Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of Dr Vineet Kothari and Pushpa Sathyanarayana, JJ., addressed a petition challenging the government order issuing guidelines with regard to home isolation, hospital/institutional quarantine in the wake of COVID-19 pandemic.

Petition was filed to direct respondent 1 to ensure that all persons tested COVID-19 are only under hospital or institutional quarantine.

Petition was filed to challenge the notification issued by Department of Health and Family Welfare, vide GO Ms No. 206, dated 4th May, 2020 where State Government had issued guidelines in the form of the said Government Order about home isolation, hospital/institutional quarantine for COVID-19.

Bench on hearing the arguments of the Counsels stated that they are satisfied by the Government Order issued and no interference of the Court is called for as the said Order was passed taking into account the opinion of experts in the field as to how to ascertain a patient as pre-symptomatic or asymptomatic and considering the State infrastructure available, whether home quarantine is to be allowed or not.

Hence, in Court’s opinion, the said matter is not be considered by a Court of Law as its a policy decision.

Thus the writ petition stands dismissed. [India Awake for Transparency v. Secretary, Department of Health and Family Welfare, Govt. of T.N., 2020 SCC OnLine Mad 982  , decided on 12-05-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and C. Hari Shankar, J. dismissed a writ petition that sought modification of the Order dated 17-4-2020 issued by the Directorate of Education, Delhi (“DoE”), and direction to the schools not to charge the tuition fees from the students keeping in view the present situation of COVID 19 at least for the lockdown period in the interest of justice.

Backdrop & issue

Notably, in its Order dated 17-4-2020, the DoE took stock of the emergent situation that has arisen as a result of the COVID-19 pandemic, as well as of the precautionary and restrictive measures imposed, by the Central and State government, to contain its spread, including the imposition of lockdown. While appreciating the efforts of private unaided schools in providing online education to students, the DoE took note of certain malpractices indulged in by some schools and it issued certain directions. Of these, the petitioner claimed to be aggrieved by the first direction whereby schools have been interdicted from charging any fee, except tuition fee, from parents. The petitioner complains against this exception. The writ petition, therefore, prayed that this exception be done away with, and the impugned Order dated 17-4-2020, be consequently modified, by granting complete exemption from payment of any fee, including tuition fee, at least for the period during which the presently existing lockdown continues to be in place. In the alternative, the writ petition prayed that the impugned Order dated 17-4-2020, be modified to the extent that tuition fees be charged “after an appropriate and reasonable time from the reopening of the schools”.

Decision & discussion

Rule 165 of Delhi School Education Rules

Dr N. Pradeep Sharma, Advocate for the petitioner, relied on the first proviso of Rule 165 of the Delhi School Education Rules, 1973, which, in a case in which the school is closed on the 10th day of the month (by which date fees are payable), defers the requirement of payment of fees to the date following the 10th day on which the school reopens. Schools, being presently closed, the petitioner sought to rely on this proviso to submit that tuition fees cannot be charged by schools, during the period of such closure.

Disagreeing, the High Court was of the opinion that so long as education is being imparted online, and students are availing the benefit thereof, schools cannot be treated as “closed”, so as to disentitle them from charging tuition fees. It was observed that ex facie, the first proviso merely defers the stage of payment, of school fees, in such cases, to the appropriate time, when such payment would become possible, and no more. Rule 165 does not deal with the chargeability of tuition fees, but only with the payability thereof. The Court held:

“Rule 165 cannot be pressed into service to seek exemption, from the requirement of payment of tuition fees, for the period during which the schools remain physically closed, and are imparting education through online platforms. Students would be mandatorily required to pay tuition fees during this period, and, in so requiring, we do not find the impugned Order, dated 17th April, 2020, of the DoE, deserving of interference in any manner.” 

Direction re financial hardship clause

Refuting the contention of the petitioner concerning the grounds of financial hardship, Ramesh Singh, Senior Standing Counsel for DoE, submitted that the impugned Order dated 17-4-2020, itself prohibits schools from denying ID and password, to students, for obtaining access to online learning platforms, merely because, “owing to financial crisis arising out of closure of business activities in the ongoing lockdown condition”, the parents of such students are unable to pay school fees. 

As per the High Court this is a wholesome provision. However, its misuse is to be checked. The Court directed that:

“It would be necessary for parents, seeking the benefit of this relief, to establish, to the satisfaction of the school, or the DoE, that, owing to the lockdown, they are, in fact, financially incapacitated from paying school fees.”

Policy decision & ambit of issuing mandamus

Dr Sharma, for the petitioner, then relied on the residual clause of the guidelines framed by the Central Government under the Disaster Management Act and submitted that “necessary relief” in the form of exemption from payment of tuition fees may be directed to be provided. According to the Court, the contention was totally misconceived. It is not for the High Court to arrive at a policy decision, regarding the relief that is to be provided to persons affected by any disaster including the COVID-19 epidemic.

Dr. Sharma further submitted that unaided schools were, in all cases, run by trusts or societies, and, instead of charging fees from students, schools should, during the period of COVID lockdown, source their expenses from the monies available with their parent trusts, or societies. Outrightly rejecting the submission, the Court said:

“It is not possible for this Court to issue any mandamus, directing unaided schools – who, it is trite, received no financial aid from the executive and are, therefore, dependent on fees for their expenses – to delve into the monies available with their parent trusts, or societies, for defraying the expenses involved in payment of salaries, maintenance of their establishment and imparting of online curricular education.”

