Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Surya Kant, JJ has directed the State of Madhya Pradesh to allot a post graduate seat in Obstetrics and Gynecology at GMC, Bhopal to a lady doctor after noticing that she was entitled to incentive marks as per a State policy.

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

It is important to note that the State of Madhya Pradesh has a policy of 30% reservation for In-Service doctors, employed with the State as also granting them the incentive marks at the rate of 10 % marks per year upto a maximum of 30% marks. However, for getting the same, as per the applicable procedure the Chief Medical Health Officer (CMHO) of the concerned District has to forward a No Objection Certificate (NOC) in the requisite format to the Directorate of Health Services of Madhya Pradesh (DHS) which in turn forwards it to the Department of Medical Education, Madhya Pradesh (DME). After the receipt of NOC by the DME, any Medical Officer employed with the State is categorised as an ‘In-Service Doctor’ and made eligible for the benefit of 30% reservation as also the 30% incentive marks.

The Madhya Pradesh High Court had dismissed the Writ Petition of the Petitioner on the ground that the clock cannot be set back as allotment for 2nd Round of counselling were over and the Petitioner could not procure and produce the NOC in time for suiting her eligibility and entitlement as an In-Service candidate, which disentitled her from any benefits. It was, however, argued before the Supreme Court that the High Court proceeded on a grossly and factually erroneous ground that the Petitioner never registered for the Counselling, when the said fact was never disputed by the State and the Petitioner herself had filed the document proving her online Registration with the State as per the prescribed procedure available on the official portal of the DME, MP.

The Supreme Court held that as an in-service candidate, the appellant was entitled to the award of incentive marks in accordance with the applicable rules and would, hence, be also entitled to the allotment of the vacant seat which was set apart in the interim order dated 11.04.2022, wherein one seat was directed to be kept vacant in the MS Obstetrics and Gynecology in GMC, Bhopal.

The said observation came after noticing that the issue at hand only pertained to whether there was compliance with procedural requirements. The appellant secured 317 marks in the NEET–PG entrance examination and considering that in-service candidates are entitled to the allocation of certain preference marks, the eligibility of the appellant as an in-service candidate was not disputed.

The Court, hence, directed the State of Madhya Pradesh to process the application of the appellant as an in-service candidate and award her incentive marks in accordance with law. On that basis, the appellant be allotted the seat kept vacant for her.

[Rajni Shende v. State of Madhya Pradesh, 2022 SCC OnLine SC 504, decided on 18.04.2022]


For Petitioner(s): Siddharth R Gupta, Adv, Abhikalp Pratap Singh, AOR, Shivam Baghel, Adv., Sunita Gupta, Adv., Pranjal Agarwal, Adv.

For Respondent(s): Saurabh Mishra, AAG and Mrinal Elker Mazumdar, Adv.

Legislation UpdatesNotifications

The Government of Madhya Pradesh has revised the minimum rate of wages with effect from 1st October, 2021 vide notification dated October 01, 2021 as under:

Class of Employment Basic Per Day Basic Per Month
Unskilled 250.00 6500.00
Semi-skilled 271.42 7057.00
Skilled 324.42 8435.00
Highly Skilled 374.42 9735.00

 



Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesStatutes/Bills/Ordinances

The Government of Madhya Pradesh has amended the Madhya Pradesh Stamp Rules, 1942 vide circular dated August 13, 2021.

The Rules provides the entities that shall act as Ex-officio vendors in the state. The amendment provides that Ex-officio vendors under the Rules will include Banks, Financial Institutions, Post offices or such bodies where 51% shares are held by the Central Government or the State Government.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The bench of Mohammad Rafiq, CJ and Atul Sreedharan, J has issued notice to the Madhya Pradesh Government after a PIL was filed before the High Court seeking direction to the Madhya Pradesh Government to initiate the exercise of inviting global tender for the procurement of fixed lot of vaccines for immunizing the entire lot of its residents through a State-level immunization programme.

While it was submitted before the Court that the that the Central Government has adopted a policy according to which it can issue licence in favour of local manufacturers within the State of Madhya Pradesh for manufacturing the vaccine namely Covaxin, the Court listed the matter for further hearing on May 24, 2021.

