Madras High Court
Case BriefsHigh Courts

Madras High Court: G R Swaminathan J. directed the State to pay compensation of Rs 1 Lakh to a student who could not take admission in the medical course in the academic year 2021-2022 as he was unable to register his name on the portal for NEET counseling even after obtaining marks beyond cut off limit, due to poor internet connectivity.

The petitioner aspiring to be a doctor is aggrieved because even after securing 409 marks in NEET exam, he could not register his name on the portal on time because of poor internet connectivity and the server being busy. He later found that students who scored as low as 108 marks in NEET were allotted seats under the management quota. Thus, instant petition was filed under Article 226 praying to issue a writ of Mandamus directing the respondents to give admission to the petitioner in any one of the Medical College under the Management Quota based on the petitioner’s NEET Examinations score.

The Court reaffirmed the stand of the counsel for respondent stating that it is not possible to direct the admission of the petitioner for any medical course for the academic year 2021-22 as the writ petition was filed in April 2022 .

The Court also remarked for the marks obtained by him was entitled to get admission in a medical course under management quota but could not because of online glitches. If the respondents adopted a dual mode of counselling, i.e., both physical and online, the situation could have been avoided and also,If the respondents had given the petitioner reasonable time to register himself in the portal, then probably, he could have made it.

Placing reliance on Asha v. PTBD Sharma University of Health Sciences, (2012) 7 SCC 389 and S Krishna Sradha v. State of Andhra Pradesh, (2020) 17 SCC 465, the Court noted that Court must do complete justice between the parties, particularly, where the legitimate right of the Appellant stands frustrated because of inaction or inappropriate action on the part of the concerned Respondents and in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

Further reliance was placed on Action Committee Unaided Recognized Private Schools v. Justice for All, Special Leave to Appeal (C) No. 4351 of 2021, decided on 08-10-2021 to emphasize that the digital divide has produced stark inequality in terms of access to education. Children belonging to EWS/DG suffer the consequence of not being able to fully pursue their education and many may have to drop out because of lack of access to internet and computers.

The Court directed the State to pay a sum of Rs.1 lakh as compensation to the petitioner-student within a period of eight weeks and ensure that the selection process is conducted and finalized in such a way so as to ensure that incidents such as the one on hand do not recur.

[K Lal Bhagadhur v. Director of Medical Education, 2022 SCC OnLine Mad 3661, decided on 13-07-2022]


Advocates who appeared in this case :

Mr. D. Srinivasaraghavan for Mr. S.M. Mohan Gandhi, Advocates, for the Petitioner;

Mr. V. Om. Prakash, Government Advocate, for the Respondents.


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the issue relating to the reservation of 50% Super Specialty seats for in-service candidates in Government Medical Colleges in the State of Tamil Nadu, the bench of L. Nageswara Rao and BR Gavai*, JJ has refused to extend the interim protection which was granted for the academic year 2020-2021

The Supreme Court had, on 27th November, 2020 directed that counselling for admission to Super Specialty medical courses for the academic year 2020-2021 shall proceed without providing for reservation to in-service candidates/doctors. The Court had specifically observed that the process for admissions to Super Specialty medical courses started on 3rd August, 2020, and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty medical courses.

The impugned G.O. was issued on 7th November, 2020, i.e., after the admission process had begun.  Hence, what weighed with this Court while passing the interim order dated 27th November, 2020 was that the rules of the game were changed after the admission process had begun. However, the Court had specifically clarified that it had not expressed any opinion on the validity of said G.O. It also made amply clear that the said direction would be operative only for the academic year 2020-2021.

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 24 November, 2020. The State of Tamil Nadu would, however, be at liberty to continue the counselling for academic year 2021-2022 by taking into consideration the reservation provided by it as per the said G.O.

[N. Karthikeyan v. State of Tamil Nadu, 2022 SCC OnLine SC 331, decided on 16.03.2022]


*Judgment by: Justice BR Gavai


Counsels

For appellants: Senior Advocates Dushyant Dave, Shyam Divan and Gopal Sankaranarayanan

For UOI: ASG Aishwarya Bhati

For State of Tamil Nadu: Senior Advocate CS Vaidyanathan and AAG Amit Anand Tiwari

For In-service Doctors: Senior Advocate P. Wilson


Also read

No reservation for in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021; holds SC

Case BriefsHigh Courts

Meghalaya High Court: H. S. Thangkhiew, J. allowed a petition in which he had to consider whether this Court can direct the respondents to consider the petitioner for filling up the vacant seat for the MBBS Course.

The petitioner an aspirant for admission into the MBBS Course at the North Eastern Indira Gandhi Regional Institute of Health and Medical Science (NEIGRIHMS), after qualifying in the National Eligibility Cum Entrance Test (NEET) Examination, had been invited for the second e-counselling for admission into MBBS Course for the Session 2021-2022. The petitioner was further informed that the counselling would be on a virtual platform to be held on 07-03-2022 to fill up 4(four) vacant seats.

She was aggrieved by the fact that the link details for joining the Video Conference which had been communicated by the respondents landed in her spam mail, and the petitioner was not aware that she had received the link for the e-counselling, as the same did not appear either on her registered email id or mobile number, and as such she could not be present on the date and time, when the said e-counselling was held.

On 09-03-2022, this Court had directed that the case be kept on hold to await the final acceptance of the seats, for which the candidates would have to comply by 11-03-2022. On 14-03-2022 when the matter was taken up again, the petitioner had filed an affidavit stating one candidate did not report as he had already secured admission at RIIMS Imphal, as such the fourth seat was still vacant.

Respondents had averred that the petitioner was absent on the date fixed for counselling the contention that the intimation had gone to her spam mail cannot be relied upon, and as per rule, the vacant seat should be given to the first candidate in the waiting list.

The Court was of the view that in this age of technology and in the prevalent COVID situation, a lot of such lapses have occurred especially when it concerns matters like these which involves communication through digital platforms. It is undisputed that the petitioner as per the merit list for the second counselling was placed at No. 4, and as such was assured of a seat for the MBBS Course, had she attended the counselling as scheduled, but however, due to the situation that had prevented her from appearing for the e-counselling, she is at risk of being deprived of a seat to pursue the MBBS Course.

The Court allowed the petition considering that in the normal circumstances, nothing would have prevented the writ petitioner from tendering her candidature for the said seat, the instant matter being peculiarly situated deserves consideration on a different footing. The Court directed the respondents to facilitate counselling for the petitioner via physical mode or otherwise within 1(one) week from today, with prior notice to the petitioner and decide accordingly on the merits of the petitioner.[Bisakha Geonka v. North Eastern Indira Gandhi Regional Institute of Health & Medical Sciences, 2022 SCC OnLine Megh 58, decided on 15-03-2022]


For the Petitioner(s) : Mr H.L. Shangreiso, Sr. Adv. with Ms P. Biswakarma

For the Respondent(s) : Dr. N. Mozika, Sr. Adv. with Ms S. Rumthao


Suchita Shukla, Editorial Assistant has reported this brief.

Legal RoundUpSupreme Court Roundups

“Merit is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75


STORY OF THE MONTH


“Reservation is not at odds with merit”; Here’s why SC upheld OBC reservation in NEET PG and UG Admissions in AIQ quota

In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

Read more…


UNMISSABLE STORIES


COVID-19/Omicron surge yet again forces Supreme Court to extend period of limitation for filing of cases

After the Supreme Court Advocates-on-Record Association approached the Court in light of the spread of Omicron, the new variant of the COVID-19 and the drastic surge in the number of COVID cases across the country, the 3-judge bench of NV Ramana, CJ and L. Nageswara Rao and Surya Kant, JJ restored the order dated 23.03.2020 and directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.

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PM Modi Security Lapse: “War of words no solution”; SC appoints Committee headed by Justice Indu Malhotra to look into the matter

After a massive security lapse that left Prime Minister Narendra Modi stuck on a highway in Punjab for 20 minutes on January 5, 2022, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has formed a committee to be chaired by Justice Indu Malhotra, former Supreme Court Judge.

Read more…

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NEET 2021-22: Supreme Court allows Counselling with 27% Quota for OBCs and 10% Quota for EWS in All India Quota

 Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

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Suspension of 12 Maharashtra BJP MLAs for one year “grossly illegal”; worse than expulsion, disqualification or resignation

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behavior resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

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“Can’t allow Devas and its shareholders to reap the benefits of their fraudulent action”; SC upholds NCLAT’s order to wind up Devas  

“If the seeds of the commercial relationship between Antrix and Devas were a product of fraud perpetrated by Devas, every part of the plant that grew out of those seeds, such as the Agreement, the disputes, arbitral awards etc., are all infected with the poison of fraud.”

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Arcelor Mittal Nippon Steel India Limited to pay the purchase tax of Rs. 480 Crores as SC sets aside Gujarat HC verdict

In a major blow to Essar Steel Limited, now Arcelor Mittal Nippon Steel India Limited), the bench of MR Shah* and Sanjiv Khanna, JJ has set aside the Gujarat High Court verdict wherein it was held that Essar was entitled to the exemption from payment of purchase tax as per the Notification dated 05.03.1992, which was issued under Section 49(2) of the Gujarat Sales Tax Act, 1969. As a result Essar will now have to pay the purchase tax of Rs.480.99 crores.

