Case BriefsSupreme Court

Supreme Court: The bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ has held that the Courts cannot issue mandamus to frame policy.

The Court was hearing the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic.

Also read: COVID 19 a “lame excuse”: Here’s why SC refused to allow extra attempt for UPSC CSE to last attemptees

It was argued before the Court that there is always a change in the upper age limit and number of attempts in different spell and that in the year 2015, the Union of India allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011.

However, as pointed out by the Union of India, there was a substantial change in the pattern of Civil Service (Preliminary) Examination 2011, in the given circumstances, it was considered appropriate to grant one more attempt in Civil Service Examination, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts.

The Court, however, noticed that the said instance cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Article 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance.

“Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.”

It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.  The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

“Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for  the reason that there was  a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.”

[Rachna v. Union of India, WRIT PETITION (CIVIL) NO(s). 1410 OF 2020, decided on 24.02.2021]


*Judgment by: Justice Ajay Rastogi

Appearances in the matter by

For petitioners: Senior Advocate Shyam Divan,  

For Respondents: Additional Solicitor General S.V.   Raju and advocate Naresh Kaushik

For intervenors: Senior Advocates P.V. Narasimha and Pallav Shishodia

https://www.scconline.com/blog/post/2021/02/24/covid-19-a-lame-excuse-to-take-extra-attempt-to-clear-civil-service-examination-heres-why-sc-refused-to-allow-extra-attempt-for-upse-cse-to-last-attemptees/

Case BriefsSupreme Court

Supreme Court: In the case where the last attemptees of the UPSC Civil Services (Preliminary) Examination, 2020 had sought an extra attempt to clear the exam in the wake of the COVID-19 pandemic, the bench of Justice AM Khanwilkar, Indu Malhotra and Ajay Rastogi*, JJ has refused the plea and has held that allowing extra attempt in such a case would set a precedent and also have cascading effect on examinations in other streams.

“The data furnished to this Court by the Commission clearly indicate that various selections have been held by the Commission for Central Services in the year 2020 during COVID-19 pandemic and selections must have been held by State Commissions and other recruiting agencies, if this Court shows indulgence to few who had participated in the Examination 2020, it will set down a precedent and also have cascading effect on examinations in other streams, for which we are dissuaded to exercise plenary powers under Article 142 of the Constitution.”

The Court, however, left it to the Government to exercise its discretion in meeting out the nature of difficulties, if come across in future in dealing with the situation, if required.

What was being claimed?

The petitioners were unable to qualify in their last attempt in the Civil Services (Preliminary) Examination, 2020, held on 4th October 2020 and approached the Court seeking mandamus to the Government to extend one additional attempt to them as they are being barred from attempting the examination in future on account of exhausting of available attempts or on account of age bar subsequent to Examination 2020.

It was argued before the Court that,

“the sudden and strict lockdown due to unprecedented pandemic in March, 2020 had made a  large disruption in the life of the common man and the measures adopted led to difficulties and impediments in the preparation of the Examination 2020 for many aspirants and the Government failed to take any policy decision for the last attemptees before   holding Examination 2020 to enable them to take an appropriate/suitable decision and noticing precedence from the earlier policy of 1st respondent to grant an extra attempt to last attemptees in the event causing widespread hardships left with no choice except to appear in the examination even though they did not have an adequate opportunity and infrastructure and they were left out blinded with uncertainty.”

Why the Court refused the plea of the petitioners?

The Court noticed that what was being prayed “in the first blush appears to be attractive but it lacks legal strength and foundation for various reasons.”

Adequate opportunity

The scheme of Rules 2020 clearly stipulate that the entry age to participate in this competition is 21 years and the exit age for general candidates is 32 years and at least each candidate gets minimum 11 years to participate in the competitive examination, i.e., CSE, in the instant case. For those who claim reservation vertical/ horizontal, they have numerous/unlimited chances and are also entitled for age relaxations.

