Case BriefsHigh Courts

Gujarat High Court: A.S. Supehia, J. allowed the writ petitions filed by D. Pharm students aggrieved by their non-registration as Pharmacist under the Pharmacy Act, 1948 (the Act) irrespective of their training.

The case of the petitioners was that the respondent-the Gujarat State Pharmacy Council was not registering them as Pharmacist under the Act despite having been undertaken the necessary training of 500 hours for three months from the respective medical stores. It is the case of the respondent authorities that the training from the medical stores, from which the petitioners have undertaken, are not approved and hence, the petitioners cannot be registered as Pharmacist.

The Court noted that the entire issue was with regard to their undertaking practical training from the medical stores, which were not approved and hence, they were not registered as Pharmacist.

The Court stated that respondent 2  in its affidavit-in-reply admitted the fact that the Pharmacy Council of India (PCI) no medical store under regulation 4.4 of the Pharmacy Practice Regulations, 2015 (the Regulation of 2015) for the purpose of imparting practical training to the students of Diploma in Pharmacy Course like the present petitioners has been approved. Thus, the Court was of the opinion that petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, the petitioner has no option to take their training from the respective medical stores.

The affidavit-in-reply also mentioned that the Council will be notifying the process of granting approval of Pharmacy/Chemist and Druggist through online mode and necessary technology support for the same is under development and validation.

Finally, in the affdiavit-in-reply, it was stated that in order to avoid hardship to the students, who have already undergone or undergoing the D.Pharm course, the practical training undertaken by a student from a Pharmacy, Chemist and Druggist licenced under the Drugs & Cosmetics Act, 1940 and rules made thereunder shall be considered as approved for registration of students by the State Pharmacy Councils as per the precedence, provided the student has undergone the D.Pharm course in an institution approved by the PCI under Section 12 of the Act.

The Court allowed the writ petitions in view of the affidavit filed by the PCI and the impugned order(s) challenging in the respective petitions denying such registration of the petitioners as Pharmacist by the respondent 3 were quashed and set aside. It was directed that the petitioners shall be registered as Pharmacist under the State Pharmacy Council.

[Oza Nikun Dashrathbhai v. State of Gujarat, R/Special Civil Application No. 19626 of 2018, decided on 03-08-2022]


for the Petitioner: Hardik D Muchhala

for respondent 1: Sahil Trivedi

for respondent 2:  Devang Vyas

for respondent 3: Rashesh H Parikh, Hemang H Parikh

for respondent 4: SAN Associates LLP


*Suchita Shukla, Editorial Assistant has reported this brief.

Supreme Court June 2022 Roundup
Legal RoundUpSupreme Court Roundups

Top Stories of the Month

Clean Chit to PM Modi in 2002 Gujarat riots case

“SIT Officials have come out with flying colours unscathed despite all odds”; SC upholds SIT’s clean chit to PM Modi in 2002 Gujarat riots

“The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State.”

Read more…

Maharashtra Political Crisis

Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM

No stay on floor test, disqualification proceedings to be kept in abeyance till July 11; Read SC’s directions on Eknath Shinde’s plea

Psychiatric & Psychological Evaluation of death row convicts

Supreme Court mandates call for mental health report before pronouncing death sentence

“Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the state and society’s failing, which is what entitles the accused to a chance of reformation.”

Read more…

Also Read: Supreme Court allows Project 39A of NLU Delhi to conduct psychological evaluation of a death row convict to bring out mitigating factors

Insolvency and Bankruptcy

Liability in respect of a claim arising out of a Recovery Certificate is a “financial debt” under Section 5(8) of the IBC

The words “means a debt along with interest, if any, which is disbursed against the consideration for the time value of money” are followed by the words “and includes”. By employing the words “and includes”, the Legislature has only given instances, which could be included in the term “financial debt”. However, the list is not exhaustive but inclusive.

Read more…

NEET-PG 2021

“Process of admission and that too in the medical education cannot be endless”; SC says no to Stray Round of counselling for unfilled NEET-PG 2021 seats

“There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.”

Read more…

Fact Check of this Supreme Court story from a Leading Newspaper

On June 14th 2022, a leading newspaper had published an article with the headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”. While on the face of it, it appeared to be a landmark judgement, on our correct analysis of the judgment, we found out that neither the couple was held to be cohabitating “without marriage” nor was the son considered to be “illegitimate”.