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Dowry Death| Woman meting out cruelty to another woman deserves no leniency. Mother-in-law must protect daughter-in-law, not harass her: SC

“Being a lady, the appellant, who was the mother-in-law, ought to have been more sensitive vis-à-vis her daughter-in-law.”

Read more…

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Can Demand of Money for Construction of a House be Treated as a Dowry Demand? SC answers in a 2002 case where a 5-months pregnant woman set herself on fire

“A push in the right direction is required to accomplish the task of eradicating this evil which has become deeply entrenched in our society.”

Read more…

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Pension is not a bounty; Lack of financial resources no excuse for taking away vested rights by way of retrospective amendments

The bench of Ajay Rastogi and Abhay S. Oka, JJ has held that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.

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Cal HC had no jurisdiction to quash CAT Principle Bench’s transfer order in Alapan Bandhopadhyay Case, holds SC, based on this Constitution Bench Law holding ground since 1997

The 2-judge bench of AM Khanwilkar and CT Ravikumar, JJ has reiterated the position laid down by the Constitution Bench in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, that any decision of such a Tribunal, including the one passed under Section 25 of the Administrative Tribunals Act, 1985 could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls.

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EXPLAINERS



MORE STORIES


“Not a case of lack of promotional opportunities”; No financial upgradation to employee refusing regular promotion for personal reasons

The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she/he has suffered stagnation.

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Life cannot be breathed into the stillborn charge memorandum; SC holds where prior approval is the rule the defect cannot be cured by post-facto approval

“What is non-existent in the eye of the law cannot be revived retrospectively.”

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Cheque gets deposited to the account of account holder with strikingly similar name. Bank blames customer. Read why SC was “surprised” at NCDRC’s ruling

In an interesting case where one SBI account holder was left with a balance of Rs. 59/- only in his account due to the existence of another bank account with strikingly similar name in the same branch, the bench of Sanjiv Khanna and Bela M. Trivedi*, JJ has set aside the “highly erroneous” impugned order passed by the National Consumer Disputes Redressal Commission solely relying upon the suo-moto report called for from SBI during the pendency of the revision application.

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Reservation in promotion: The 6 issues settled by Supreme Court on collection of quantifiable data on inadequacy of representation

The 3-judge bench of L. Nageswara Rao*, Sanjiv Khanna and BR Gavai has answered 6 crucial questions in relation to quantifiable data showing inadequacy of representation in promotional posts.

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Delinquent employee doesn’t have an absolute right to be represented in departmental proceedings by the agent of his choice

In a case where the Rajasthan High Court had permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank, the bench of MR Shah* and Sanjiv Khanna, JJ has interpreted Regulation 44 of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulation, 2010 read with clause 8.2 of the Handbook Procedure to hold that the delinquent employee has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings.

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COVID-19| A Biological Weapon? Most misconceived! SC rules it is for the elected Government to take necessary action if any

While addressing a petition making bizarre claim that virgin Coconut Oil can dissolve Covid-19 virus, the Division Bench of Sanjay Kishan Kaul and M.M. Sundresh, JJ., held that it cannot let every person who believes that he has some solution to the virus, to come up in a petition under Article 32 of the Constitution.

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High Court’s Revisional jurisdiction under Section 401 Cr.P.C re power to reverse acquittal. SC answers important questions

“Though the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.”

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P&H HC directs State to provide sports quota of 3% in Government Medical/Dental Colleges instead of 1% provided in policy decision. Such mandamus impermissible, holds SC

Explaining the scope of writ jurisdiction, the bench of MR Shah* and BV Nagarathna, JJ has held that the State Government’s action taking a policy decision to prescribe a particular percentage of reservation/quota for a particular category of persons, cannot be interfered with by issuance of a writ of mandamus, directing the State Government to provide for a particular percentage of reservation for a particular category of persons other than what has been provided in the policy decision taken by the State Government.

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Person with 54% disability pinned to the ground, throttled by neck and consequently killed by strangulation; SC cancels HC order granting bail to the accused

Finding the order of the High Court cryptic and casual, de hors coherent reasoning, the Bench invoked the latin maxim “cessante ratione legis cessat ipsa lex” to hold that “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”.

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Civil Court has no jurisdiction in dispute relating to property governed by the Haryana (Control of Rent & Eviction) Act, 1973: SC

The Court was deciding the dispute relating to suit property situated within the municipal limits of Kaithal which is governed by the Haryana (Control of Rent & Eviction) Act, 1973.

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Traffic blockage due to agitation, failure to deliver consignment within validity period of e-way bill; SC imposes cost of Rs. 59000 on Sales Tax Officer for illegally imposing penalty

“When the undeniable facts, including the traffic blockage due to agitation, are taken into consideration, the State alone remains responsible for not providing smooth passage of traffic.”

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Whether adoption of parent Government Resolution by an undertaking leads to automatic adoption of subsequent modifying resolutions?

“There are limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work’.”

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State ‘exclusivity’ for disallowance of certain fee, charge, etc. is to be viewed from the nature, not the number of undertakings on which the levy is imposed

The Division Bench of R. Subhash Reddy* and Hrishikesh Roy, JJ., held that to determine State Monopoly for disallowance of certain fee, charge, etc. in the case of State Government Undertakings the aspect of ‘exclusivity’ has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings on which the levy is imposed.

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Failure to provide occupancy certificate a deficiency in service under the Consumer Protection Act and also a continuing wrong

The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has held that failure on the part of the builder to provide occupancy certificate is a continuing breach under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and amounts to a continuing wrong.

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Whether charitable education institutions exempted from levy of electricity duty under Maharashtra Electricity Act, 2016? Supreme Court interprets

The Division Bench comprising of M. R. Shah* and Sanjiv Khanna, JJ., reversed the impugned order of the High Court whereby the High Court had held that education institutions run by charitable societies are exempted from payment of electricity duty.

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Non-consideration for subsequent preference post after being declared ineligible for first post preference: Is it unjust? Supreme Court answers

While addressing the issue as to whether a candidate is entitled to claim appointment on a subsequent post in his preference list after having being considered for his first preference and being declared not suitable for the said post due to non-fulfilment of physical requirements, the Division Bench of Dr Dhananjaya Y Chandrachud and A.S. Bopanna*, JJ., replied in negative.

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“Democratic interests cannot be judicially aborted to preserve unfettered freedom to conduct business, of the few”; Govt. decision to ban MTTs in PPE products ensures adequate PPE in India: SC

“This Court must be circumspect that the rights and freedoms guaranteed under the Constitution do not become a weapon in the arsenal of private businesses to disable regulation enacted in the public interest.”

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Order de hors reasoning cannot result in grant of bail! SC holds informant has a right to assail bail orders bereft of reasons before a higher forum

“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.”

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Scrap picker beaten to death; incident recorded in CCTV: State failed to protect victim’s rights by not challenging Guj HC’s order releasing accused on bail; SC cancels bail

In a case where a scrap picker was beaten to death and the Gujarat High Court had released one of the accused on bail despite the entire incident been recorded in the CCTV footages and the mobile phone, the bench of MR Shah and BV Nagarathna, JJ has cancelled the bail and has observed that by not filing the appeals by the State against the impugned judgments and orders releasing the accused on bail in such a serious matter, the State has failed to protect the rights of the victim.

Read more…

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Gift deed by an old illiterate woman: SC approves not legalistic but holistic approach by lower courts to determine validity of deed. HC’s verdict set aside

In an issue relating to the alleged gift deed by an old illiterate woman, the bench of MR Shah and Sanjiv Khanna*, JJ has held that when a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document.

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No more uncertainty over fixation of percentage of reservation for OBC and SC/ST candidates; SC interprets Section 3 Second Proviso of CEI Act, 2006

The bench of L. Nageswara Rao and Hima Kohli, JJ has held that the formulae for fixing the percentage of reservation for the SC and ST candidates and for determining the percentage of seats to be reserved for OBC candidates under the second proviso of Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006, ought to be gathered from the same source and any other interpretation would lead to uncertainty.

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3-year old raped and strangulated to death; Read why Supreme Court commuted Death Sentence to life imprisonment

The Fast Track Court, Raigarh had convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012 and vide the same judgment and order, the appellant was sentenced to death for the offence punishable under Section 302 of the IPC. Subsequently, vide the impugned judgment and order, the High Court had confirmed the death penalty.

Read more…

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Mere recommendation of the SP at the initial stage not sufficient to claim a right for promotion: SC explains Punjab Police Rules, 1934

In 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, the bench of KM Joseph and PS Narsimha, JJ has held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.

Read more…

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No scaling down of sentence to 10 years as per NDPS Act for man sentenced to 26 years in prison by Mauritius SC for being in possession of over 150 gms of heroin

In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.