The Court was of the opinion that the impugned Order dated 17-4-2020 issued by the DoE strikes correct balance between the legitimate concerns of the institutions, and of parents/students, even while safeguarding the interests of parents who may find themselves in impecunious circumstances, owing to the lockdown presently in place, or due to closure of their businesses/establishments. The writ petition was accordingly dismissed. [Naresh Kumar v. Director of Education, WP(C) No. 2993, decided on 24-4-2020] 

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. while addressing a petition with regard to release of information of people who contracted COVID-19 at Nizamuddin, Delhi,  stated that,

It is a policy decision and Court cannot interfere in the same.

The present petition was filed seeking direction to respondent 2 to provide complete information to respondent 1 and National Executive Committee constituted under the provisions of the Disaster Management Act, 2005 relating to foreign nationals as well as individuals of State of Karnataka who attended Nizamuddin gathering and disbursed from the said gathering.

State Government’s submission states that it has taken steps to trace the Foreign and Indian Nationals who attended the religious ceremony at Nizamuddin in Delhi and further steps to quarantine them have been taken.

With regard to furnishing the information of the Foreign and Indian Nationals who attended the religious ceremony at Nizamuddin in Delhi, Centre and State have been periodically releasing the number of person who have been found to be positive and negative along with the number of cases that have been recovered.

Further, the Bench stated that,

“State Government or Central Government will have to take a decision on the question whether specific information as regards particular persons who have allegedly contacted corona virus at a particular place should be made public or not. It is a matter of policy.”

In view of the above, petition is disposed of. [Girish Bharadwaj v. State of Karnataka, 2020 SCC OnLine Kar 445 , decided on 21-04-2020]

Case BriefsSupreme Court

Supreme Court: Holding that the decision taken by the Union of India not to make appointments to the Indian Police Service (IPS) pursuant to the Limited Competitive Examination (LCE) which took place from 20.05.2012 to 22.05.2012, is legal and valid, the 3-judge bench of Madan B. Lokur, Kurian Joseph and Deepak Gupta, JJ said:

“the decision to scrap the LCE recruitment has been taken in the larger public interest. The decision is definitely not mala fide. It is not actuated by extraneous reasons.”

The reasons given the Government to support it’s decision were:

  1. percentage of vacancies has gone down;
  2. the selection process has been delayed by many years which will mean that the persons selected will be at least 5 years older than as expected;
  3. many petitions are still pending and the matter has not been finally decided, which could lead to further delay; and
  4. it is apprehended that there would be a surfeit of litigation between candidates, if any, appointed through LCE and those who are recruited by direct recruitment or promotion during the years 2012 to 2018.

The Court noticed that it is the combined effect of all the grounds which will have to be taken into consideration. There is no manner of doubt that it was expected that the result would be declared in the year 2013 and the officers would be sent for training in the same year.

The Court said:

“The officers, who may have been selected in the year 2013 at the upper age limit of 35 years or 36 years would now be 5 years older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their induction or recruitment in the IPS is delayed by more than 5 years. When the Government laid down a policy that upper age limit was 35 years, it must have had some reason for fixing the upper age limit. That purpose is now defeated.”

The Court also said that if the Union is compelled to make the appointments, this will lead to a plethora of litigation where the persons recruited to the IPS between 2013 and 2018 will claim seniority over the persons, who appear in the LCE. It said that such litigation would not be in public good and will achieve no higher purpose.

The Court, hence, held:

“When we examine the decision taken by the Central Government in a holistic manner, we have no doubt that the decision to scrap the LCE recruitment has been taken in the larger public interest.”

[Lt. CDR M. Ramesh v. Union of India, 2018 SCC OnLine SC 393, decided on 17.04.2018]

Case BriefsSupreme Court

Supreme Court: In the appeal against the order of the High Court where it refused to issue mandamus to the Central Government directing the Central Government to issue a notification under Section 11C of the Central Excise Act, 1944 to the effect that duty payable by the appellant on goods manufactured by it shall not be paid, the Court said that where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to the relevant considerations, or where it is not guided by any norms which are relevant to the object to be achieved.

The appellants had contended that excise duty on the goods manufactured by the appellant i.e. Rosin/Turpentine, is, otherwise, payable in law, however, insofar as the history of payment of excise on these goods is concerned, record shows that vide notification No. 179/77-CE dated 18.06.1977, the Central Government had exempted all goods, falling under Item No.68 of erstwhile First Schedule to the Central Government Excise and Salt Act, 1944 in or relation to the manufacturing of such goods where no process is ordinarily carried on with the aid of power, from the whole of the duty of excise leviable thereon. Hence, recovering excise duty from the appellants violates their rights under Article 14 or Article 19(1)(g) of the Constitution.

Rejecting the said contention, the Court held that it would neither be a case of discrimination nor it can be said that the appellants have any right under Article 14 or Article 19(1)(g) of the Constitution which has been violated by non-issuance of notification under Section 11C of the Act. Once the appellant accepts that in law it was liable to pay the duty, even if some of the units have been able to escape payment of duty for certain reasons, the appellant cannot say that no duty should be recovered from it by invoking Article 14 of the Constitution. It is well established that the equality clause enshrined in Article 14 of the Constitution is a positive concept and cannot be applied in the negative.

The Bench of Dr. A.K. Sikri and Ashok Bhushan, said that when ‘power’ is given to the Central Government to issue a notification to the effect not to recover duty of excise or recover lesser duty than what is normally payable under the Act, for deciding whether to issue such a Notification or not, there may be various considerations in the mind of the Government. Merely because conditions laid in the said provisions are satisfied, would not be a reason to necessarily issue such a notification. It is purely a policy matter. [Mangalam Organics Ltd. v. Union of India, 2017 SCC OnLine SC 461, decided on 24.04.2017]