The petition filed by Sunil Gupta, an elected Member of the State Bar Council, Madhya Pradesh, highlighted that already, a number of States have initiated steps in this regard and have either already floated global tender for the said process or are in the process of issuing one.

It further submits that if the State takes over the responsibility of inviting a global tender and undertakes to procure the entire lot for its unvaccinated (around 85%) population, then the said exercise would be completed within a period of 3-4 months conveniently without much of involvement of the private sector, eliminating the possibilities of the poor or the have-not section of the society been deprived of timely vaccination owing to lack of financial resources with him.

Read all about the petition here: 

‘Step into the shoes of a parent for your citizens and invite global tender for procurement of COVID-19 vaccines’. Read what the PIL in Madhya Pradesh High Court states

[SUNIL GUPTA v. THE STATE OF MADHYA PRADESH, WP-9487-2021, order dated 19.05.2021]


Appearances before the Court by:

For Petitioner: Advocate Siddharth Gupta

For Respondents: Advocate General Purushaindra Kaurav, Assistant Solicitor General J. K. Jain and Advocate Vikram Singh

Hot Off The PressNews

Madhya Pradesh High Court: As the nation is crippled with rising COVID-19 cases and shortage of vaccines, an important PIL has been filed before the High Court seeking direction to the Madhya Pradesh Government to initiate the exercise of inviting global tender for the procurement of fixed lot of vaccines for immunizing the entire lot of its residents through a State-level immunization programme.

The petition filed by Sunil Gupta, an elected Member of the State Bar Council, Madhya Pradesh, highlighted that already, a number of States have initiated steps in this regard and have either already floated global tender for the said process or are in the process of issuing one.

In the State of Madhya Pradesh, the population which is required to be vaccinated of the 18+ category is roughly about 5.49 crores.

Here’s the breakdown the statistics:

Total population in Madhya Pradesh 8,40,40,000

 

Total vaccinated population

(as on 13th May, 2021)

90,33,231
Total people vaccinated in the 18-45 age group

(as on 13th May, 2021)

8,08,762
Percentage of population vaccinated in M.P

(as on 13th May, 2021)

10.74%

Apart from various problems that are arising to ensure vaccination, the petition also highlights the issue of profiteering by the private hospitals and

medical practitioners, with private hospitals charging Rs. 1500 to Rs. 2000 per dose per person.The bigger the brand, the higher the rate of the very same dose of vaccine inoculated to the same category of patient by the private service providers.

“Where on one hand, the State Government is not able to ensure speedier and widespread vaccination due to availability of doses, on the other hand, private entities across the country are able to squeeze a lion’s share in the pie by getting the doses and vaccinating the people at much higher rates than that on which the Central Government is procuring, i.e., at the rate of Rs. 150 per dose per person.”

The petition argues that if the State purchases a bulk lot of vaccines by placing a direct purchase order without any interference by the Central Government through a direct tender process, as has been done with many other categories of drugs in normal course, then the problem shall be resolved.

The Global Tender floated by the Uttar Pradesh Medical Supplies Corporation limited for procurement of vaccines for Covid-19 also finds mention in the petition and is termed as “a role model in itself to be emulated and adopted by all the States of the country.”

Under the Uttar Pradesh’s Global Tender, the time period within which the entire contracted dose of vaccine is to be supplied by the concerned successful bidder to the State (which is two to three months period). Thereafter the entire lot of vaccine is in control and ownership of the State Government, which thereafter fixes the cap at which the concerned vaccination dose is to be sold on the field by the concerned authorized sellers. Thus, the State essentially becomes the “umbrella authority” in control and regulation of the entire lot of vaccines deciding how to get the citizens inoculated timely and without administrative delay and day to day bottlenecks.

States of Odisha, Karnataka, Maharashtra, Andhra Pradesh, Telangana, Delhi have taken the in-principle decision of floating Global e-tenders for purchase of vaccines towards ramping up the process of immunization drive at the State level.

Therefore, to ensure availability of a fixed confirmed cartel of vaccine with the State government for implementing a time bound immunization program in the State, it is necessary that some concrete steps must be taken.