Read more…

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No Pensionary Benefits To WALMI Employees; Employees Of Autonomous Bodies Can’t Claim Benefits On A Par With Government Employees As Matter Of Right

“… the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees.”

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Whether the term “school children” includes university students while interpreting Government Memo exempting buses carrying school children from Passengers Tax? SC clarifies

While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked,

“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”

Read more…


CASES REPORTED IN SCC


2021 SCC Vol. 9 Part 1

Ranging from Arbitration, Service Law to Family Law, this Volume 9 Part 1 brings in some very carefully and expertly analysed Judgments

2021 SCC Vol. 9 Part 2

In this part read a very interesting decision expertly analysed by our editors. Supreme Court ruled that the trustees are required to

SCC Snippets

Are Clients Or Courts Bound By Lawyer’s Statements Or Admissions As To Matters Of Law Or Legal Conclusions?


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

Case BriefsSupreme Court

Supreme Court: In a detailed judgment, the bench of Dr. DY Chandrachud and AS Bopanna, JJ has upheld the Constitutional validity of the reservation for OBC candidates in the AIQ seats for PG and UG  medical and dental courses and noticed that while an open competitive exam may ensure formal equality where everyone has an equal opportunity to participate, however, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.

It is important to note that considering the urgent need to commence the process of Counselling, the Court had, on January 7, 2022, directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats. Read here

Purpose of Reservation

The underlying rationale of the reservation policy that seeks to remedy the structural barriers that disadvantaged groups face in advancing in society. Reservation is one of the measures that is employed to overcome these barriers. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer.

Special provisions (like reservation) enable disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centres to prepare for a competitive examination but also includes their social networks and cultural capital (communication skills, accent, books or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family‘s standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities.

On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advise on how to prepare for examination and advance in their career even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages and inherited skills work to the advantage of individuals belonging to certain classes, which is then classified as “merit” reproducing and reaffirming social hierarchies.

What is “merit”?

““Merit” is not solely of one‘s own making. The rhetoric surrounding merit obscures the way in which family, schooling, fortune and a gift of talents that the society currently values aids in one‘s advancement.”

Thus, the exclusionary standard of merit serves to denigrate the dignity of those who face barriers in their advancement which are not of their own making. However,

“While examinations are a necessary and convenient method of distributing educational opportunities, marks may not always be the best gauge of individual merit. Even then marks are often used as a proxy for merit. Individual calibre transcends performance in an examination. Standardized measures such as examination results are not the most accurate assessment of the qualitative difference between candidates.”

At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, which are also shaped by lived experiences, subsequent training and individual character.

Hence, the meaning of “merit” itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a “meritorious individual”, they often perpetuate and reinforce the existing ascriptive identities of certain communities as “intellectual” and “competent” by rendering invisible the social, cultural and economic advantages that increase the probabilities of success.

For instance, if a high-scoring candidate does not use their talents to perform good actions, it would be difficult to call them “meritorious” merely because they scored high marks. The propriety of actions and dedication to public service should also be seen as markers of merit, which cannot be assessed in a competitive examination. Equally, fortitude and resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre.

Hence. merit should not be limited to individual agency or but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses.

Whether after graduation, an individual is entitled to reservation on the ground that they belong to a class that suffers from social and educational backwardness?

The Court observed that it cannot be said that the impact of backwardness simply disappears because a candidate has a graduate qualification. Indeed, a graduate qualification may provide certain social and economic mobility, but that by itself does not create parity between forward classes and backward classes. In any event, there cannot be an assertion of over-inclusion where undeserving candidates are said to be benefitting from reservation because OBC candidates who fall in the creamy layer are excluded from taking the benefit of reservation. Thus, we find that there is no prohibition in introducing reservation for socially and educationally backward classes (or the OBCs) in PG courses.

Why is reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses constitutionally valid?

  • Articles 15(4) and 15 (5) are not an exception to Article 15 (1), which itself sets out the principle of substantive equality (including the recognition of existing inequalities). Thus, Articles 15 (4) and 15 (5) become a restatement of a particular facet of the rule of substantive equality that has been set out in Article 15 (1);
  • Merit cannot be reduced to narrow definitions of performance in an open competitive examination which only provides formal equality of opportunity. Competitive examinations assess basic current competency to allocate educational resources but are not reflective of excellence, capabilities and potential of an individual which are also shaped by lived experiences, subsequent training and individual character. Crucially, open competitive examinations do not reflect the social, economic and cultural advantage that accrues to certain classes and contributes to their success in such examinations;
  • High scores in an examination are not a proxy for merit. Merit should be socially contextualized and reconceptualized as an instrument that advances social goods like equality that we as a society value. In such a context, reservation is not at odds with merit but furthers its distributive consequences;
  • Articles 15 (4) and 15 (5) employ group identification as a method through which substantive equality can be achieved. This may lead to an incongruity where certain individual members of an identified group that is being given reservation may not be backward or individuals belonging to the non-identified group may share certain characteristics of backwardness with members of an identified group. The individual difference may be a result of privilege, fortune, or circumstances but it cannot be used to negate the role of reservation in remedying the structural disadvantage that certain groups suffer;
  • The scheme of AIQ was devised to allot seats in State-run medical and dental institutions in which students from across the country could compete. Providing reservation in the AIQ seats is a policy decision of the Government, which will be subject to the contours of judicial review similar to every reservation policy;
  • Clause 11 of the information bulletin specifies that the reservation applicable to NEET-PG would be notified by the counselling authority before the beginning of the counselling process. Therefore, the candidates while applying for NEET-PG are not provided any information on the distribution of seat matrix. Such information is provided by the counselling authority only before the counselling session is to begin. It thus cannot be argued that the rules of the game were set when the registration for the examination closed.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 75, decided on 20.01.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Case BriefsSupreme Court

Supreme Court: Considering the urgent need to commence the process of Counselling, the bench of Dr. DY Chandrachud* and AS Bopanna, JJ, has directed that counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the All India Quota seats.

The order came after the notice issued by the Directorate General of Health Services in the Union Ministry of Health and Family Welfare on 29 July 2021 was challenged by the doctors who appeared in the NEET- PG 2021 examination.

The notice implements a 27 per cent reservation for Other Backward Classes1 (non-creamy layer) and a 10 per cent reservation for the Economically Weaker Section, while filling up 15 per cent undergraduate and 50 per cent post-graduate All India Quota seats in pursuance of the National Eligibility cum Entrance Test. The notice takes effect from the current admission year, 2021-2022.

It was argued before the Court that there cannot be any reservation for the OBC and EWS category in the AIQ seats in NEET-PG and that the criteria for the determination of the EWS category notified by O.M 36039/1/2019 (OM 2019) was unconstitutional.

On 25 October 2021, the Union Government of its own accord deferred the counselling due to the pendency of the petitions. Thereafter, the Union Government filed an affidavit justifying the EWS criteria on 26 October 2021 stating that the criteria was adopted after due deliberation within the Ministry of Social Justice and Empowerment and all the concerned stakeholders.

The Union Government formed the Panday Committee on 30 November 2021 to review the criteria for identifying EWS. The Committee submitted its report on 31 December 2021. Thereafter, the Union Government filed an affidavit before this Court accepting the recommendations of the Committee including the recommendation that the existing criteria for identifying EWS be retained for the present admission year 2021-2022.

While the Supreme Court observed that the formulation of the reasons in the interim order on the EWS reservation would take some time, it upheld the validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG and directed that the counselling be conducted in order to ensure that the admission process is not dislocated.

The Court further directed that,

  • The criteria for the determination of the EWS notified by OM 2019 shall be used for identifying the EWS category for candidates who appeared for the NEET-PG 2021 and NEET-UG 2021 examinations;
  • The validity of the criteria determined by the Pandey Committee for identification of EWS would prospectively for the future be subject to the final result of the petitions; and
  • The petitions shall be listed for final hearing on the validity of the EWS criteria as recommended by the Pandey Committee in the third week of March 2022.

[Neil Aurelio Nunes v. Union of India, 2022 SCC OnLine SC 21, decided on 07.01.2022]


*Judgment by: Justice Dr. DY Chandrachud

Counsels

For petitioners: Senior Advocates Arvind Datar, Shyam Divan and Anand Grover and AORs Charu Mathur, Vivek Singh, Subodh S. Patil

For Respondents: SG Tushar Mehta, ASG Nataraj, Additional Solicitor General, ASG Vikramajit Banerjee and Senior Advocates P Wilson, Mariarputham

Legal RoundUpSupreme Court Roundups

“It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

-Justice S. Ravindra Bhat

Attorney General for India v. Satish2021 SCC OnLine SC 1076


TOP STORIES


Story of the Month

POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent” 

A 3-judge bench of UU Lalit, Bela Trivedi and S. Ravindra Bhat, JJ has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. 

Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion came from a woman judge. 