No discretion with authority to grant relaxations

It may further be noticed that under Rule 6 of Rules 2020, there is a clear mandate that age limit prescribed in no case can be relaxed subject to the relaxations which have been enumerated for various categories. So far as the candidates who appear in the general category and have crossed the age of 32 years, no discretion is left with the authority to grant any relaxation in upper age limit prescribed for the candidates appeared in the instant Examination 2020.

No change in syllabus and additional time to prepare

The syllabus of the preliminary examination has not changed since 2015 and after the Rules 2020 were notified, the notice for the Examination 2020 was published on 12th February 2020 and the scheduled date of the examination was fixed on 31st May, 2020 but because of the unprecedented situation of Covid¬19 pandemic, the Commission took a policy decision to defer the examination and in the changed situation, after there was a relaxation in the lockdown, ultimately on 5th June, 2020 took a decision to hold the examination on 4th October 2020 and, therefore, instead of three   months, the candidates got additional five months (i.e. eight months) to which one ordinarily can  prepare for appearing in  the examination  in terms of the scheme of Rules 2020.

Already a “second chance” given to candidates

Under the scheme of Rules 2020, mere filling up of the form is not sufficient to avail an attempt.  If someone appeared in either of the paper of the preliminary examination, that was considered to be an attempt availed by the candidate and, in the given situation, after the application form was filled, the candidates who wanted to withdraw their application form at the later stage because of the Covid-19 pandemic, the commission took a policy decision to open the window for the second time, which in the ordinary course is not available under the scheme of rules, for the candidates who intended to withdraw their application from 1st August, 2020 to 8th August, 2020.

“Since the   examination was scheduled for 4th October, 2020 only those candidates were left who were mentally prepared to appear and willing to avail an opportunity of appearing in the Examination 2020 and after appearing in the examination, when they could not qualify, it has given a way to the present litigation on the specious ground of Covid-19 pandemic that they were unable to effectively participate in the process of selection which has been initiated by the Commission in holding preliminary examination on 4th October, 2020.”

No special case of petitioners than those who have appeared in various examinations in the year 2020

A  large number of candidates appeared in the various examinations in the year 2020 during COVID-19 pandemic and everyone must have faced some constraints/impediments/inconvenience in one way or the other,

“… merely because the present petitioners made a complaint to this Court, cannot be taken into isolation for the purpose of seeking additional chance/attempt in the backdrop of Covid-19 pandemic, which has been faced by not only the candidates appeared in Examination 2020 but by the candidates appeared in the various examinations/recruitment tests held by the State Commissions or by other recruiting agencies and by and large, every member of the society in one way or the other but that does not in any manner give legitimate right to the petitioners to claim additional benefit/attempt which is otherwise not permissible under the scheme of Rules 2020.”

Can the Court issue mandamus to frame policy?

It was argued before the Court that there is always a change in the upper age limit and number of attempts in different spell and that in the year 2015, the Union of India allowed one more attempt in the Civil Service Examination 2015 for the candidates who appeared in CSE 2011.

However, as pointed out by the Union of India, there was a substantial change in the pattern of   Civil Service (Preliminary) Examination 2011, in the given circumstances, it was considered appropriate to grant one more attempt in Civil Service Examination, 2015 to such candidates who appeared in Civil Service Examination, 2011 either due to reaching upper age limit or due to exhausting of number of attempts.

The Court, however, noticed that the said instance cannot be made to be the basis or a foundation for the petitioners to site as a precedent in claiming to seek one additional attempt as a matter of right which is not permissible under the scheme of Rules 2020 or with the aid of Article 14 of the Constitution to take a call in meeting out the difficulties which have been faced as alleged in the given circumstance.

“Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different.”

It is within the realm of the executive to take a policy decision based on the   prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate. The Courts do interpret the laws and in such an interpretation, certain creative process is involved. The Courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for.  The Court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.

“Merely because as a matter of policy, if the 1st respondent has granted relaxation in the past for  the reason that there was  a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the 1st respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right.”

