for the candidates appeared in the instant Examination 2020.

No change in syllabus and additional time to prepare

The syllabus of the preliminary examination has not changed since 2015 and after the Rules 2020 were notified, the notice for the Examination 2020 was published on 12th February 2020 and the scheduled date of the examination was fixed on 31st May, 2020 but because of the unprecedented situation of Covid¬19 pandemic, the Commission took a policy decision to defer the examination and in the changed situation, after there was a relaxation in the lockdown, ultimately on 5th June, 2020 took a decision to hold the examination on 4th October 2020 and, therefore, instead of three   months, the candidates got additional five months (i.e. eight months) to which one ordinarily can  prepare for appearing in  the examination  in terms of the scheme of Rules 2020.

Already a “second chance” given to candidates

Under the scheme of Rules 2020, mere filling up of the form is not sufficient to avail an attempt.  If someone appeared in either of the paper of the preliminary examination, that was considered to be an attempt availed by the candidate and, in the given situation, after the application form was filled, the candidates who wanted to withdraw their application form at the later stage because of the Covid-19 pandemic, the commission took a policy decision to open the window for the second time, which in the ordinary course is not available under the scheme of rules, for the candidates who intended to withdraw their application from 1st August, 2020 to 8th August, 2020.

“Since the   examination was scheduled for 4th October, 2020 only those candidates were left who were mentally prepared to appear and willing to avail an opportunity of appearing in the Examination 2020 and after appearing in the examination, when they could not qualify, it has given a way to the present litigation on the specious ground of Covid-19 pandemic that they were unable to effectively participate in the process of selection which has been initiated by the Commission in holding preliminary examination on 4th October, 2020.”

No special case of petitioners than those who have appeared in various examinations in the year 2020

A  large number of candidates appeared in the various examinations in the year 2020 during COVID-19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other,

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

Can the Court issue mandamus to frame policy?

It was argued before the Court that there is always a change in the upper age limit and number of attempts in different spell and that in the year 2015, the Union of India allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011.

However, as pointed out by the Union of India, there was a substantial change in the pattern of   Civil Service (Preliminary) Examination 2011, in the given circumstances, it was considered appropriate to grant one more attempt in Civil Service Examination, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts.

The Court, however, noticed that the said instance cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Article 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance.

“Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.”

It is within the realm of the executive to take a policy decision based on the   prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.  The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

“Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for  the reason that there was  a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.”

[Rachna v. Union of India, 2021 SCC OnLine SC 140, decided on 24.02.2021]


*Judgment by: Justice Ajay Rastogi

Appearances in the matter by

For petitioners: Senior Advocate Shyam Divan,  

For Respondents: Additional Solicitor General S.V.   Raju and advocate Naresh Kaushik

For intervenors: Senior Advocates P.V. Narasimha and Pallav Shishodia

Hot Off The PressNews

Bar Council of India has notified that AIBE XVI onwards — No books, notes or study material will be allowed in the examination hall. Candidates can only carry Bare Acts without notes.

The said notification can be accessed on the following website: https://allindiabarexamination.com

 

———————————————————————————————————–

IMPORTANT DATES FOR AIBE-XVI

-26th Dec 2020 – Online Registrations Begins.

-21st Feb, 2021 – Last date for Online Registrations

-06th March, 2021* – Release of Admit Card Online.

-21st March,2021* – All India Bar Examination-XVI in various cities across India.


All India Bar Examination

Patna High Court
Case BriefsHigh Courts

Patna High Court: The question before Prabhat Kumar Singh J., for contemplation, was “Whether the candidate has violated the instructions in the OMR sheet and whether his result was right annulled by the Controller of Examination ?”

Petitioner sought quashing of the decision delivered by Controller of Examination declaring the result invalid for Physical Education and Health Instructor Ability Test, 2019, due to alleged usage of eraser and whitener in the OMR sheet.

Ritika Rani, counsel for the petitioner, challenged the said decision on the basis that it was arbitrary and irrational. It was vehemently argued that it was a mere mistake committed by the petitioner and the punishment was inadequate considering the nature of the mistake. It was further argued that the Board has not expressly informed about the said instructions.