When the matter reached before the Supreme Court, Justice Bela Trivedi, writing for herself and Justice UU Lalit, held that

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” 

Read more… 


SC relief to death row convicts who killed 8 members of their brother’s family over property dispute; To serve LI for 30 years

“There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent.”

Read more…

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5-year-old raped, killed, thrown into a stream: SC commutes death sentence to life imprisonment

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat.”

Read more…

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NEET| “Behind abstract number of ‘15 lakh students’ lie human lives”; SC asks NTA to rectify injustice caused to a “one-off” PwBD student

“Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education.”

Read more…

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Land Acquisition| Applying 2-year limitation period as per Section 11A of 1894 Act for passing award in pending cases under Section 24(1)(a) of the 2013 Act impractical

Practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act.

Read more…


EXPLAINERS 



MORE STORIES 


Contractual clauses cannot run contrary to legislative intent

“General phraseology of a contract cannot constitute agreement to apply statutory amendments retrospectively.”

Read more…

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Disinvesting of Hindustan Zinc Ltd.; SC smells irregularities in bidding process, directs full-fledged CBI enquiry in the matter

“There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest.”

Read more…

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Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorization

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

Read more…

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Some out of five accused abscond; remaining can still be tried for dacoity

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

Read more…

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National Security Act| Delay in considering representation; non-communication of rejection strike at the heart of fundamental rights of detenu

“Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.”

Read more…

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Merely having an explicit clause not sufficient to make time the essence of the contract

Whether time is of the essence in a contract’, has to be culled out from the reading of the entire contract as well as the surrounding circumstances.”

Read more…

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Tamil Nadu’s loan waiver Scheme for small and marginal farmers upheld

The percentage distribution of the indebted agricultural households depicted the poverty that envelops the class of small and marginal farmers.

Read more…

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Contractual bar on interest doesn’t only bar the parties from claiming it but also the Arbitrator from awarding it

“Once the contractor agrees that he shall not be entitled to interest on the amounts payable under the contract, including the interest upon the earnest money and the security deposit, the arbitrator in the arbitration proceedings being the creature of the contract has no power to award interest”

Read more…

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Decreeing a claim while exercising jurisdiction under Section 37 of Arbitration and Conciliation Act 1996 impermissible

“While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34.”

Read more…

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‘Practically difficult to achieve absolute consistency in sentencing’ but here’s what the Courts should do

“It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner.”

Read more…

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High Court cannot dismiss second appeal in limine without assigning any reasons

“Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted.”

Read more…

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HC quashes proceedings based on “draft charge-sheet” yet to be placed before Magistrate! Clear abuse of S. 482 CrPC, holds SC

The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.

Read more…

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Not wise to shift burden of proof on accused merely because of rampant increase in henious crimes; SC acquits man in a 2009 dacoity case

“The acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent.”

Read more…

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SC not pleased with Raj HC granting bail merely by “keeping in view the facts and circumstances of the case”; says Courts must record reasons

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula.”

Read more…

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Not open for Courts to usurp function of disciplinary authority; Can’t substitute one disciplinary punishment with other

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

Read more…

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Land Acquisition| Right under Section 5A of 1894 Act to stave off compulsory acquisition cannot be unjustifiably extinguished

“The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

Read more…

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‘Project Proponent not expected to anticipate changes in Environmental Clearance regimes’; SC protects already constructed buildings by Pune Developer

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

Read more…

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‘Irregularity in cognizance order does not vitiate trial’; SC finds no “failure of justice” in cognizance by Special Judge in Karnataka iron ore illegal mining case

“For vitiating the proceedings, something more than a mere lack of authority has to be established.”

Read more…

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SC allows sand mining in Bihar; says total ban gives rise to illegal mining; causes huge loss to public exchequer

“When legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives.”

Read more…

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Law abiding ex-employees cannot be put to disadvantage merely for vacating the quarters on notice; SC holds decision to grant quarters only to unauthorized occupants is illegal

“To allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly.”

Read more…
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Military Services| “Much water has flown in the Ganges”; SC expresses dismay over appointments made from 1983 select panel after a lapse of 4-5 years

“No one has questioned their appointments…more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired.”

Read more…

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Written instruments entitled to much higher degree of credit than parol evidence; Old partnership deed clauses not superseded by new deed will continue to operate

“It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment the parties to be proved by the uncertain testimony of slippery memory.”

Read more…

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Mere renumbering of case file by the NIA Mumbai does not take away power of the ATS to continue investigation; SC affirms HC’s decision in Bombay bomb blast conspiracy case

“Mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.”

Read more…

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Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

“Natural justice is the sworn enemy of intolerant authority”

Read more…


CASES REPORTED IN SUPREME COURT CASES


An overview of the cases reported in the latest SCC Volumes

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2021 SCC Vol. 7 Part 3

2021 SCC Vol. 7 Part 4

2021 SCC Vol. 8 Part 1

2021 SCC Vol. 8 Part 2

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SCC Snippets on important law points 

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Using ‘promotion’ and ‘upgradation’ interchangeably? You won’t after reading this SC verdict

In Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy(2011) 9 SCC 510, the bench of RV Raveendran and Markandey Katju, JJ laid down principles relating to the promotion and upgradation.

Read more…

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Contract of Insurance vis-à-vis the requirement of uberrima fides

In Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd., (2009) 5 SCC 599, the bench of DK Jain and RM Lodha, JJ explained how a contract of insurance needs to be interpreted.

Read more…


Case BriefsSupreme Court

Supreme Court: In a case where a person suffering from Dysgraphia was denied compensatory time while appearing for National Eligibility cum Entrance Test (NEET), the bench of Dr. DY Chandrachud* and AS Bopanna, JJ has directed the National Testing Agency to the steps that can be taken to rectify the injustice within a period of one week. It said that NTA cannot hide behind the argument that ‘sixteen lakh students appeared for the NEET and hence injustice to a “one-off” student cannot be remedied’.

APPELLANT’S CASE

The appellant suffers from Dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disability Act 2016. She has been diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a ‘person with benchmark disability’ under Section 2(r) of the RPwD Act 2016. As a person with disability, she is entitled to reasonable accommodation and certain relaxations. Among them is the benefit of “inclusive education” by a suitable modification to the examination system, as mandated by Section 17(i) of the RPwD Act, 2016. The guidelines for conducting “Written Examination for Persons with Benchmark Disabilities”, 2018 govern the examinations of all students covered by the RPwD Act 2016. They are to be followed by all examining authorities and educational institutions conducting regular or competitive examinations.

The appellant, who appeared for NEET, averred that the designated centre was ignorant of the grant of special facilities that had to be provided to PwD candidates and that towards the end of the scheduled duration of three hours, her answer sheet was “forcibly” collected together with the category of regular students appearing for the examination depriving her of compensatory time.

On 23 September 2021, the appellant moved a writ petition under Article 226 of the Constitution before the Bombay High Court, seeking a direction to NTA to hold a fresh examination for her while accommodating her with all relaxations and benefits to which she was entitled under the rules and regulations.

NATIONAL TESTING AGENCY’S CASE

The appellant has secured an All India Rank of 1721 out of 2684 candidates qualified in the PwD category. In relation to the State of Maharashtra, the appellant has secured rank 249 out of 390 candidates in the PwD category.

Approximately 15.4 lakh candidates appeared at the NEET (UG) 2021 on 12 September 2021 for which the result was declared on 1 November 2021 and the All India Rank was forwarded on November 2021 to the Ministry of Health and Family Welfare, Government of India to conduct counselling for admission. It was, hence, submitted that alteration of the result at this stage would prejudicially affect other candidates who are ranked above the appellant. It was argued that, sixteen lakh students appeared for the NEET and hence injustice to a “one-off” student cannot be remedied.

ANALYSIS

Not pleased with the submission of NTA, the Court said that it must remember that all authority under the law is subject to responsibility, and above all, to a sense of accountability.

“Behind the abstract number of ‘15 lakh students’ lie human lives that can be altered due to the inadvertent, yet significant errors of NTA.”

The Court said that as an examining body, NTA was bound to scrupulously enforce the Guidelines for Written Examinations dated 29 August 2018 which provides for specific relaxations.

The Court stated that since the appellant has suffered injustice by a wrongful denial of these relaxations, a lack of remedy by would cause irretrievable injustice to the life of the student. The RwPD Act 2016 prescribing beneficial provisions for persons with specified disabilities would have no meaning unless it is scrupulously enforced.

Holding that NTA cannot be allowed to simply get away when confronted with the situation in hand whereby injustice has been caused to a student by standing behind the situation of a large competitive examination, the Court said,

“Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination.”

RELIEF AND DIRECTIONS

  • The relief sought by the appellant for holding a re-examination for the NEET (UG) is denied;
  • The appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a PwD and a PwBD. Accordingly, NTA is directed to consider what steps could be taken to rectify the injustice within a period of one week. Further, it shall take necessary consequential measures under intimation to the DGHS;
  • In the future, NTA shall ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act 2016 are clarified in the NEET Bulletin by removing ambiguity;
  • Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;
  • For the purpose of availing of the reservation under Section 32 of the RPwD Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and
  • The persons working for NTA and exam centres should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.