Read the Fact Check: We fact-check a leading newspaper’s misleading headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”

Read the accurate analysis by the SCC Online Blog: Long co-habiting couple’s child cannot be disentitled from family property in absence of proof against presumption of marriage

Read more…

Most Read Story of the Month

Beyond Reasonable Doubt versus Preponderance of Probabilities: Supreme Court explains why circumstances guide the Courts in deciding Right to Private Defence cases

“The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

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Dishonour of cheque| Partner cannot be held to be vicariously liable when partnership firm is not tried as primary offender

The Partnership Act, 1932 creates civil liability. Further, the guarantor’s liability under the Contract Act, 1872 is a civil liability. The Partner may have civil liability and may also be liable under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. However, vicarious liability in the criminal law in terms of Section 141 of the NI Act cannot be fastened because of the civil liability.

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No conviction based on ‘last seen together’ theory when possibility of suicidal death not ruled out; SC sets man free in a 28-year-old honour killing case

“The suspicion howsoever strong cannot take place of proof.”

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Old Age Home inmates can’t get away with causing disruption of peace of other inmates; Administration can ask them to vacate the room

“One can understand the mental trauma which the parents face in the evening of their life but the agony suffered by a parent cannot be a cause of disturbance to the other inmates or to the organizers who have resolved to take care and run the old age home.”

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Railway doubling project on Karnataka-Goa route antithesis to biodiversity and ecology; Supreme Court revokes approval for railway doubling in Western Ghats

“While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity topreserve ecology and environment should not hamper economic and other developments.”

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Income, age not enough to tilt the balance in favour of maternal aunt; Grandparents win custody battle of 5-year-old who lost parents to COVID-19

“One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson.”

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Date of dispatch/shipment: Is it when the loading commences or when the loading completes?

“The term ‘despatch’ contained in the policy implied ‘completion’ of handing over of possession of the goods to the first carrier (the ship), and not the date on which the loading ‘commenced’ such an interpretation would give rise to an absurdity.”

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Allahabad HC grants bail to a history sheeter only on the basis of parity; prompts SC to lay down illustrative circumstances for cancellation of bail

Holding that the Supreme Court has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances, the Court laid down the illustrative circumstances where the bail can be cancelled.

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More than one chargesheet is necessary for invoking provisions of Gujarat Control of Terrorism and Organised Crime Act, 2015

The Court enumerated the conditions will have to be fulfilled for invoking the provisions of the GCTOC Act.

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Pay on a par with last drawn pay on reemployment in Government Service? Not a matter of right, holds Supreme Court

In a case where the bench of MR Shah and BV Nagarathna, JJ was posed with the question as to whether on re­employment in the government service, an employee who was serving in the Indian Army/in the Armed Forces shall be entitled to his pay scales at par with his last drawn pay, it has been held that a claim for the last drawn pay in the armed forces is not a matter of right.

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Consider relocating and rehabilitating 268 Jhuggi Dwellers without insisting on Ration Card proofs; Supreme Court directs Delhi Government

By the impugned order, the Delhi High Court had held that since the original cut-off date was 31-12-1998, the jhuggi dwellers were not eligible for the rehabilitation scheme at that date as they did not have ration card on the relevant date.

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Madras High Court’s decision to keep enquiry report in a sealed cover in SP Velumani graft case doesn’t sit well with Supreme Court

When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover.

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Unless there’s a written instrument declaring land was voluntarily relinquished for no consideration, State cannot deny payment of compensation

Under the mandate of Article 300A, the State can only deprive a person of the right to property if it is for a public purpose and the right to compensation is fulfilled, thereby reiterating that the right to compensation is an inbuilt part of Article 300A.

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Can insurer rely on statutory interpretation of “acts of terrorism” to repudiate insurance claim where the policy itself defines the term?

The Court reversed National Consumer Disputes Redressal Commission’s (NCDRC) judgment by which it had held that the insurance company was justified in repudiating the claim.

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Can State deny benefits of New Pension Scheme citing delayed appointments when the delay was not attributable to employees?

In the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants.

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SC steps in after Orissa HC sits on a blind man’s bail plea in a Ponzi scheme case for 2 years after reserving order in 2020; Issues notice to CBI, ED

The petitioner, who suffers from a permanent disability of blindness by birth, has submitted before the Court that the prolonged detention is against the fundamental rights of the Petitioner under Article 21 of the Constitution of India.

