Case BriefsHigh Courts

Calcutta High Court: Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

Petitioner was the operator of Kosi Passengers Ferry Ghat. The lease period of the petitioner had been ended on 31-03-2022. The petitioner submitted that until ferry ghat was settled by way of an open tender, the petitioner must be allowed to operate.

The Court found that the rules with regard to the settlement of the ferry ghat and the circulars issued in this behalf did not permit continuation after expiry of the lease.  The Court clarified that the authority can make a stop-gap arrangement under emergent situation but Court sitting in judicial review under Article 226 of the Constitution of India, cannot direct the authorities to allow the petitioner to operate until the open tender is finalised.

Petitioner also submitted that the Pradhan did not have any right to ask the petitioner to hand over possession of the concerned ferry ghat as the water body over which the ferry services were carried on, spread over more than 5 acres and such settlement cannot be made by the concerned Gram Panchayat.

Advocate appearing on behalf of the Pradhan, submitted that the Gram Panchayat had approached the Block Development Officer to permit a public auction of the said ferry ghat. However, he submitted that no decision had been taken with regard to operation of the ferry ghat in the interim period.

Senior Government Advocate submitted that the ferry ghat was settled in favour of the petitioner by the concerned Gram Panchayat, which meant that the area of the water body must not have exceeded 5 acres.

The Court was of the view that the panchayat authorities themselves, had decided that the ferry ghat should be settled by public auction, such a policy decision cannot be interfered with under Article 226 of the Constitution of India. Transparency and maximisation of the revenue by allowing all eligible persons to participate in such tender is the correct method. The Court believed that it does not have any authority to either set aside the auction or to hold the policy of the authority to be bad in law, for the following reasons:

a) Judicial review of an administrative decision is permitted only when the decision making authority does not act in accordance with law or acts arbitrarily and with mala fide intentions relying on the judgment of Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651 where principles with regard to judicial review of administrative action were laid down.

b) The auction notice has been issued as a policy decision and the court must refrain from interfering with the policies of the Government. There are no allegations of unreasonableness, arbitrariness and favouritism. The petitioner was himself awarded the settlement through a public auction which was held when the pandemic was in the rise relying on the decision in Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737 where it was made clear that it was a settled law that policy decisions of the State were not to be disturbed unless they were found to be grossly arbitrary or irrational.

c) The idea of open auction is to ensure maximization of revenue and the panchayat samity cannot be faulted for having taken a policy decision to go for open auction when the pandemic situation has improved considerably and normalcy has resumed in every aspect of life.

The Court finally relying on Goa Foundation v. Sesa Sterlite Ltd., (2018) 4 SCC 218 and Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1  held that the panchayat authorities have decided to go for a public auction, the competent authority under the law, shall go for a public auction, at the earliest, and all eligible bidders including the petitioner shall be entitled to participate. Prayer for extension of the lease of the petitioner during the stop gap period could not be granted by the court.[Azizur Rahaman v. State of West Bengal,  2022 SCC OnLine Cal 921, decided on 13-04-2021]


Mr Gazi Faruque Hossain,Mr Debasish Kundu, Ms Priyanka Mondal: for the petitioner

Mr Lalit Mohan Mahata,Mr Prasanta Behari Mahata: for the State

Mr Sufi Kamal: for the respondent 8


Suchita Shukla, Editorial Assistant ahs reported this brief.

Case BriefsSupreme Court

Supreme Court: 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.

The Court was deciding the appeal against the Punjab and Haryana High Court verdict where the High Court had directed the State to issue a fresh notification providing for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riots affected persons in all private unaided nonminority Medical/Dental institutions in the State of Punjab and had further directed that the said reservation/quota shall apply to management quota seats as well and further directed that the fresh notification shall also provide for a sports quota of 3% in Government Medical/Dental Colleges.

The State of Punjab framed its Sports Policy in the year 2018 which provided that 3% reservation in admissions will be provided for graded sports persons. However, by order dated 25.07.2019, a conscious decision was taken by the Government of Punjab to provide 1% reservation for sports persons. The said order was passed taking into consideration Clause 10 of the Sporty Policy, 2018.