[Avni Prakash v. National Testing Agency, 2021 SCC OnLine SC 1112, decided on 23.11.2021]


Counsels:

For appellant: Advocate Rushabh Vidyarthi,

For NTA: Advocate Rupesh Kumar


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case Briefs

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., heard a writ petition which was filed Association of Private

Universities, Madhya Pradesh and Shri J.N. Chouksey, Chairman & Chancellor of one such Private University, challenging constitutional validity of Rule 2(13) read with Entry 3 and 4 of Schedule I of the Madhya Pradesh Medical Admission Rules, 2018 (Admission Rules of 2018) framed under Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (the Act of 2007) as being violative of Articles 14 and 19(1)(g) of the Constitution of India and repugnant to Regulation 9 and other provisions of the Medical Council of India Postgraduate Education Regulations, 2000 (Regulations of 2000).

The members of the petitioner association claim the right to admit the meritorious students from the merit list prepared by National Eligibility-cum-Entrance Test (for short “NEET”).

Counsel for the petitioners argued that there cannot be 100% reservation on the ground of domicile residence in study course of higher levels in medical education, specifically for admission to postgraduate medical courses. He further submitted that giving preference on the basis of domicile leads to loss of excellence as also merit in the case of admissions to medical courses whether it is UG or PG. It was further submitted that the concept of ‘institutional reservation’ applies only in the same university or same college. Counsel for the petitioners argued that impugned clause giving preference to domicile student to the extent of 100% seats, completely eliminates competition with far more meritorious candidates from outside the State, runs foul of Article 14 of the Constitution of India. The ‘reasonable object’ which is sought to be achieved by making such an omnibus provision excluding competition, merit and excellence at the national level, besides being arbitrary, is highly discriminatory. The impugned clause results in complete freezing of seats in favour of candidates who are either domicile of M.P. or who have done their MBBS from the medical colleges of the State. Reservation in excess of 50%, howsoever laudable, is constitutionally impermissible and unacceptable. The impugned clauses 3 and 4 of Entry 3 are thus ultra vires Article 14, 19(1) (g) and 21 of the Constitution of India.

Government Advocate for the respondent-State at the outset raised preliminary objection with regard to maintainability of the writ petition at the instance of the

Association of Private Universities contending that no non-domicile candidate has ever raised any grievance as regards the impugned rule and, therefore, the Union of Private Universities/Private Medical Colleges can have no legitimate grievance with the impugned rule giving preference to the candidates domiciled in the State of Madhya Pradesh, as what they are concerned with is the allocation of the students and the fee which they charge. He further submitted that impugned provision clearly shows that there is no ‘wholesale reservation’ ‘regardless of merit’, much less on the basis of mere domicile of the State. There is no complete bar for admission of those candidates who are domiciled outside the State as they may participate in the first round itself if they have passed their MBBS/BDS examination from a medical/dental college situated in the State of Madhya Pradesh. As regard those who are not domiciled in the State or have not passed MBBS/BDS examination in the State, they are also eligible for admission but only from second round onwards in the event of non-availability of candidates from first two streams. It was submitted that the object of giving preference to the domicile and institutional candidates was to ensure that more of those candidates take admission in the PG/specialized courses in the State whose possibility to serve the people of MP after completing of their PG course is more.

The Court after the submissions, filtered that the primary question therefore would be whether under the impugned provision the State was competent to give priority to the students domiciled in the State of Madhya Pradesh including those who have passed out MBBS examination from anywhere in the State of Madhya Pradesh or would the provision for making such reservation or in other words, for identifying the source of admission was beyond its competence?

The Court relied on the judgment of the Constitutional Bench of the Supreme Court in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine 699 wherein it was authoritatively held that the Union cannot with reference to its power under Entry 66 List I of the 7th Schedule of the Constitution provide for anything with respect to reservation/percentage of reservation and/or even mode of admission in the State quota and that this power is conferred upon the States under Entry 25 List III of 7th Schedule.

After which the relevant question to be assessed was as to what extent such a reservation or source of admission, can be made in respect of the seats in postgraduate medical courses in the private medical colleges?

In view of the peculiarity attached to the impugned Admission Rules of 2018, the question that was required to be answered is as to what extent such preference on the basis of domicile can be given and whether the limit of 50% propounded by the Supreme Court in case of Dr. Pradeep Jain v. Union of India, (1984) 3 SCC 654 and in the subsequent judgments, for institutional preference, should also apply to preference given on the basis of domicile? This question directly fell for consideration of the Supreme

Court in Dr. Tanvi Behl v. Shrey Goel, (2020) 13 SCC 675 in which the Court noted the similar reservation/preference has been given in favour of domiciles by as many as 13 states, details of which have been enumerated in Para 11 of the report.

The Court stated that the contention of the Government advocate that the decision in Dr.Tanvi Behl does not apply for admission to the PG Medical study courses in private medical colleges as it only deals with the State quota seats in government medical colleges cannot be countenanced for the simple reason that neither the MCI Postgraduate Regulations, 2000 nor the Admission Rules of 2018 make any distinction between the seats of the State quota in government medical colleges and the seats in the private medical colleges.

Unlike the government medical colleges, private medical colleges are not required to part with 50% of the seats in favour of all India quota, but that by itself does not give any authority to private medical colleges to fill up those seats on their own. All the seats even in private medical colleges are required to be filled up as per the common counseling with reference to Clause 9A(3) of the MCI Regulations, 2000 in the same manner in which 50% seats of the State quota in the government colleges are filled, on the basis of common counseling under the overall superintendence, direction and control of the State Government.

The Court didn’t deem it appropriate to interfere with the impugned provision as question of law involved in the present matter has been already referred to the Larger Bench of the Supreme Court and further stated that decision of the question whether in view of Section 8 of the Act of 2007, the State Government is empowered to only provide reservation in favour of SC/ST/OBC and further whether the State can identify the source of admission from amongst candidates domiciled in the State of Madhya Pradesh, as a separate class, has to await the answer of reference by the Larger Bench in Dr.Tanvi Behl case and the decision of which shall be binding on the parties.[Association of Private Universities v. State of M.P., Writ Petition No.6509 of 2019, decided on 21-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the petitioners: Shri Siddharth R. Gupta

Government Advocate for respondent 1& 2: Shri Bramhadatt Singh

For respondent 3: Shri Anoop Nair

Case BriefsSupreme Court

Supreme Court: A Division Bench of L. Nageswara Rao and Aniruddha Bose, JJ., quashed the notification dated 17-8-2016 issued by State Government of Haryana, which specified economic criterion as the sole basis of identification of ‘creamy layer’ (socially advanced sections) among backward classes for excluding them from the purview of benefit of reservation in State services and admission to educational institutions. The Supreme Court reiterated that the basis of exclusion of ‘creamy layer’ cannot be merely economic.

Factual Matrix

Scrutinising reservation in backward classes as recommended by the Mandal Commission, the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 had directed State Governments to identify ‘creamy layer’ amongst the backward classes and exclude them from the purview of reservation.

Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016 was enacted to provide for reservation in services and admission in educational institutions to persons belonging to backward classes in the State of Haryana. Section 5 of this Act provided that ‘creamy layer’ has to be excluded from purview of such reservation. Section 5(2) further postulate that the State Government is to specify criteria for identification and exclusion of ‘creamy layer’ after taking into consideration social, economic and such other factors as deemed appropriate.

2016 Notification

In exercise of powers under 2016 Act, the State Government issued notification dated 17-8-2016 specifying criteria for exclusion of ‘creamy layer’ within backward classes, according to which, sections of backward classes earning above Rs 6 lakh per annum shall be considered as ‘creamy layer’. There was further sub-classification as per which first preference in reservation was to be given to those sections earning upto Rs 3 lakh per annum, and after that to those earning more than 3 lakh but less than 6 lakh per annum.

2018 Notification

The 2016 Notification was challenged by MBBS aspirants before the Punjab and Haryana High Court, which challenge was upheld and the 2016 Notification was set aside. The State of Haryana questioned the correctness of High Court’s judgment before the Supreme Court. During pendency of the appeal, Haryana Government issued another notification dated 28-8-2018 whereby criteria for computing annual income for purposes of the 2016 Notification was fixed as Gross Annual Income which shall include income from all sources.

Students who qualified NEET-2018 again assailed validity of both notifications before the High Court. However, this time the High Court upheld both the notifications. The matter reached before the Supreme Court. The appeals were heard together with writ petition filed for quashing both the notifications.

Analysis and Observations

The Supreme Court noted that Section 5(2) of the 2016 Act clearly provides that social, economic and other factors have to be taken into account for the purpose of determining and excluding ‘creamy layer’ within a backward class.