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Supreme Court reinstates All India Chess Federation secretary Bharat Singh Chauhan till August 15 to ensure smooth holding of the prestigious Chess Olympiad-2022

The Court took the decision in the light of the fact that a prestigious Chess Olympiad is to be held in the country and the same should not be affected because of any structural anomaly in the National Sports Federation (NSF). 

Read more…

Cases Reported in SCC

2022 SCC Vol. 4 Part 2 : In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat(2022) 4 SCC 227]

Read more…

2022 SCC Volume 4 Part 3: This part consists a very pertinent decision of the Supreme Court wherein it was held that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

Read more…

2022 SCC Volume 4 Part 4: This part encapsulates, a very interesting decision, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Court expressed, “It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.” [Brijmani Devi v. Pappu Kumar(2022) 4 SCC 497]

2022 SCC Vol. 5 Part 1: This part encapsulates, a very interesting decision of the Supreme Court wherein the Court while dealing with Appointment of Vice-Chancellor, held, that it cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-à-vis the criteria prescribed in the applicable UGC Regulations. [Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179]

2022 SCC Vol. 5 Part 2: This part covers the decision wherein the scope of “deemed authorization” clause under S. 16 provisio of the Petroleum and Natural Gas Regulatory Board Act, 2006 has been dealt with. It has been held that if one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. [Adani Gas Ltd. v. Union of India(2022) 5 SCC 210]

2022 SCC Vol. 5 Part 3: This part consists of an important decision on the menace of “dowry”, wherein it has been held that “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. [State of M.P. v. Jogendra(2022) 5 SCC 401]

2022 SCC Vol. 5 Part 4: This part covers a pertinent decision on Section 29-A(h) of the Insolvency and Bankruptcy Code, 2016, wherein it has been held that existence of personal guarantee invoked by creditor is sufficient to render disqualification against the person executing guarantee, even when the application seeking initiation of insolvency resolution process is filed by some other creditor. [Bank of Baroda v. MBL Infrastructures Ltd.(2022) 5 SCC 661]

SCC Snippet

Why Reason is the Soul of Justice : The bench of GS Singhvi and AK Ganguly, JJ, in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, stressed upon the importance of reasoned judicial orders and elaborated on why “reason is the soul of justice.”

Case BriefsSupreme Court

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

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

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

The Supreme Court observed that,

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

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

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

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

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


*Judgment by: Justice MR Shah


Counsels

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

For UOI: ASG Balbir Singh,

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

Case BriefsSupreme Court

Supreme Court: In a relief to students seeking admission in AIIMS Institutes, the bench of L. Nageswara Rao and AS Bopanna, JJ has directed that a roster point-based reservation for preferential candidates as followed by Jawaharlal Institute of Postgraduate Medical Education and Research (JIPMER) shall be implemented in all the AIIMS institutes.

AIIMS, New Delhi, submitted before the Court that a roster point-based reservation can be followed for preferential candidates. However, the actual roster point for AIIMS would be different from that of JIPMER. The Court agreed to the submission and observed that the roster points need not be similar to that of JIPMER.

The directions came in the petition filed by a registered AIIMS, Bhopal and the candidates who have appeared for INI-CET examination seeking roster wise/discipline wise seat allocation for institutional preference candidates who seek admission via INI-CET examination. The petitioners had argued before the Court that they are losing out on their preferred discipline as no mechanism for allotment of seats for institutional preference is specified.

[STUDENTS ASSOCIATION AIIMS, BHOPAL v. AIIMS, 2022 SCC OnLine SC 681, order dated 13.05.2022]


For petitioners: Dr Charu Mathur, AOR

Tanvi, Adv

Sanjay Kumar Dubey, Adv

Arvind P. Datar, Sr. Adv.

Pranjal Kishore, Adv.

Rahul Unni Krishnan, Adv.

Paranjay Tripathi, Adv.

Aditya Jain-1, AOR

For Respondent(s): Dushyant Parashar, AOR

Manu Parashar, Adv.

Gaurav Sharma, AOR

Dhawal Mohan, Adv.

Prateek Bhatia, Adv.

S.K. Dubey, Sr. Adv.

K.V. Mohan, AOR

Rajmangal Kumar, Adv.

Rishabh Kr. Thakur, Adv.