[Rachna v. Union of India, WRIT PETITION (CIVIL) NO(s). 1410 OF 2020, decided on 24.02.2021]


*Judgment by: Justice Ajay Rastogi

Appearances in the matter by

For petitioners: Senior Advocate Shyam Divan,  

For Respondents: Additional Solicitor General S.V.   Raju and advocate Naresh Kaushik

For intervenors: Senior Advocates P.V. Narasimha and Pallav Shishodia

Case BriefsHigh Courts

Calcutta High Court: Shekhar B. Saraf, J., in the instant matter after a precedential examination with regard to judicial inquiry, laid down a few principles for the same.

Petitioners sought command towards Secretary of the West Bengal Central School Service Commission – Respondent 4 to allow petitioners to add their enhanced training qualifications, as prescribed in the Recruitment Rules, 2016 in the process of selection for appointment to the post of Assistant Teacher in Upper Primary Level of Schools in pursuance of the Appointment Notification dated September 23, 2016, as well as to consider their candidatures as trained candidates as per verifications to be submitted online in terms of the latest verification notification dated December 28, 2020.

Analysis, Law and Decision

Bench stated that in Aktarul Islam Kayal v. State of West Bengal, W.P.A. No. 9597 of 2019, Court did not set aside the advertisement published on September 23, 2016, and Commission was directed to hold a fresh selection of all candidates who were found to be eligible under Rule 12(2).

The above position clearly prevents the court from any intervention with regard to such advertisement.

Further, the fresh cause of action that arose was with regard to enhanced qualifications to be considered due to the fact that the selection process had been postponed by 4 years.

Supreme Court’s decision in Shankar K. Mandal v. State of Bihar, (2003) 9 SCC 519 which had also consciously considered the decision in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, clearly reiterated the point of law that when there is no cut-off date provided for in the Rules, then such date shall be as appointed for the purpose in the advertisement/notification inviting such applications.

State or its constituent statutory bodies as the Commission have a right to fix a cut-off date in the advertisement for the purposes of such selection process. Furthermore, the cut-off date has to be adhered to and applied consistently for all persons and the same cannot be ignored for a particular person.

Bench expressed that one cannot lose sight of the fact that the Courts in this country including High Courts, are institutions tasked to adjudicate and not to legislate.

In the Supreme Court decision of Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356, Court had reiterated the scope of the powers of a High Court exercising its powers under Article 226 of the Constitution of India.

Moving on to the precedents of the Supreme Court that prescribe non-interference in policy decisions of the State under this Court’s judicial review powers, the Supreme Court had held in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 SCC 337 as follows:

“11. The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or [is violative of] the fundamental rights of the citizen or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere.”

Supreme Court in Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, dealt with the entrenched scope of judicial review concerning governmental policy.

3-Judge Bench headed by the then Chief Justice T.S. Thakur in Centre for Public Interest Litigation v. Union of India, (2016) 6 SCC 408, extensively discussed the scope of judicial interference in government policies.

Based on the above precedential examination, the following distinct principles emerged:

  • The scope of judicial enquiry apropos policy decisions/matters of the State is restricted to the “sole dimension” of whether such policy decision/matter is either :

i.against any statutory provision;
ii. violative of any fundamental rights of a citizen;

iii. in the teeth of any Constitutional provision;

iv. manifestly arbitrary/discriminatory;
v. based on irrelevant consideration.

  • Only the ‘legality’ of the policy decision, and not the wisdom or soundness of such decision can be a subject matter fir for judicial review under Article 226 of the Constitution of India.
  • Constitutional Courts, such as this Court ought to be hesitant in interfering in matters of such policy or the day-to-day functioning of any departments of the government or any statutory bodies.
  • Negligible interference in policy decisions when such decisions are the outcome of deliberations of technical experts as Courts lack the expertise to determine the basis/factors based on which such decisions might have been taken. This is also inclusive of “economic policies”.