The Court noticed that while it was true that as per clause 8.11(v), 3% reservation for sports persons has been provided, however, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sports persons other than 3%. Also, the order has been issued and 1% reservation/quota for sports persons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the State Government to provide for only 1% reservation/quota for sports persons.

The Court, hence, held that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government.

“The High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India.”

Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges was found to be unsustainable and was hence, set aside.

[State of Punjab v. Anshika Goyal, 2022 SCC OnLine SC 86, decided on 25.01.2022]

*Judgment by: Justice MR Shah

Counsels

For State: Senior Advocate Meenakshi Arora

For writ petitioners: Senior Advocate P.S. Patwalia

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta J. allowed the petition and decided that the school will be converted to English medium subject to the decision taken by SDMC by majority of its members.

Background

The facts of the case are such that a school named Shri Hari Singh Sr. Sec. School, Pilwa has been functioning in village Pilwa since 1980. The school has been catering to the educational needs of about 600 children from all sects including girls residing in such village and nearby villages. The medium of instruction in the school is ‘Hindi’ since its inception. The petitioner 1 is the School Development Management Committee i.e. ‘SDMC’ represented by one of its members while petitioners 2 and 3 are parent-members of the SDMC. The SDMC is a statutory body constituted under section 21 of Right of Children to Free and Compulsory Education Act, 2009 i.e. RTE Act’. The petitioners in the instant case feel aggrieved of the decision dated 13-09-2021 taken by the State Government and consequential decision/order dated 20-09-2021 of the respondent No.2 by which ‘the school’ has been converted to an English Medium School – Mahatma Gandhi Government School (English Medium).

Observations

(i) Whether Article 21A of the Constitution of India which guarantees a right to education, also guarantees right to receive education in mother tongue or home language?

The Court observed that from perusal of Article 21A of the Constitution of India reveals that it enjoins upon the State to provide free and compulsory education to all children between the age of 6 to 14 years, but then, such right is not an absolute right, as its expanse has been hedged by the expression “in such manner as the State may, by law determine”. Since, Article 21A of the Constitution is tethered with the words “in such manner, as the State, may, by law determine”, according to this Court the State may by law provide the medium and manner to provide such free education, which in a given case can be Hindi, English or even regional dialect – the mother tongue of the child. No child or parent can claim it as a matter of right, which he/his ward should be instructed in a particular language or the mother tongue only, on the basis of what has been guaranteed under Article 21A of the Constitution.

(ii) Whether right to get education in mother tongue or Hindi is a fundamental right?

 The Court observed that fundamental right guaranteed under Article 19(1)(a) is only subject to reasonable restriction by law to be enacted, by the State, in the opinion of this Court, the instant decision taken or the State’s policy decision, cannot whittle down the fundamental right of a child to be taught in a particular medium, which is assured rather protected by Article 19(1)(a) of the Constitution of India.

(iii) Whether the State’s policy decision of converting the school in question to Mahatma Gandhi English Medium School is in conflict with the provisions of section 20, 21, 22 and 29(2)(f) of the Act of 2009?

The State of Rajasthan promulgated Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 wherein section 21 and 22 of the Act of 2009 and Rule 4 & 5 of the Rules of 2011, lays down that School Management Committee is required to prepare a school development plan which shall contain details of class-wise enrollments each year, requirement of number of additional teachers, requirement of additional infrastructure etc. Thus, by reading the provisions of the Act of 2009 and Rules of 2011, the Court is unable to conclude that prescription of medium of instruction is a decision to be taken by the School Management Committee, as a part of school development plan. Preparing a school development plan cannot be misconstrued to mean the prescription of syllabus and medium of instructions. It has to be done by the experts in the field of education/child education.

(iv) Whether the consent of School Development Management Committee (SDMC) is necessary before converting a Hindi medium school to an English medium school?

The Court observed that the functions to be discharged by the School Development Management Committee under clause (a) and (b) of section 21 (2) of the Act of 2009 do not include the decision to be taken with respect to language or medium in which the students of the school shall be taught. The medium of instruction is to be determined by the Appropriate Authority or Rajasthan School Education Council.

The Court observed that Article 19(1) (a) of the Constitution of India is the fountain head, being repository of the right to freedom of speech and expression from where flows such right. Article 19(1)(a) has wide ambit and it includes within its fold, right to have education in a particular medium. The right of having elementary education in mother tongue is also a statutory right conferred by section 29 (2)(f) of the Act of 2009, according to which medium of instruction, as far as practicable, is required to be in child’s mother tongue.