Legal RoundUpSupreme Court Roundups


Most Read story of the Month


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

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

Read more…


Top Stories


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

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

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

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

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

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

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Supreme Court stays Delhi’s Jahangirpuri demolition drive

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

Read more…

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

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

Read more…

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


Explainers



More Stories


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

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

Red more…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more…


Cases Reported in SCC


2022 SCC Vol. 2 Part 4

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

2022 SCC Vol. 3 Part 1

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

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

2022 SCC Vol. 3 Part 2

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


 

Case BriefsSupreme Court

Supreme Court: 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 UpdatesStatutes/Bills/Ordinances

Institute of Teaching and Research in Ayurveda Bill, 2020 received Presidential Assent on 21-09-2020.

The Institute of Teaching and Research in Ayurveda Act, 2020

Key Features:

AYURVEDA INSTITUTES

It is proposed to conglomerate certain Ayurveda institutes in the campus of Gujarat Ayurved University at Jamnagar, namely,

(i) the Institute for Post Graduate Teaching and Research in Ayurveda;

(ii) Shree Gulabkunverba Ayurved Mahavidyalaya; and

(iii) the Indian Institute of Ayurvedic Pharmaceutical Sciences (including pharmacy Unit) by establishing them as one institution in the name of the Institute of Teaching and Research in Ayurveda, Jamnagar and to confer the status of Institution of National Importance on it.

It is also proposed to subsume the Maharshi Patanjali Institute for Yoga and Naturopathy Education and Research into the proposed Institute and establish it as a Department of Swasthvritta.

The Institute will be elevated to the status of Institution of National Importance which will provide autonomy to it to upgrade standards of Ayurveda education, to frame various courses in Ayurveda as per national and international demand and to adopt advanced evaluation methodology.

NATIONAL IMPORTANCE

Conferring the status of Institute of National Importance to the Institute of Teaching and Research in Ayurveda, Jamnagar will also facilitate :

(a) to develop patterns of teaching in undergraduate and postgraduate medical education in Ayurveda and Pharmacy so as to demonstrate a high standard of such medical education to all medical colleges and other allied institutions of Ayurveda in India;

(b) to bring together in one place educational facilities of the highest order for the training of personnel in all important branches of Ayurveda, including Pharmacy;

(c) to attain self-sufficiency in postgraduate education to meet the country’s needs for specialists and medical teachers in Ayurveda; and (d) to make an in-depth study and research in the field of Ayurveda

FUNCTIONS OF THE INSTITUTE

(a) provide for undergraduate and postgraduate teaching in Ayurveda, including Pharmacy;

(b) provide facilities for research in the various branches of Ayurveda including Pharmacy;

(c) prescribe courses and curricula for both undergraduate and postgraduate studies in Ayurveda including Pharmacy;

(d) notwithstanding anything contained in any other law for the time being in force, establish and maintain—

(i) one or more Ayurveda medical colleges with different Departments including Department of Swasthvritta and such other departments as may deemed to be necessary for scientific validation of Ayurveda, implementing Ayurveda principles and theories in public health and further expansion of Ashtanga Ayurveda with the help of modern scientific advances sufficiently staffed and equipped to undertake undergraduate and postgraduate Ayurveda education including Pharmacy;

(ii) one or more well-equipped hospitals;

(iii) colleges for Ayurveda supporting staffs such as nurses, Pharmacists, Panchakarma technicians or therapists and such other allied disciplines of Ayurveda sufficiently staffed and equipped for training such students;

(iv) rural and urban health organisations which will form centres for the field training in Ayurveda and for research into community health problems; and

(v) other institutions for the training of different types of health workers, such as physiotherapists, occupational therapists and Ayurvedic medical technicians of various kinds;

(e) train teachers for the different Ayurveda colleges in India;

(f) hold examinations (including for admissions) and grant degrees, diplomas and other academic distinctions and titles in undergraduate and postgraduate education in Ayurveda and Pharmacy as may be laid down in the regulations;

(g) institute, and appoint persons to professorships, readerships, lectureships and posts of any description in accordance with regulations;

(h) receive grants from the Government and gifts, donations, benefactions, bequests and transfers of properties, both movable and immovable, from donors, benefactors, testators or transferors, as the case may be;

(i) deal with any property belonging to, or vested in, the Institute in any manner which is considered necessary for promoting the objects specified in section 12;

(j) demand and receive such fees and other charges as may be specified by regulations;

(k) construct quarters for its staff and allot such quarters to the staff in accordance with such regulations as may be made in this behalf;

(l) establish, maintain and manage halls and hostels for the residence of students;

(m) supervise and control the residence and regulate the discipline of students of the Institute and to make arrangements for promoting their health, general welfare and cultural and corporate life;

(n) institute and award fellowships, scholarships, exhibitions, prizes and medals; (o) borrow money, with the prior approval of the Central Government, on the

security of the property of the Institute;

(p) to perform all such things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Institute.