In view of the above discussion, Bench stated that the policy decision of the Commission reflected through its initial notification/advertisement dated September 23, 2016, as a statutory body, in the present case does not touch the realm of arbitrariness and accordingly, no interference is called for.

Hence, Court doesn’t need to mould such advertisement to allow a change in the circumstances that may have taken place with regard to the enhanced qualifications of the writ petitioners. Attempt by this Court to allow the same would result in an unfair treatment for those who did not enhance their qualification and are not present before this Court, not to mention taking an erroneous step in encroaching into the domain of the executive branch of the government.

Therefore, the batch of writ petition was dismissed. [Subhasis Negel v. State of West Bengal, 2021 SCC OnLine Cal 194, decided on 19-01-2021]

Case BriefsHigh Courts

Madras High Court: A Division Bench of P.N.Prakash and B. Pugalendhi, JJ., issued directions in regard to the procedure to be followed while transferring the Custodial Death matter of “Jeyaraj and Bennix” to CBI.

In the present petition, petitioner has sought direction to respondent 1 to submit a report on the death of Bennix and Jeyaraj or pass any other order/direction in the present circumstances of the matter and thus render justice.

K. Chellapandian, Additional Advocate General submitted that the State Government intends to transfer the investigation of Sathankulam case to the Central Bureau of Investigation after getting formal nod of the Court.

Bench for the above, stated that with regard to transfer or not to transfer the case to C.B.I, it is a policy decision of the State Government and thus the same will be governed by the Delhi Special Police Establishment Act, 1946.

Court further issued the following directions on the premise that the case is likely to be transferred to the CBI:

  • Registrar (Judicial), Madurai Bench of Madras High Court, shall take a photocopy of the preliminary post-mortem certificates and certify them and keep them in safe custody and send the original post-mortem certificates in a sealed cover to the learned Chief Judicial Magistrate, Tuticorin, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I.
  • Judicial Magistrate No.I, Kovilpatti, shall send a copy of his report to this Court in a sealed cover and keep the original report with him in safe custody and hand over the same to the Investigating Officer of the C.B.I.
  • Deputy Superintendent of Police, Kovilpatti Range, shall hand over the Case Diaries in Kovilpatti East P.S. Cr. Nos.649 and 650 of 2020, to the learned Chief Judicial Magistrate, Tuticorin, for safe custody, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I.
  • Though the accused in Sathankulam P.S. Cr. No.312 of 2020, viz., Jeyaraj and Bennix, are no more, the Superintendent of Police, Tuticorin District, shall hand over the Case Diary and other related records in Sathankulam P.S. Cr. No.312 of 2020 to the learned Chief Judicial Magistrate, Tuticorin, who, in turn, shall hand over the same to the Investigating Officer of the C.B.I., as those records will aid the C.B.I. Investigation.

Court directed the District Collector, Tuticorin to depute Revenue Officers to the Sathankulam Police Station, for the purpose of preserving the clue materials. 

Assistant Director of Mobile Forensic Science Laboratory, Tuticorin, directed to immediately go the Sathankulam Police Station, to collect the clue materials and assist the Judicial Magistrate No.I, Kovilpatti.

Matter to be listed today, i.e. 30-06-2020. [Registrar (Judicial) Madurai Bench of Madras High Court v. State of Tamil Nadu, 2020 SCC OnLine Mad 1249 , decided on 29-06-2020]


Also read:

TN Custodial Deaths | Madras HC passes slew of directions for conducting of enquiry by the Judicial Magistrate in the brutal killing of father-son duo

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Hima Kohli and Subramonium Prasad, JJ. while dismissing a petition that challenged the MHA Notification of phased reopening of the country after nationwide lockdown, imposed a cost of Rs 20,000 due to wasting judicial time.

Petitioner’s Challenge; Unlock-1

Petitioner while challenging the MHA Guidelines on phased reopening of the country, he states that it would result into rampant spread of COVID-19.