The Court referred to the earlier notification dated 7-6-1995 issued by the Haryana Government, which was in tune with the judgment of the Supreme Court in Indra Sawhney, 1992 Supp (3) SCC 217.  That notification excluded certain persons who held constitutional posts and those who were in employment of the State and the Centre in higher posts from the benefit of reservation. In addition, the social advancement of other categories was taken into account for the purpose of including such categories in ‘creamy layer’. While issuing the 1995 Notification, the State Government had followed the criteria laid out in the memorandum dated 8-9-1993 issued by the Union of India. The Court further noted that strangely, by the 2016 Notification, identification of ‘creamy layer’ amongst backward classes was restricted only to the basis of economic criterion. It was observed that:

“In clear terms, this Court held in Indra Sawhney, 1992 Supp (3) SCC 217 that the basis of exclusion of ‘creamy layer’ cannot be merely economic.” 

Reliance was also placed on Indra Sawhney v. Union of India, (2000) 1 SCC 168 and Ashok Kumar Thakur v. State of Bihar, (1995) 5 SCC 403.

The Court concluded that the 2016 Notification was in flagrant violation of the directions issued by the Supreme Court in Indra Sawhney, 1992 Supp (3) SCC 217 and at variance with the memorandum dated 8-9-1993 issued by the Union of India. The criteria mentioned for identifying such of those persons who are socially advanced was not taken into account by the Government of Haryana while issuing the 2016 Notification. It was observed:

“In spite of Section 5(2) of the 2016 Act making it mandatory for identification and exclusion of ‘creamy layer’ to be on the basis of social, economic and other relevant factors, the State of Haryana has sought to determine ‘creamy layer’ from backward classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17-8-2016 requires to be set aside.”

Decision

In such view of the matter, the Supreme Court quashed the 2016 Notification dated 17-8-2016. Liberty was given to the State Government to issue fresh notification within a period of 3 months after taking into account principles laid down in Indra Sawhney, 1992 Supp (3) SCC 217 and criteria mentioned in Section 5(2) of the 2016 Act for determining ‘creamy layer’.

As the 2016 Notification was struck down in toto, the Court said that there was no need for adjudicating on validity of the 2018 Notification dated 28-8-2018, which depended solely on the 2016 Notification.

However, it was also directed that admissions to educational institutions and appointment to State services on the basis of these two notifications shall not be disturbed. [Pichra Warg Kalyan Mahasabha Haryana v. State of Haryana, 2021 SCC OnLine SC 635, dated 24-8-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, BR Gavai* and Krishna Murari, JJ has refused to grant any relief to the students who were admitted to the 1st  year Professional MBBS course for the Academic Session 2016-2017 in Glocal Medical College, in contravention of the Notification that provided that the admissions were to be done only through the centralized admission process and not by way of private counselling.

The review petitioners had argued before the Court that they were duly qualified to be admitted inasmuch as, they had cleared the NEET examination. The review petitioners were admitted through the counselling conducted by the Glocal Medical College and had also cleared the 1st year and 2nd year examination.

However, the MCI as well as the State of Uttar Pradesh, submitted on the other hand that the Glocal Medical College, being very well aware about the Notification dated  22.8.2016, had conducted private counselling, which was not permissible in law and as such, the review petitioners, who entered through backdoor entry, are not entitled to any equitable relief.

Rejecting the review petitioners’ contention that the Notification dated 22.8.2016 is only an administrative instruction and therefore not binding, the Court held that the private counselling by Glocal Medical College was conducted contrary to the Notification issued by the State of Uttar Pradesh, which, in turn, was based on the judgment in Modern Dental College and Research Centre v. State of Madhya Pradesh,  2016 SCC OnLine SC 373, decided on 2.5.2016.

3-member oversight committee constituted to oversee the functioning of MCI

Further, the Division Bench of the Allahabad High Court vide judgment dated 15.9.2016 had negated the challenge to the Notification dated 22.8.2016.

Hence, in the light of this position, it was not at all permissible for the Glocal Medical College to have   conducted   private counselling.

“The admissions which were conducted through the said private counselling cannot be termed as anything else but per se illegal.”

Further, MCI vide order dated 27.1.2017 had discharged the said students, who were not admitted through centralized admission process.  25 students admitted in the same college, who were admitted through the centralized admission process, were very much absorbed by the DGME in other colleges. Hence, the contention of the review petitioners that they came to know about the discharge order 21 dated 27.1.2017 issued by MCI only when they had filed a petition in the High Court in 2019 does not stand to reason.

In such scenario, the Court found it difficult to appreciate as to how the results of the students were declared for the 1st year MBBS examination, how they were admitted in the 2nd year MBBS course and how they cleared the 2nd  year MBBS examination, despite the fact that MCI had discharged the students vide order dated 27.1.2017.

Refusing to show any sympathies to students who had entered through backdoor, the Court held,

“The Notification issued by the State of Uttar Pradesh on the basis of the law laid down by this Court clearly provided that the admissions were to be done only through the centralized admission process.  Glocal Medical College in contravention of the said Notification conducted private counselling, which was not at all permissible in law. The students cannot be said to be ignorant about the Notification issued by the State of Uttar Pradesh.”

[Abdul Ahad v. Union of India, 2021 SCC OnLine SC 627, decided on 17.08.2021]


*Judgment by: Justice BR Gavai

For Review Petitioners: Senior Advocate Neeraj Kishan Kaul

For MCI: Advocate Dhawal Mohan

For State of Uttar Pradesh: Advocate Ankit Goel

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of B. V. Nagaratha and Hanchate Sanjeev Kumar, JJ., dismissed the petition being devoid of merits.

 The instant writ petition was filed under Articles 226 and 227 of the Constitution of India seeking appropriate writ or order or direction in the nature of mandamus or any other appropriate writ, order or direction be issued to the respondents to ensure that NEET Exams should not be postponed for a further period of four months from the earlier stipulated date i.e. 18-4-2021.

It was submitted by the petitioners that on account of the postponement of NEET, one day prior to the date it was to be held (it was to be held on 18-4-2021) i.e., on 17-4-2021, the doctors, aspirants for post-graduate studies, are suffering from stress, anxiety and depression as their plans to study post-graduation has been unsettled on account of procrastination. It was also submitted that the said decision to postpone the holding of NEET, a day prior to the date of Test, was not in accordance with law and the said decision is an arbitrary one and hence, the same has been assailed.

Counsel for the respondents submitted that the said decision is a policy decision which is very sound and it may not be interfered with by this Court, as it is not an arbitrary decision but having regard to the serious nature of the resurgence of COVID-19 pandemic. It was also submitted that Courts do not intervene in academic schedules and matters, which are purely academic in nature.

Learned Assistant Solicitor General submitted that the dates would be notified for holding NEET after 31st August, 2021 after giving time for preparation by the aspirants.

The Court observed that that the postponement of NEET was on account of the circumstances as they emerged and based on the views of the experts. This is not a case where there is the cancellation of NEET this year but only of postponement of the Test from April-2021 to a period subsequent to 31st August, 2021 due to “second wave” of the COVID-19 pandemic.

The Court further observed that Supreme Court declined to approve postponement of the exam last year as the pandemic was not as severe last year, the doctors including NEET aspirants were not requested to perform duties during this “second wave” of the pandemic. But, if such doctors have offered their services during the period April-July, then they would require time to prepare for the Test. Hence, the postponement of NEET will be beyond 31st August 2021.

The Court heldwe find no merit in the writ petition. Hence, it is dismissed.”[Late G.B. Kulkarni Memorial Legal Trust v.  Principal Secretary to Prime Minister of India, 2021 SCC OnLine Kar 12692, decided on 10-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioner: Mr. Vinod G.Kulkarni (party-in-person)

Cousnel for respondents: Mr. M.B.Naragund and Mr. Madhukar Desphande

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of L. Nageswara Rao* and Krishna Murari, JJ., addressed the plight of NEET students. The Bench stated,

“Decision of government not to reduce minimum marks for admission was propelled by extraneous considerations like sufficient number of Dentists being available in the country and the reasons for which students were not inclined to get admitted to BDS course which remits in the decision being unreasonable. Consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters.”

Observing the scarcity of qualified aspirants, Dental Council of India had recommended lowering of qualifying cut off percentile for admission to (Bachelor of Dental Surgery) BDS course for the academic year 2020-2021. Pursuant to which the Petitioners had submitted a representation to government seeking to lower the qualifying cut off percentile. Recommendation of the Council had been rejected by Government which led to filing of the instant petition under Article 32 of the Constitution.

Proviso to Sub-Regulation (ii) of Regulation II of the Regulations is as follows:

“Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any academic year for admission to BDS Course, the Central Government in consultation with Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only”.

Whether demand to reduce qualifying cut off was rightly rejected?

