Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., dismissed an appeal challenging the decision of State of Rajasthan to place persons having experience in Rajasthan and those having experience in other States on different footings for extending benefits of State notification proving bonus marks. Approving the findings of Rajasthan High Court, the Bench held,

“…the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.”

Factual Backdrop

The State of Rajasthan had framed rules known as Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Services (Amendment) Rules, 2013. Subsequently, the a State notification was issued on 30-05-2018 providing that the candidate who had worked under the Government, Chief Minister BPL Life Saving Fund, NRHM Medicare Relief Society, AIDS Control Society, National TB Control Program, Jhalawar Hospital and Medical College Society, Samekit Rog Nirgrani Pariyojna or State Institute of Health Family Welfare (SIHFW), would be entitled to bonus marks as per the experience attained. The notification provided,

“For 1 year of experience, the bonus marks will be 10, for 2 years of experience the bonus marks will be 20 and for 3 years of experience it will be 30. The advertisement also provided that only such of the candidates who were having experience certificate from the competent authority as mentioned in the said advertisement would be entitled to the bonus marks.”

On being aggrieved by the decision of the State to limit the benefit of the notification to those who had experience under NRHM in Rajasthan only and exclude those who had experience of working under the NRHM scheme on contract basis in different States, the appellants had approached the High Court vide various writ petitions seeking a direction to the State to accept the experience certificate of the petitioners which was issued by the NRHM authorities of different States, so as to qualify them for getting the bonus marks.

Findings of the High Court

The Single Judge of the High Court allowed the said writ petitions and directed the State of Rajasthan to grant bonus marks to the appellants. However, by the impugned judgment the Division Bench set aside the order of the Single Judge holding that the intention of the State of Rajasthan was to confine the benefit of award of bonus marks to those employed in the schemes within the State of Rajasthan and not in other States.

Was there any intelligible differentia?

Rule 19 of the Rules, 2013 provided that the Appointing Authority shall scrutinize the applications received by it and require as many candidates qualified for appointment under these rule as seem to it desirable for interview. The appellants argued that a plain reading of Rule 19 of the said Rules would clearly show that the experience of working anywhere in the country under the NHM/NRHM schemes would be sufficient to qualify a candidate to get bonus marks as both category of candidates either belonging to State of outside were doing same kind of work.

Therefore, the appellants alleged that to discriminate between employees working under the NHM/NRHM schemes in the State of Rajasthan as against those working outside the State of Rajasthan, was without intelligible differentia, not having the nexus with the object sought to be achieved and as such, was palpably arbitrary and violative of Article 14 of the Constitution.

Analysis and Observations

Noticing that the policy of the State of Rajasthan was that while selecting Nurse Compounder Junior Grade, the bonus marks were to be given to such employees who had done similar work under the State Government and under the various schemes, the Bench stated that when Rule 19 is read with sub clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear.

Sub clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list revealed that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. Hence, the Bench opined that reading ‘Project Director, NHM/AIDS’ to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. The Bench expressed,

“When sub clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term ‘Project Director, NHM’ will have to be construed as ‘Project Director, NHM’ within the State of Rajasthan.”

The Bench noted that in Jagdish Prasad v. State of Rajasthan, (D.B. Civil Writ Petition No. 12942/2015, dated 09-02-2016) the Division Bench of the Rajasthan High Court had held that the Government of Rajasthan had conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertained to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones and such a training is mandatory and non-joining of the same would result in non-renewal of service contracts. It had been held by the High Court that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State.

Approving the findings of the he Division Bench in the aforementioned case, the Bench stated that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.

Verdict

In the light of the above, the Bench concluded that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan could not be said to be arbitrary. The impugned order was upheld.

[Satya Dev Bhagaur v. State of Rajasthan, 2022 SCC OnLine SC 206, decided on 17-02-2022]


*Judgment by: Justice B.R. Gavai


Appearance by:

For the Appellants: Rishabh Sancheti, Himanshu Jain and Alpana Sharma, Advocates

For the State: Manish Singhvi, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., held that it is by virtue of the statute mandating reservation for disabled persons that persons with disability are treated as a homogenous class irrespective of social classification and such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15 to claim on same reservation for SC/ST candidates.

Factual Matrix

The petitioner, a participant of NEET Examination, 2021 belonged to Scheduled Caste community. The grievance of the petitioner was that as per the Prospectus and various Government Orders, 10% of the Government seats in Government Medical Colleges were reserved for SC/ST candidates; however, the reservation provided by the State was discriminatory in nature. The petitioner alleged that while providing reservation to persons with disabilities, the respondent adopted a criterion to reserve 5% of the seats available after leaving the seats set apart under Clauses 4.1.1 and 4.1.2. However, while granting reservation to Scheduled Castes and Scheduled Tribes, the respondent adopted a different criteria under Clause 4.1.5 by reserving seats leaving the seats set apart under Clauses 4.1.1, 4.1.2, 4.1.3 and 4.1.4 resulting in marginal reduction of number of seats reserved for Scheduled Castes and Scheduled Tribes.