Read the Act here: ACT


Ministry of Law and Justice

Legislation UpdatesStatutes/Bills/Ordinances

National Commission for Indian System of Medicine Bill, 2020 received Presidential Assent on 20-09-2020.

The National Commission for Indian System of Medicine Act, 2020.

Purpose of the Act:

Act to provide for a medical education system that improves access to quality and affordable medical education, ensures availability of adequate and high quality medical professionals of Indian System of Medicine in all parts of the country

Encourages such medical professionals to adopt latest medical research in their work and to contribute to research; that has an objective periodic and transparent assessment of medical institutions and facilitates maintenance of a medical register of Indian System of Medicine for India and enforces high ethical standards in all aspects of medical services; that is flexible to adapt to the changing needs and has an effective grievance redressal mechanism.

Key Highlights

Constitution of National Commission for Indian System of Medicine [SECTION 3] 

Central Government will constitute the National Commission for Indian System of Medicine. The said commisison shall be a Corporate Body with it’s head office at New Delhi.

Composition of Commission [SECTION 4]

Persons of the Commission will be as follows:

(a) Chairperson;

(b) fifteen ex officio Members; and

(c) twenty-three part-time Members.

The said Section also elaborates the qualification and experience required by the said Members and Chairperson.

Search Committee for appointment of Chairperson and Members [SECTION 5]

Central Government shall appoint the Chairperson, referred to in Section 4 and the President of the Autonomous Boards referred to in Section 20 on the recommendation of a Search Committee.

Term of office and conditions of service of Chairperson and Members [SECTION 6] 

Chairperson and Members (other than ex officio Members) and Members appointed under Secton 4 shall hold office for a term not exceeding 4 years and shall not be eligible for any extension or re-appointment.

Removal of Chairperson and Members of Commission [SECTION 7]

When can Central Government remove the Chirperson or any Member?

  • Adjudged as Insolvent
  • Convicted of an offence which involves moral turpitude
  • Physically or Mentally incapable of acting as the Chairperson or a Member
  • Unsound Mind
  • Has acquired such financial or other interest and is likely to affect prejudicially his function as a Member
  • Has abused his poisition as to render his continuance in office prejudicial to public interest

Power and Functions of Commission [SECTION 10]

Following functions shall be performed by the Commission:

(a) lay down policies for maintaining a high quality and high standards in

education of Indian System of Medicine and make necessary regulations in this behalf;

(b) lay down policies for regulating medical institutions, medical researches and medical professionals and make necessary regulations in this behalf;

(c) assess the requirements in healthcare, including human resources for health and healthcare infrastructure and develop a road map for meeting such requirements;

(d) frame guidelines and lay down policies by making such regulations as may be necessary for the proper functioning of the Commission, the Autonomous Boards and the State Medical Councils of Indian System of Medicine;

(e) ensure coordination among the Autonomous Boards;

(f) take such measures, as may be necessary, to ensure compliance by the State Medical Councils of Indian System of Medicine of the guidelines framed and regulations made under this Act for their effective functioning under this Act;

(g) exercise appellate jurisdiction with respect to decisions of the Autonomous Boards;

(h) ensure observance of professional ethics in Medical profession and to promote ethical conduct during the provision of care by medical practitioners;

(i) frame guidelines for determination of fees and all other charges in respect of fifty per cent. of seats in private medical institutions and deemed to be Universities which are governed under the provisions of this Act;

(j) exercise such other powers and perform such other functions as may be prescribed

Advisory Council [Sections 11 to 13]

Advisory Council shall be the primary platform through which the State and Union Territories may put forth their views and concerns before the Commission.

NATIONAL EXAMINATION [Sections 14 to 16]

National Eligibility-cum-Entrance Test [SECTION 14]

A unifrom National Eligibility-cum-Entrance Test for admission to the undergraduate courses in each of the disciplines of the Indian System of Medicine in all medical institutions governed by this Act shall be conducted.

National Exit Test for Undergraduates [SECTION 15]

To grant license as a medical parctitioner to the undergraduate final year students, a common national exit test shall be held.