Proviso to Sub-Regulation (ii) of Regulation II had empowered government to exercise its discretion to lower minimum marks only when sufficient numbers of candidates fail to secure minimum marks. Government could not for any purpose other than the one specified in the proviso to Regulation II (5) (ii). There were three reasons given for the decision not to lower minimum marks by the state:

  • Available seats vis-à-vis eligible candidates were 1:7 and therefore there was no dearth of eligible candidates.
  • Sufficient number of Dentists in India. There was one Dentist for every 6080 persons which was better than the WHO norms of 1 : 7500.
  • Lack of keenness of students to join BDS and inability to pay exorbitantly high fees charged by private colleges

On the submission of existence of seven candidates against one seat, the Bench observed that this calculation of the State was without taking into account the fact that admissions for UG AYUSH and other UG medical courses were included in the NEET for the first time from in 2020. Total number of seats available for the academic year 2020-2021 for MBBS were 91,367, BDS were 26,949 and AYUSH were 52,720 making it a total of 1,71,036 seats. Whereas, the NEET qualified candidates were 7,71,500.

It did not appear that while arriving at decision not to lower minimum marks, the State had consulted the Council in accordance with the proviso to Sub-Regulation (ii) of the Regulation II. Hence, ratio of seats available vis-à-vis eligible students was 1 : 4.5 and not 7. Noticing the above, the Bench stated,

“Decision which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. There is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.”

The Bench concurred with the argument of the petitioners that lowering minimum marks and reducing percentile for admission to the first-year BDS course would not amount to lowering the standards of education Considering the fact that minimum marks had been reduced by the State for super speciality courses for last year and AYUSH courses for the current year, the Bench expressed,

“If reducing minimum marks amounts to lowering standards, the State would not do so for super speciality courses.”

Hence, the Bench directed that vacant seats in first year BDS course for the year 2020-2021 should be filled up from the candidates who had participated in the NEET after lowering the percentile mark by 10 percentile. The petition was disposed of with further directions to Managements of private Dental Colleges to consider reducing fee charged by them to encourage students to join the Colleges.

[Harshit Agarwal v. Union of India, 2021 SCC OnLine SC 64, decided on 08-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice L. Nageswara Rao

Appearances before the Court by

For petitioners: Senior Advocate Maninder Singh and advocate Krishna Dev Jagarlamudi

For Union of India: Additional Solicitor General Aishwarya Bhati

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has directed that that there will be no reservation in Super Specialty Medical Courses to in-service doctors for the academic year 2020-2021.

The direction reads,

“… the counselling for admission to Super Specialty Medical Courses for the academic year 2020- 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in-service doctors for the academic year 2020-2021.”

Facts considered

  • The information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020. Point 5.16 of the bulletin provided that there shall be no reservations of seats for Super Specialty DM/MCH Courses.
  • The NEET Super Specialty Examination was conducted on 15.09.2020 and the results were declared on 25.09.2020.
  • Counselling was scheduled to commence on 08.10.2020.
  • The Medical Counselling Committee issued the counselling scheme for 100 per cent All India Quota for NEET Super Specialty DM/MCH DMB 2020-2021 in which it was made clear that there shall be no reservation for Super Specialty Medical Courses.
  • The State of Tamil Nadu issued a Government Order dated 07.11.2020 by which a decision was taken to reserve 50 per cent of the Super Specialty seats in Government Medical Colleges in the State of Tamil Nadu for in-service candidates.
  • Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 provides for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses. Admittedly, the Act was not implemented for the years 2017-2019. By the impugned order, the Kerala High Court directed the concerned authorities to carry out the provisions of the Act and provide reservation to in-service Doctors. However, the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

Arguments against in-service Reservation

It was argued that the information bulletin made clear to the candidates that there shall be no reservation for admission to Super Specialty Courses. They further contended that the Rules of the game cannot be changed mid-stream and no reservation can be provided for this academic year i.e. 2020-2021 as the procedure for selections for admission to Super Specialty Medical Courses commenced a long time back.

It was also brought to Court’s notice that the 5-judge bench decision in Tamil Nadu Medical Officers Association v. Union of India2020 SCC OnLine SC 699[1] was not applicable as the information bulletin for admission to Super Specialty Courses for the academic year 2020-2021 was issued on 03.08.2020 and the judgment that was delivered on 31.08.2020, clearly stated that the judgment shall operate prospectively.

Arguments supporting in-service Reservation

It was argued that administrative inconvenience cannot be a ground to interfere with the order passed by the High Court directing implementation of reservation to in-service doctors in accordance with the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008.

Further, the Constitution Bench in its judgment in Tamil Nadu Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699 only saved the admissions which have already been made. As the admissions for the year 2020-2021 have not been completed, the said judgment has to be implemented for admissions to the academic year 2020- 2021.

What the Supreme Court said

The Court noticed that the process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. Hence,

“The Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in-service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them.”

Rejecting the submission that nobody will be prejudiced if the Government Order is given effect to, the Court said that there will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out, which is detrimental to their chances of admission.

The Court also took note of the fact that the Kerala Medical Officers Admission to Postgraduate Courses under Service Quota Act, 2008 providing for 40 per cent reservation for in-service doctors in admission to the Super Specialty Medical Courses has not been implemented for the years 2017-2019. And the State of Kerala has shown its inability to implement the said Act for admission to the Super Specialty Medical Courses for the current academic year i.e. 2020-2021.

In the State of Tamil Nadu too, no reservation for in-service Doctors was implemented since 2016.

The Court, hence, held

“As the admission process is at the final stages, we cannot permit reservation for in-service Doctors for this year.”

[Dr. Prerit Sharma v. Dr. Bilu B.S.,  2020 SCC OnLine SC 961, decided on 27.11.2020]


For appellant: Senior Advocates Dushyant Dave and Shyam Divan

For National Medical Commission: Senior Advocate Vikas Singh

For Union of India: Additional Solicitor General Sanjay Jain

For State of Kerala: Senior Advocate Jaideep Gupta

For State of Tamil Nadu: Senior Advocates C.S. Vaidhyanathan and V. Giri,

For Respondents in the Appeal arising out of SLP (C) No.13670-13672 of 2020: Senior Advocate Mr. P. Wilson

For Respondent in Appeal arising out of SLP (C) No.12891 of 2020.: Advocate George Varghese Perumpallikuttiyil

[1] The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ in Tamil Nadu Medical Officers Association v. Union of India2020 SCC OnLine SC 699 held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.
Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that
“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”
The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment. (Read more…)

COVID 19Hot Off The PressNews

Dr Harsh Vardhan, Union Minister for Health and Family Welfare today announced the Government’s decision to introduce a new category called ‘Wards of COVID Warriors’ in the guidelines for selection and nomination of candidates against Central Pool MBBS seats for the academic Year 2020-21.

Central Pool MBBS seats may be allocated for selection and nominations of the candidates from amongst the wards of “COVID Warriors”, who have lost life due to COVID 19; or died accidentally on account of COVID 19 related duty.

Reminding everyone that the definition of COVID Warrior has been laid down by Government of India while announcing the insurance package of ₹50 lakhs for them, the Minister said, “COVID Warriors are all public healthcare providers including community health workers, who may have to be in direct contact and care of COVID-19 patients and who may be at risk of being impacted by this. Private hospital staff and retired/volunteer/ local urban bodies/ contracted/ daily wage/ ad-hoc/ outsourced staff requisitioned by States/ Central hospitals/ autonomous hospitals of Central/ States/UTs, AIIMS and Institutes of National Importance (INIs)/ hospitals of Central Ministries drafted for COVID-19 related responsibilities are all included.” He added that the State/UT Government will certify the eligibility for this category.

Five (05) Central Pool MBBS seats have been reserved for this Category for the year 2020-21.

The selection of candidates will be made by the Medical Council Committee (MCC) through online application on the basis of rank obtained in the NEET-2020 conducted by National Testing Agency.


Ministry of Health and Family Welfare
[Press Release dt. 19-11-2020]
[Source: PIB]
Case BriefsHigh Courts

Madras High Court: A Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., said that a Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible. It was also stated that the protection under Article 361 of the Constitution has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly.

The High Court was hearing a petition seeking direction to the Governor to take a decision with regard to “The Tamil Nadu Admission to Under Graduate Courses in Medicines, Dentistry, Indian Medicine and Homeopathy on preferential basis to the Students of the Government Schools Bill, 2020” pending before him for assent. The Advocate General submitted before to the Court that the Constitutional Authority is in need of three to four weeks time to take a decision with regard to the Bill. It was noted that the said Bill was passed unanimously on 15-09-2020 and the same was sent for assent to the Constitutional Authority on the very same day, yet the same is pending for last two months.

It was noted by the Court that since the introduction of NEET Examination in the year 2017, so far only 14 students from the Government Schools got admission to the Medical Courses. On High Court’s posing a question with regard to the non-taking of a decision by the Constitutional Authority, the Advocate General referred Article 361(“Protection of President and Governors and Rajpramukhs“) of the Constitution of India and submitted that in the said Article, protection has been given that the Governor who is not answerable to any Court for exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.

The Court was of the view that no doubt Article 361 gives protection to the Constitutional Authority. However, in the given circumstances, a decision has been taken, taking into consideration the future of the Government School students, who are invariably from marginalized and poor sections, as soon as possible as provided under Article 200 of the Constitution of India.