On the contrary the counsel for respondents, Girijinsh Kumar and Pramod Kumar Singh, categorically stated the issue was already settled by a Coordinate Bench in Brajesh Kumar v. State of Bihar, CWJC No. 16359 of 2017, where the Court has dismissed the petition and held that “since the use of whitener, etc. was specifically prohibited under the instructions, no direction can be issued for publishing the result of those candidates.” It was further submitted that clear instruction was given to all the candidates including writ petitioner, not to use pen, eraser, or whitener on the OMR Sheets while attempting questions, otherwise the result will be declared invalid.

The court on perusal of records was of the opinion that petitioners violated the instructions given by the Board while answering the questions in OMR Sheets. It was held that “Such infringement of instruction during examination amounts to misconduct, hence such candidates are liable not to be selected.” Petition was dismissed as there was no irregularity in the order of the Controller.[Om Prakash Paswan v. State of Bihar, 2021 SCC OnLine Pat 73, decided on 13-01-2021]


Aastha Sharma, Editorial Assistant has put this story together

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Shivaji Pandey and Partha Sarthy, JJ., addressed the demand of Bihar Public Service Commission to quash impugned order of the Single Judge directing the Commission to constitute an expert committee for re-evaluation of questions.

Background

 On 15-07-2018, an examination was conducted by the Commission for the post of Assistant Engineers (Civil). After completion of examination, Key Answers of the concerned subjects was published. Later, on receiving objections pertaining to framing of wrong questions, wrong answers in the model answer-sheet or having more than one answers of a question, an expert committee was set up by the Commission to examine the said objections. Altogether, answers of 15 questions were found to be wrong but the questions claimed to be wrong by the respondents were not within those 15 answers. Hence, a petition was filed before the Single Judge against the findings of the Committee, whereby it was held that the committee had made an error and the Commission was directed to re-evaluate the questions.

The Commission submitted that, question setters were experts in their respective fields and objections were referred to another committee of experts, who were also experts in their respective fields. The said committee, after examining the objections submitted its report that answers of 15 questions were wrong leaving the four questions raised by the respondents, so the petitioners could not raise the same claim twice. It was also contended that books relied by the respondents to prove errors were not standard books and that the Single Judge had no power under judicial review to scrutinize which answer of the expert was correct or which answer was incorrect.

Whereas, the respondents claimed that Doctrine of prejudice would apply in the present case as there were are justifiable doubts with regard to opinion of the committee. Hence, it will be appropriate for the Court, under the power of judicial review, to give direction to revisit the answers.

Observations

 The Court, while citing Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 27, stated that, the Court cannot enter into the domain of academician and act as an appellate body over the opinion of the experts. The Court has little expertise to embark upon and to assess correctness of the view of experts unless on the face of it, it appears to be absurd or wrong. The members of expert committee were from reputed institutions,they had knowledge of their respective subjects to verify the objections and give report. The Court could not say that they do not have knowledge to examine the correctness of the objections filed by the respondents. The Court stated, “The academic matter should be left to the domain of the academician.”

The Court relied on Kanpur University v. Samit Gupta, (1983) 4 SCC 309, wherein it was held by the Supreme Court that, the key answer should be assumed to be correct unless it is proved to be wrong and the onus is on the candidate to not only demonstrate that the key answer is incorrect but also that it is a glaring mistake which is totally apparent and no inferential process or reasoning is required to show that the key answer is wrong….The Constitutional Courts must exercise great restraint in such matters and should be reluctant to entertain a plea challenging the correctness of the key answers. The Court refused to interfere with the model answer key while citing the decision of Ran Vijay Singh and Ors. v. State of Uttar Pradesh, (2018) 2 SCC 357, where the Supreme Court had held that, “sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. When there is no provision for re-evaluation, the candidate will not have right to get the answer-sheet re-evaluated but, when such provision is there in the statute and the error is so apparent without application of inferential process of reasoning and thought, then the Court may direct for re-evaluation of the answer-sheet.” But in the present case, the Court observed, the Commission had conducted the examination following the transparent process, had constituted a committee of experts on receipt of objections and the objections were examined and answers were re-evaluated by the said committee, so now there could not be further evaluation.

Decision

Noticing that, if this Court directs for revisit of answer sheets of impugned questions then, it might lead to a never-ending chain of litigation; the Court said,  the candidates and the examining body had invested their time and put their tremendous effort in the examination, that should not go waste and unless there exist blatant error in the key answers as well as in the opinion of the expert, it would be unjustified to interfere with the view of experts, otherwise it would be nothing but sitting over the opinion of the expert as an appellate authority, which would be outside the scope of the judicial review.