Therefore, the petitioner challenged the Clause 4.1.5 of the Prospectus on the ground that the two classes entitled for reservation were discriminated among them and such adoption of criteria lead to the marginal decrease in the available seats for the SC/ST candidates. The petitioners argued that the condition prescribed in Clause 4.1.5 of was highly arbitrary, unreasonable and violative of the principle of equality enshrined in Article 14 of the Constitution and hence liable to be interdicted.

On the contrary, the State argued that it is for the State to decide as to how the principle of reservation is to be applied and the petitioners cannot maintain a prayer seeking a direction to adopt different criteria from that adopted by the State as the State has sufficient authority to decide how the principle of vertical reservation should be applied.

Analysis and Observations

Persons having disability form a homogenous class by themselves where disability is not on the basis of social backwardness but on the basis of physical disability. Noticing that the claim of the petitioners for reservation was traceable to Article 15 which is an enabling right, while the claim of the PWD persons traces to a statute promulgated for the purpose of implementation of a Constitutional mandate, the Bench held that such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15.

Therefore, the Bench concluded there was no violation of Article 14, as it postulates equal treatment for equally placed persons that is to say unequals can be treated unequally. The Bench observed,

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Further, the Bench emphasised that reservation itself is not a matter of right and the Constitutional provision is only enabling in nature. The State can provide for separate and exclusive channels of entry or sources of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations.

Accordingly, it was held that such two channels of entry or two sources of admission were valid provisions, when the classification was based on an intelligible differentia with a laudable object sought to be achieved. The petition was dismissed for being devoid of merit. [Sumith V Kumar v. State of Kerala, WP(C) No. 21885 of 2021, decided on 11-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: K.Siju, S.Abhilash and Anjana Kannath, Advocates

For the Respondents: P.G.Pramod, Government Pleader and Titus Mani for R7

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Nani Tagia, J., stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Covid-19 Vaccination:  Whether Mandatory or Voluntary?

The petitioner contended that as per the RTI Information furnished by the Ministry of Health & Family Welfare, which is available on the Ministry’s website, Covid-19 vaccination is not mandatory but voluntary. The petitioner also referred to an answer given on 19-03-2021 in the Lok Sabha to an Unstarred Question No. 3976 by the Minister of State in the Ministry of Health & Family Welfare stating that there is no provision of compensation for recipients of Covid-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation. The Covid-19 Vaccination is entirely voluntary for the beneficiaries. The petitioner contended that the impugned order had interfered with the fundamental rights granted under Article 19 (1) (d) of the Constitution.

Analysis by the Court

Vide Clause 11 of the Order dated 30-06-2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vaccinated and unvaccinated persons for Covid-19 virus had been classified into two groups for the purpose of issuing temporary permits for developmental works in both public and private sector. Clause 11 of the Order reads as under:

“11. Tourist ILPs shall remain suspended during the period of this order, however for developmental works in both public and private sector; temporary permits may be issued provided such persons are vaccinated for COVID 19.

While persons who were vaccinated for Covid-19 had been allowed to be issued with a permit to visit Arunachal Pradesh, persons who were not vaccinated with Covid-19 vaccine had not been allowed to be issued with a temporary permit to visit Arunachal Pradesh for developmental works in both public and private sector. The Bench stated that the right granted under Article 19 (1) (d) of the Constitution to move freely throughout the territory of India is not absolute and the State may impose reasonable restrictions either in the interest of the general public or for the protection of the interest of the Scheduled Tribe. However, such restrictions must be a reasonable one conforming to the requirement of Article 14 of the Constitution.

Whether Classification of Vaccinated and Non-vaccinated was based on intelligible differentia

Noticing that the classification sought to be made between the vaccinated and unvaccinated persons was to contain Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the Bench stated that, “there is no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus.”

The Bench said that in so far as the spread of Covid- 19 Virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. Both can equally be a potential spreader if they are infected with the Covid-19 Virus in them. Hence, the classification must always rest upon some real and substantial distinction bearing reasonable and just needs in respect of which it is made.

Hence, the Bench stated, if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.