The petitioner submits that inviting vaccines at a global level from international players will also evoke interest by the international companies for orienting their resources towards supplying their developed drugs in India (after statutory approvals) and also meet the acute shortage and availability issues of the vaccines being faced by various States including the State of Madhya Pradesh.

It is further submitted that involving multiple players in the field will also enable the State Governments to go for the best choice as also negotiate and develop bargaining power with the international players as also domestic companies for the supply of vaccines for immunizing its residents.

On the issue of price fixation, the petition states that the State must not only float the tender and call for the vaccine, but must also ensure that the vaccines are administered to each and every citizen at the fixed capped price both by the private as well as government players on which the State is undertaking procurement. This will eliminate any prospects of profiteering, hoarding and black marketing of the vaccine, procured through the Global e-tender by the State government.

If the State takes over the responsibility of inviting a global tender and undertakes to procure the entire lot for its unvaccinated (around 85%) population, then the said exercise would be completed within a period of 3-4 months conveniently without much of involvement of the private sector, eliminating the possibilities of the poor or the have-not section of the society been deprived of timely vaccination owing to lack of financial resources with him.

“Immunization at the State level is a concept which is not new and is being undertaken with respect to multiple other ailments like tuberculosis, polio, measles, etc diseases which have been a cause of pandemic in the past. Therefore, the State can very well step into the shoes of a parent for its citizens and undertake the said exercise of undertaking global tender for the procurement of vaccines in one go.”


Petitioner’s counsel: Advocate Siddharth R. Gupta 

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Prakash Shrivastava and Vandana Kasrekar, JJ., dismissed a petition which was filed challenging a notice whereby the premises of the petitioner had been sealed under the provisions of The Central Goods and Services Tax Act, 2017 (for short “GST Act”).

The petitioner was the manufacturer of sweet betel nut and which has all the necessary licenses and permissions for this purpose and is regularly paying the GST case of the petitioner is that the Plot No.15-A/B-1, Sector-B, Industrial Area, Sanwer

Road, Indore belonged to Shri Kishore Wadhwani and he had taken this plot on lease from Shri Kishore Wadhwani and was running the manufacturing unit on this plot. The further case of the petitioner was that apart from the above, it had no connection with Shri Kishore Wadhwani. Earlier in the year 2011 Excise Department had taken certain action against the petitioner but nothing incriminating was found. On 20-06-2020, by the impugned notice the factory premises of the petitioner had been sealed. Counsel for the petitioner, Mr Sunil Jain and Mr Kushagra Jain submitted that though the action relating to search and seizure u/S.67 of the GST Act has been taken, but the requisite procedure had not been followed. They further submitted that the petitioner apprehended that the search and seizure may not be carried out in a fair manner and the confession of the petitioner may be recorded under pressure, therefore, a direction be issued for carrying out the search in the present of an Advocate. Counsel for the respondent, Mr Prasanna Prasad submitted that the officials of the respondents had approached the factory premises of the petitioner on 20-06-2020 for the purpose of search and seizure by following the due procedure in accordance with Sec.67 of the Act, but since the premises was found locked, therefore, the option was either to break open the lock and carry out the search or to seal the premises and thereafter carry out the search of the premises in the presence of the petitioner. He also submitted that the two independent witnesses will be kept as required by law and procedure prescribed in law will be duly followed in true letter and spirit.

The Court perused the Section 67 of GST Act and held that the search is yet to take place in the present case and the counsel for respondents had duly assured this court that the aforesaid provision will be complied with therefore no direction in this regard at this stage is required. The Court relied on the judgment of Poolpandi v. Superintendent, Central Excise, (1992) 3 SCC 259 wherein during the investigation and interrogation under the provisions of Foreign Exchange Regulations Act 1973 and Customs Act, a prayer was made for assistance of the lawyer and the Supreme Court had held that,

            “11- We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus: if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and

duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be “expanded” to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the ‘just, fair and reasonable test’ we hold that there is no merit in the stand of appellant before us.”