In view of the above, the Court held that interference by the Single in the report of the committee and giving direction for constitution of fresh expert committee to revisit the answer sheet was outside the realm of judicial review. Consequently, the impugned order was set aside with directions to the Commission to proceed further and declare the result of the mains examination. [Bihar Public Service Commission v. Ashish Kumar Pathak, 2021 SCC OnLine Pat 24, decided on 05-01-2021]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ravi Malimath and R.C. Khulbe, JJ., allowed a writ petition filed by the petitioner aggrieved by the order of the Commission rejecting his caste certificate because of which he was unable to avail reservation and appear for the interview.

The respondent had issued a notification for the post of Uttarakhand Judicial Services Civil Judge (Junior Division) Examination-2019, for selection of 15 posts by way of direct recruitment. By a corrigendum, the number of vacancies were increased from 15 to 28. Out of these vacancies, the reservations were demarcated. The petitioner had applied as a candidate belonging to the un-reserved category. It was indicated that the cut-off marks for the unreserved category was 145.75 marks, whereas the petitioner had secured 141.75 marks. The petitioner, being convinced that he had received less marks filed the instant writ petition seeking for a writ, to direct the respondents to examine the veracity of the answers. Errors were noticed in the marks awarded. On considering the same, the Court was of the view that the petitioner would be entitled to 5 more marks making him eligible to write the main examination and consequently he wrote the main exam. In the interregnum, petitioner had filed an application before respondent 1 to consider him as a candidate belonging to the OBC category which was denied by the respondent. Thereafter, an application was filed seeking for additional prayers to quash the impugned order rejecting the plea of the petitioner to declare that he is entitled to be considered under the OBC category; and to direct the respondent-Commission to revise the result of the examination, and consequential reliefs.

The counsel for the respondent, B.D. Kandpal contended that petitioner was not a domicile of the State of Uttarakhand, and therefore, was disqualified from writing the exam and that the petitioner had applied under the unreserved category while filling up the form for the preliminary exam because of which he cannot be allowed to change the category to OBC.

The cut off for the general merit category is 50%, namely, 425 marks, and for the OBC category, it is 40%, namely 340 marks. He secured 388 marks out of 850 marks which make the petitioner ineligible to appear for the interview while in the un-reserved category. However, what is relevant herein is that the caste certificate was produced by the petitioner before the respondent-Commission which was rejected by them.

The Court while allowing the petition explained that the certificate entitling the petitioner, as belonging to the OBC category, was issued to him before the last date of filing the documents, therefore, respondent should have rightly considered the petitioner as belonging to the OBC category. The Court relying on a Supreme Court judgment stated “There is a difference between ‘fact’ and ‘proof’. There can be no relaxation so far as facts are concerned. The fact is that the candidate must belong to a category which he claims. The proof is a submission of material in proof of such a claim. Therefore, even if there is a delay in submitting the proof of the claim, the same can be condoned.”

The order of rejection passed by the respondent was quashed and it was directed to consider the writ petitioner as a candidate belonging to the OBC category for the purposes of the main examination along with making sure that petitioner participates in the interview to be held by the Commission during 17th to 19th September, 2020 as an OBC candidate.[Ishank v. Uttarakhand Public Service Commission, 2020 SCC OnLine Utt 549, decided on 15-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

NLSIU
Law School NewsOthers

NLSIU has released a notification stating that there have been unfounded allegations with respect to the NLAT paper leak. As per the official release, students who faced technical difficulties were given an additional slot on monday. A legal news website claimed that they got their hands on the copy of the exam questions while the exam was still going on.

NLSIU has replied that it does appear that some questions were copied and circulated on emails and messaging apps after logging in. Although this is a malpractice under proctoring rules but this does not affect the integrity of the exam as all questions were available to candidates after login. As the technology platform tracks and compares every student’s answer behaviour patterns therefore any unusual behaviour will result in identification and disqualification. NLSIU has reassured candidates and their parents that they will be transparent and ensure exam integrity at all times.

The circular can be read here.[1]


[1] https://www.nls.ac.in/wp-content/uploads/2020/09/PRESS-RELEASE-3.pdf


*Nilufer Bhateja, Editorial Assistant has put this story together