Decision

Thus, the Bench held that the impugned notification violated Articles 14, 19 (1) (d) & 21 of the Constitution, in so far it made classification of vaccinated and non-vaccinated persons for the purpose of issuance of temporary permits for developmental works in the State of Arunachal Pradesh. Accordingly, Clause 11 of the impugned order was stayed to the extent it discriminated between Covid-19 vaccinated persons and Covid-19 unvaccinated persons.[Madan Mili v. Union of India, 2021 SCC OnLine Gau 1503, decided on 19-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Advocates for the Petitioner: Debasmita Ghosh, Ebo Mili, Chanya Bangsia and S. Dey

Advocates for the Respondent: Marto Kato, ASG, R. H. Nabam, Addl. Adv. General, A.P

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I. Chagla, JJ., quashed and set aside the unreasonable restriction placed by the State of Maharashtra on prohibiting the actors, crew members, etc. who are above the age of 65 years from being present at the site of the shooting of films/television series/Over The Top Media (OTT) in light of the same being discriminatory.

Petitioner is an actor by profession who had challenged the condition imposed by the Government of Maharashtra’s Resolution according to which persons above the age of 65 years are prohibited from remaining present at the site of the shooting of films/television series/Over The Top Media (OTT).

Discriminatory and Arbitrary

The government resolution is discriminatory, arbitrary and violative of Article 14 of the Constitution of India because at the time the same was issued, Central, as well as the Maharashtra Government, had relaxed the general prohibition on the movement of persons above the age of 65 years.

Right to Carry on Trade and Occupation

As against this, a prohibition on the movement of persons above the age of 65 years continued to operate in the film and television industry. It is also submitted that the impugned condition is an unreasonable restriction on the petitioners’ right to carry on their trade and occupation, as also the impugned condition deprives the petitioner of his right to earn a livelihood with dignity.

Government Pleader for the Respondent State, Purnima H. Kantharia submitted that the Government of Maharashtra’s Resolution is based on Centres’ order passed under the DM Act.

Further, he added that, the restrictions are in the interest of persons with low or weak immunity as the disease is easily communicable.

The restriction is not absolute. Persons above the age of 65 years may work from home, over video conferencing, email, video sharing etc.

Until the Central and State Governments relax the guidelines, the Respondent is bound to strictly implement the aforesaid Orders issued under the DM Act, as the MHA Orders specifically provide for strict enforcement of the Lockdown Orders by the respective State Governments.

“…though the Impugned Condition reads as a prohibition, no coercive action will be taken against anyone above the age of 65 years who chooses to remain present at the site of the shooting of films/television series / OTT. The prohibition is issued in the interest of the health and safety of persons who are above the age of 65 years and is to be read as such.”

Analysis and Decision

Bench while analysing the facts and circumstances of the case, started while stating that Sections 38 and 39 of the DM Act empower the State Government to take measures to deal with the disaster at hand, which in this case is the Covid-19 pandemic.

Keeping the above in mind and being fully conscious of the hardship and risks posed by the Covid-19 pandemic, Court first considered the challenge to the impugned condition under Article 14 of the Constitution of India.

Intelligible Differentia

In Court’s opinion, impugned condition was not based on any intelligible differentia.

Whilst there may be a nexus with the object sought to be achieved, i.e. to protect vulnerable people from the Covid-19 pandemic, there is no intelligible differentia between persons who are 65 years of age or above in the cast/crew of films and TV shootings on the one hand and persons who are 65 years of age or above in other sectors and services, permitted under prevailing lockdown orders.

Thus, there is discrimination in the disparate treatment of persons who are 65 years of age or above in the film or television industry and in the other permitted sectors and permitted activities and no explanation on the said aspect has been given by the State Government.

Hence, Impugned Condition, therefore, cannot be sustained in view of the well-settled principles enunciated under Article 14 of the Constitution of India.

Further, the said impugned condition also failed to take into consideration the relevant material, namely the relaxation contained in orders dated 30th May 2020 and 31st May 2020 issued by MHA and the Government of Maharashtra respectively, which reads as an advisory for persons above the age of 65 years.

Impugned Condition in light of Article 21 of the Constitution

Citing the decision of Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, it was stated that the Righto Earn a livelihood and the Right to Live with Dignity are well-established facets of the Right to Life guaranteed under Article 21 of the Constitution.

Court added that coming to the conclusion that the impugned condition cannot be sustained on account of it being discriminatory and arbitrary, stated 

“we are satisfied that the absolute prohibition as regards persons above the age of 65 years who earn their livelihood from the film industry (which is allowed to operate), is a measure that violates the Petitioner’s right to live with dignity under Article 21 of the Constitution and the restriction imposed by the Impugned Condition in relation to a specific sector or industry that is now allowed to operate, cannot constitute a valid procedure established by law.”

Hence, on perusal of the above observations, the Court held that if there are no general prohibitions on persons above the age of 65 years from working or practicing their trade in those sectors and businesses which are allowed to operate, an age-based prohibition in only one industry namely the film industry/television / OTT, without any material to support its differential classification, would constitute an unreasonable restriction.

The stated impugned condition was quashed and set aside in view of being an unreasonable restriction. [Pramod Pandey v. State of Maharashtra,  2020 SCC OnLine Bom 846, decided on 07-08-2020]


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