The impugned notification will deprive citizens of their basic fundamental rights such as life and it ignores the health of its citizens by exposing them to the threat of COVID-19.

He adds to his contentions that, it Government has driven only by economic considerations at the cost of people’s lives.

Judicial Notice

Bench states that it can take judicial notice of the fact that the lockdown resulted into loss of jobs, forced people to walk for considerable distance and stand in long queues at food distribution centres to have two square meals a day.

Economic situation of the country took a terrible hit. Economists have also forecasted that Indian economy will shrink as a result of the steps taken to contain Corona virus pandemic.

Series of orders were passed by the Government to tackle the situation and ensure minimum hardship to the people.

Court can also take judicial notice of the fact that world over, the trend is now to reduce the restrictions which were imposed due to lockdown and to return to normal life.

In order to ensure a proper balance between containing the spread of COVID-19 pandemic and at the same time make certain that people are not forced to starvation the Government has issued the impugned order.

Re-opening has been directed in a phased manner and is not a decision that appears to have been taken in haste.

Government if finds that the rate of infections is going up, they can always review their decision and impose curbs accordingly.

Courts cannot interfere with the policy either on the ground that it is erroneous or on the ground that a better or a wiser alternative is available.

Petitioner has failed to show how the impugned order is arbitrary or is based on such irrelevant consideration that it deserves to be struck down.

In Court’s opinion, the present petition has only been filed to gain publicity.

Dictum of guidelines as laid down in the Supreme Court’s Judgment of State of Uttaranchal v. Balwant Singh Chauful, (2010) 3 SCC 402, has also not been followed in the present matter.

Bench further stated that during the course of hearing, petitioner was given warning that if he presses the petition, costs will be imposed, despite which the petitioners’ counsel continued addressing the arguments and wasting the judicial time.

Thus, cost of Rs 20,000 have been imposed on the petitioner with the dismissal of his petition.[Arjun Aggarwal v. UOI, 2020 SCC OnLine Del 642 , decided on 12-06-2020]


Also Read:

Breaking | Lockdown to continue in Containment Zones till 30th June, 2020; Phased reopening of areas outside Containment Zones | Places of worship, Malls, Hotels to re-open?

MHA Guidelines

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., while addressing a Public Interest Litigation, held that,

“fixing of the fare is a complex phenomenon and a decision to be taken by the Government. It is a policy decision and this Court is not inclined to interfere in this policy decision.”

Present Public Interest Litigation was preferred challenging the minimum fares which are fixed by Ministry of Civil Aviation vide its 21st May, 2020 Order.

Petitioners Counsel submitted that the difference in fare prices will lead to fixation of prices by the cartel of the airlines.

Bench while disagreeing with petitioners contention stated that, in the present circumstances when various restrictions have been placed on the airline operations, and maximum limit for air fare is given by the Government, the minimum fare is also prescribed so as to strike a balance between the passengers as well as the airlines agency

Exercise of tariff fixation, and economic matters in general, are issues on which the writ court would generally refrain from exercising jurisdiction, unless found to be totally arbitrary or unreasonable.

Further the Court observed that it ought to be kept in mind that this fixation of minimum and maximum fares is for the journey to be performed only for essential purposes. 

Section 8B(1) of the Aircraft Act, 1934 specifically clothes the Central Government with the power to take necessary measures to minimise the possible danger to public health in the event of outbreak of any dangerous epidemic.

Thus, in view of the COVID19 pandemic, power exercised by respondents cannot be said to be arbitrary or unreasonable.

Ministry of Civil Aviation’s order as mentioned above is only a stop gap arrangement for which present PIL is not tenable.

Lastly the Court concluded it’s  Order by stating that, “problem being faced by everyone during this pandemic situation is such a unique phenomenon that requires experimental solutions. There cannot be any mathematical solution for a problem like this.”

In view of the above observations, petition was disposed of. [Veer Vikrant Chauhan v. UOI, 2020 SCC OnLine Del 627, decided on 04-06-2020]

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]