The Court dismissed the petition holding that there was no need for interference.[Subhash Joshi v. Director General of GST Intelligence, WP No.9184 of 2020, decided on 03-07-2020]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ has held that the Madhya Pradesh Governor was right in ordering floor test after the State Government lost majority. The bench said,

“in a situation where the Governor has reasons to believe that the Council of Ministers headed by the Chief Minister has lost the confidence of the House, constitutional propriety requires that the issue be resolved by calling for a floor test. The Governor in calling for a floor test cannot be construed to have acted beyond the bounds of constitutional authority.”

In a detailed judgment, the Court also explained the scope of the power of the Governor and the law revolving around floor tests.

On the timing of directing a trust vote

The Court explained that in directing a trust vote, the Governor does not favour a particular political party and that it is inevitable that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. The Court, however, added,

“where the evidence indicates that circumstances of violence and coercion exist that would undermine a free and fair vote in the assembly, the Governor and the court must take measures to ensure that the sanctity of the trust vote is maintained.”

It, hence, held that in the present case there existed no extraordinary circumstances for the Governor to determine that a trust vote was not the appropriate course of action on 16 March 2020.

On short-circuiting the Speaker’s discretion

The Court noticed that neither the Governor, nor for that matter this Court, has the power to impinge upon the authority of the Speaker to take a decision on the said issue, however, it refused to accept the submission that holding of a trust vote would short-circuit the jurisdiction of the Speaker on a matter of resignation and disqualification. It explained that holding of trust vote is a matter which can brook no delay since the authority of the government presided over by the Chief Minister depends on the Council of Ministers continuing to have the faith of the legislative body as a collective entity. Particularly where the Members resigned in an expression of a lack of faith in the existing government, the convening of a floor test is the surest method of assessing the impact of the resignations on the collective will of the house. It concluded by holding that,

“nothing prevents the Speaker from taking a decision either on matters of resignation or disqualification despite convening of a trust vote.”

On seeking Access to the ‘Captive’ Members

On the plea that access be made to the twenty-two Members who have been elected on the ticket of the INC were “spirited away” to Bengaluru, the Court held that in order to facilitate a trust vote for which the twenty-two Members should be free to participate in the house should they opt to do so, directions in that regard should be issued both to the Director General of Police of Karnataka as well as to the Director General of Police of Madhya Pradesh.

The Court, however, said that it cannot issue a direction mandating that a trust vote cannot be convened if any one or more Members do not remain present in the House.

“Whether or not to remain present is for the individual Members to decide and they would, necessarily be accountable for the decisions which they take, both to their political party and to their constituents.”

Factual Timeline

  • On 28 November 2019, elections for the fifteenth Legislative Assembly of the State of Madhya Pradesh were held.
  • On 11 December 2018, results were declared and INC staked the claim to form the government together with the support of four independents Members, two Members of the Bahujan Samaj Party and one Member belonging to the Samajwadi Party.
  • On 10 March 2020, leaders of the BJP met the Speaker of the Madhya Pradesh Legislative Assembly and handed over what purported to be the resignation letters of twenty-two Members belonging to the INC.
  • On 13 March 2020, the Chief Minister addressed a communication to the Governor alleging that following a foiled attempt on 3/4 March 2020 to allure Members owing allegiance to the INC, the BJP had on 8 March 2020 arranged three chartered aircraft “to whisk away” nineteen Members to Bengaluru.
  • On 14 March 2020, the INC issued a three-line whip to ensure the presence of all its Members in the forthcoming Budget Session and to vote for and support the government.
  • On 15 March 2020, the Governor addressed a further communication to the Chief Minister that since the facility for mechanically recording votes (through the “press of a button”) was not available, the trust vote should be taken by the raising of hands.
  • On 16 March 2020, the Governor recorded that despite his earlier letter dated 14 March 2020, the Chief Minister did not initiate the process of proving his majority on the house floor and the proceedings of the Legislative Assembly were adjourned to 26 March 2020. He asked the Chief Minister to have the floor test carried out on 17 March 2020 and to establish his majority.
  • On 19 March 2020, the Supreme Court had ordered a floor test in the Madhya Pradesh Assembly to be held on March 20, following which Chief Minister Kamal Nath tendered his resignation. Bharatiya Janata Party leader Shivraj Singh Chouhan had later taken oath as the new state Chief Minister.

[Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly,  2020 SCC OnLine SC 363, decided on 13.04.2020]