Article 200 of the Constitution of India :

200. Assent to Bills.—When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

The High Court stated that, “A perusal of Article 200 – ‘Assent to Bills’, would reveal that the Constitutional Authority has to take a decision, if a Bill is presented for assent, as soon as possible.

It was also said that the protection under Article 361 “has been given by the Framers of the Constitution, with hope and trust in the Appointees that they would perform their constitutional functioning promptly and there would not be any situation, wherein they would be called for to give an explanation or they will be questioned by the Court of law.

In view of the above, the High Court concluded that, when the situation changes and present kind of situation arises, a different approach has to be taken by the Courts in the interest of the public. It is well-settled law that “Extraordinary situation requires extraordinary remedies”. When public interest requires, the High Court has to do its constitutional duties and to address the situation. However, the Court was of the opinion that such a situation would not arise to pass any order in the present matter. [S. Ramakrishnan v. State of T.N., 2020 SCC OnLine Mad 5207, decided on 29-10-2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that the Medical Council of India has no power to make any reservation for in-service candidates in Post Graduate Medical Course in States and that only States are allowed to grant the benefit of reservation of seats to in-service doctors in the National Eligibility cum Entrance Test (NEET) postgraduate degree courses.

Holding that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III, the bench observed that

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

The Court, however, specifically   observed   and   clarified   that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

KEY HIGHLIGHTS OF THE 242-PAGES LONG VERDICT

On the scope of “coordination and determination of standards” under Entry 66 List I

Entry 66 List I is a specific entry having a very limited scope and only deals with “coordination and determination of standards” in higher education. The term “coordination and determination of standards” means   laying   down   the   said standards and therefore when it comes to prescribe the standards for such institutions of higher learning, exclusive domain is given to the Union.  Further, it would not include conducting of examination etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc.

“Thus, in exercise of powers under Entry 66 List I, the Union cannot provide for anything with respect to reservation/percentage of reservation and/or even mode of admission within the State quota, which powers are conferred upon the States under Entry 25 of List III.”

On the scope of MCI’s power to frame regulations with respect to reservation

The Medical  Council   of   India which  has  been constituted   under   the   provisions   of   the   Indian Medical   Council   Act,   1956   is   the   creature   of   the statute  in  exercise  of  powers  under  Entry  66 List  I and   has   no   power   to   make   any   provision   for reservation,   more   particularly,   for   in-service  candidates  by   the   concerned  States,   in   exercise  of powers under Entry 25 List III.

Section 33 of the MCI Act does not confer any authority and/or power to the MCI to frame the regulations with respect to reservation in the medical courses, more particularly, to provide for a separate source of entry for in-service   candidates   seeking   admission   to   postgraduate   degree courses, as sought to be contended on behalf of the MCI and counsel opposing for providing for a separate source of entry for in-service candidates.

“… it cannot be said that the Medical Council of India would have any authority or jurisdiction to   frame   any   regulations   with   respect   to   reservation   and/or making special provision like providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses.”

On the validity of Regulation 9 of MCI Regulations, 2000

Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III.

“…if   it   is   held   that   Regulation   9,   more particularly, Regulation 9(IV) deals with reservation for   in-service   candidates,   in   that   case,   it   will   be ultra vires of the Indian Medical Council Act, 1956 and   it   will   be   beyond   the   legislative   competence under Entry 66 List I.”

Regulation 9 of MCI Regulations, 2000 to the extent tinkering with reservation provided by the State for in-service candidates is ultra vires on the ground that it is arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India.

On the need for in-service quota

There is a legitimate and rational basis in providing a separate channel/source of entry for in-service candidates in order to encourage them to offer their services and expertise to the State. There is a sufficient nexus with the larger goal of equalization of educational opportunities and to sufficiently prefer the doctors serving in the various hospitals run and maintained out of public funds, in the absence of which there would be serious dearth of qualified Post-graduate doctors to meet the requirements of the common public.  It is stated that the Government is facing public health crisis. The effective and competent medical treatment is not available in the rural and difficult areas.  In-service doctors who pursue higher studies would naturally serve in rural and difficult areas if such incentive in the form of reservation is provided.

“The action of the State to provide for the in-service quota is in the discharge of its positive constitutional obligations to promote and provide better health care facilities for its citizens by upgrading the qualifications of the existing in-service doctors so that the citizens may get more specialized health care facility. Such action is in discharge of its constitutional obligations as provided in Article 47 of the Constitution of India, which is the corresponding fundamental right of the citizens protected under Article 21 of the Constitution of India.”

On State’s power to provide in-service Quota

The power of the State under Entry 6, List II of Schedule VII to legislate in the subject matter of public health and hospital is exclusive. When the State provides a separate source of admission for in-service doctors as a distinct class and within the State quota and the object is laudable, the State is within its power to provide such separate source of admission in exercise of the powers under Entry 25 List III, read with Entry 6, List II.  It cannot be said that there is no nexus with the laudable object of meeting the requirement of qualified postgraduate doctors for the public health services, more particularly, in the rural, tribal and difficult areas.  As such, there is no conflict between the power of the Union and the State.

 The occupied field of Union legislation in exercise of power under Entry 66, List I is related to minimum standards of medical education and the State   is   providing the in-service quota without impinging the prescribed minimum standards.

“State is within its power and authority to provide such a preferential treatment to provide a better public health in the rural, tribal and hilly areas.”

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699, decided on 31.08.2020]

Hot Off The PressNews

Supreme Court: In a major setback to the students appearing for National Eligibility cum Entrance Test (NEET) and Joint Entrance Examination (JEE), a bench headed by Arun Mishra, J has dismissed a petition seeking the postponement of the entrance exams scheduled to be held in September 2020.
The bench observed that the career of students cannot be put under jeopardy for long.

“Life cannot be stopped. We have to move ahead with all safeguards and all… Are you (students) ready to waste one whole year?…Now, the courts are also going to open gradually for physical hearing. We also have these glass panels now,”

Solicitor General Tushar Mehta, appearing for the National Testing Agency, submitted before the Court that all the safeguards will be taken while holding the exam.

Advocate Alakh Alok Srivastava for the petitioners told the court that lakhs of students are looking to Supreme Court for relief. He said that Prime Minister also said on Independence Day that vaccine is on its way.

The petition, filed by eleven students from eleven states, contended that the decision to hold JEE (main) exam through online mode from September 1 to 6 and NEET UG-2020 through offline mode on September 13 at 161 centres across India are arbitrary, whimsical and violative of the fundamental right to life of
lakhs of affected students.

The plea said that the Institution of Chartered Accountants of India (ICAI) had cancelled the CA exams citing COVID-19 risk and remaining exams of CBSE/ICSE/ISC have also been cancelled. It said that the Common Law Admission Entrance Test (CLAT) and the National Institute of Open School exams have also been postponed.

“Lakhs of young students are likely to appear in the aforesaid JEE (Main) April2020 and NEET UG-2020 Exams in the month of September 2020. Meanwhile, COVID-19 cases are increasing in India at an alarming rate. The deadly pandemic COVID-19 has already affected about 20 Lakh people in India and the situation is worsening by every passing day,”

It further states that conducting the aforesaid examination across India at such perilous time is nothing else but putting lives of lakhs of young student at utmost risk and danger of disease and death.


Source: ANI

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and Debabrata Dash, J. rejected the prayer of the petitioner on account of concealment of material facts.

The facts of the case are that the petitioner after completing her MBBS got herself registered under the Odisha Council of Medical Registration, Bhubaneshwar and joined as a tutor on contract basis at PHC (N) Biridi from 2014-2015 and joined as a tutor on contract basis in SLNMCH, Koraput from 2017- 2019 and later she joined in regular service in 2019 at Gumma Gajpati where she got transferred again to SLNMCH, Koraput. Thereafter the petitioner availed leave for September 2019 to January 2020 and resumed duty on 21-01-2020.

Counsel P. R Singh , L.N Rayatsingh, A.K Rout and S. K Dwivedy on behalf of the petitioners submitted that the petitioner applied for NEET PG 2020 as an in service candidate and was declared successful and as she is an in service candidate she deserves to get all the benefits with regards to extra weightage, percentage increase benefit etc. It was further submitted that as she verified her documents on time but was not able to present her service certificate on time due to lockdown she could not avail the benefits. It was prayed that she be allowed to appear for second round of counseling as an in service candidate only.

Counsel M.S Sahoo and R.C. Mohanty on behalf of the respondents stated that the petitioner applied for the course as a direct candidate and not as an in service candidate. He also submitted that the petitioner has concealed material facts in order to gain in service benefits which are bad in the eyes of law.

Court on hearing both the parties held that as the petitioner appeared for counseling in the first phase as a direct candidate the prayer to allow her to appear as an in service candidate for second round of counseling stands unjustified. It was further held that as the petitioner has not approached the court with clean hands which is the underlying principle for fair adjudication; the petitioner is not entitled to avail any kind of in service candidate benefits.

In view of the above the petition stands disposed off.[Dr Shams Jahan v State of Odisha, 2020 SCC OnLine Ori 543 , decided on 24-07-2020]