National Entrance Test for Post-Graduates [SECTION 16]

A uniform Post-Graduate National Entrance Test shall be conducted separately for admission to postgraduate courses in each discipline of the Indian System of Medicine.

Postgraduates |National Teachers ’ Eligibility Test for Indian System of Medicine [SECTION 17]

A National Teachers’ Eligibility Test shall be conducted separately for the postgraduates of each discipline of Indian System of Medicine who desire to take up teaching profession in that discipline.

Constitution of Autonomous Boards [SECTION 18]

Central Government shall constitute the follwoing Autonomous Boards which shall be under the overall supervision of the Commission:

(a) the Board of Ayurveda;

(b) the Board of Unani, Siddha and Sowa-Rigpa;

(c) the Medical Assessment and Rating Board for Indian System of Medicine; and

(d) the Board of Ethics and Registration for Indian System of Medicine.

Powers and Function of Autonomous Boards [SECTION 26]

(a) determine the standards of education at the undergraduate, postgraduate and super-speciality levels

(b) develop a competency based dynamic curriculum at all levels, in such manner that it develops appropriate skill, knowledge, attitude, values and ethics among the postgraduate and super-speciality students and enables them to provide healthcare, to impart medical education and to conduct medical research;

(c) frame guidelines on setting up of medical institutions for imparting undergraduate, postgraduate and super-speciality courses in Ayurveda, Unani, Siddha and Sowa-Rigpa;

(d) determine minimum requirements and standards for conducting of courses and examinations in medical institutions, having regard to the needs of creativity at local levels and the regulations made under this Act;

(e) determine standards and norms for infrastructure, faculty and quality of education and research in medical institutions of Indian System of Medicine, in accordance with the regulations made under this Act;

(f) specify norms for compulsory annual disclosure, electronically or otherwise, by medical institutions of Indian System of Medicine in respect of their functions that has a bearing on the interest of various stakeholders including students, faculty, the Commission and the Government;

(g) facilitate development and training of faculty members;

(h) facilitate research programmes;

(i) grant recognition to medical qualifications at all levels.

Powers and functions of Board of Ethics and Registration for Indian System of Medicine have been laid down under Section 27 & Powers and functions of Medical Assessment and Rating Board for Indian System of Medicine have been laid down under Section 28.

State Medical Council [SECTION 31]

State Government within 3 years of the commencement of the Act shall establish a State Medical Council for Indian System of Medicine in that State.

The said Council shall be responsible to take disciplinary actions in respect of any professional or ethical meisconduct by a resgistered practitioner of India System of Medicine.

National Register and State Register of Indian System of Medicine [SECTION 32]

Board of Ethics and Registration for Indian System of Medicine shall maintain a National Register containing the name, address, all recognised qualifications possessed by a licensed medical practitioner of the Indian System of Medicine and such other particulars as may be specified by regulations.

Rights of persons to practice [SECTION 34]

Only the persons who will be registered in either the State Register of the National Register shall:

  • allowed to practice Indian System of Medicine as a qualified practitioner
  • hold office as a physician or surgeon or any other office, by whatever name called, which is meant to be held by a physician or surgeon
  • be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner
  • be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 on any matter relating to Indian System of Medicine

To read the detailed act, please follow the link: ACT


Ministry of Law and Justice

Case BriefsSupreme Court

Supreme Court: The vacation bench of Deepak Gupta and Surya Kant, JJ has refused to grant extension of time to respective medical colleges/deemed universities for carrying out counselling for P.G. courses and has said,

“If we permit violation of schedule and grant extension, we shall be opening a Pandora’s box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated.”

The petition filed by Education Promotion Society for India which representing a large number of   educational institutions including medical colleges running post­graduate (P.G.) medical courses that showed concern over the large number of seats in these colleges that are lying vacant. It was argued that there is an acute shortage of doctors in India and, in fact, the Union of India has permitted increase of seats in government medical colleges without increase of infrastructure

“this shows that the intention of the State is to ensure that more and more doctors pass out and treat the patients.”

The petitioner also cited various orders of this Court where extension of time was granted to medical colleges for carrying out counselling. On this the Court said,

“In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the P.G. courses are lying vacant.”

Taking judicial notice of the fact that every year large number of nonclinical seats remain vacant because many graduate doctors do not want to do post­graduation in non­clinical subjects, the Court said,

“Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed.”

[Education Promotion Society for India v. Union of India, 2019 SCC OnLine SC 780, decided on 21.06.2019]