The power to frame laws in the subject of education falls in the Entry No.25 of concurrent list of the VII Schedule. And since the Act of 2009 occupies the field which unequivocally prescribes that medium of instructions in elementary education as far as practicable, be in mother tongue/home language of the child, any law made or framed by the State but for the assent of the President would be repugnant by virtue of Article 254 of the Constitution.

The Court opined, English, as a medium of instruction cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.

Be that as it may. Since the petitioner No.1 – SDMC of which petitioner No.2 & 3 are members, has itself decided to have a school of English medium, impugned decision of the State at the instance of the present petitioners cannot be quashed, more particularly, because the decision of the State or its policy as such are not under challenge.

The Court observed that the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19. In absence of any valid legislation brought by the State of Rajasthan, this Court is of the view that such right cannot be abrogated or taken away. The impugned decision dated 20.09.2021 seeking to convert the school in question to a Hindi medium school with immediate effect (session 2021-22) is fortiori, violative of Article 19(1)(a) and 14 of the Constitution of India.

Indisputably, the School Development Management Committee is a statutory body, constituted under the provisions of section 21 of the Act of 2009 and Rule 3 of the Rules of 2011. Section 21(2) and 22 of the Act of 2009 enjoins upon the committee to monitor the working of the school and prepare/recommend school development plan. In the opinion of this Court, the State’s administrative decision and action of forcing English as a mode or medium of instruction is violative of section 21 and 22 of the Act of 2009, particularly, in the face of resolutions adopted by the SDMC.

The Court keeping in mind the facts, policy decision and laws/rules directed that “in case, for the ensuing session i.e., 2022-23, the State wishes or proposes to convert the school in question to Mahatma Gandhi English Medium School, it shall convene a meeting of the School Development Management Committee constituted under Rule 3 of the Rules of 2011 in presence of the Sub Divisional Magistrate/Tehsildar and a nominee of District Education Officer concerned. Notice of the meeting with the proposed agenda will be circulated well in advance. If the School Development Management Committee by majority of the members present, resolves that the school in question be converted to an English medium school, then only, the State’s decision to convert the school in question to a Mahatma Gandhi English Medium School shall be given effect to. Else, the school will not be converted to an English medium school.”[School Management Development Committee v. State of Rajasthan, 2022 SCC OnLine Raj 38, decided on 04-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Moti Singh

For respondent: Mr. Pankaj Sharma, Mr. Rishi Soni and Mr. Deepak Chandak

Case BriefsSupreme Court

Supreme Court: In a case where an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States, challenged the prohibition of the export of PPE products from India, the bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ held that as a developing country with a sizeable population, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations.

The Court held that,

“Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.”

What was under challenge and why?

The appellant is the Managing Director of Anzalp Herbal Products Private Limited, a corporate body which inter alia, engages in Merchanting Trade Transactions (MTTs) that manufactures and trades in pharmaceuticals; herbal and skincare products; and personnel protection equipment products such as masks, gloves, sanitisers, PPE overalls, and ventilators. The appellant obtained an international MTT contract to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States.

At the relevant time, the export of PPE products had been banned by the Union Ministry of Commerce and Industry and the Directorate General of Foreign Trade, through successive notifications dated 8 February 2020, 25 February 2020 and 19 March 2020, due to the ongoing COVID-19 pandemic. Therefore, MTT contracts concerning PPE products were considered impermissible under Clause 2(iii) of the 2020 MTT Guidelines that stated,

“iii. The MTT shall be undertaken for the goods that are permitted for exports/imports under the prevailing Foreign Trade Policy (FTP) of India as on the date of shipment. All rules, regulations and directions applicable to exports (except Export Declaration Form) and imports (except Bill of Entry) shall be complied with for the export leg and import leg respectively.”

The appellant challenged the RBI and UOI’s prohibition of MTTs in respect of PPE products infringes his fundamental rights and freedoms under Articles 14, 19(1)(g) and 21 of the Constitution. It was submitted that the precedents of this Court indicate that once the citizen can demonstrate that the restriction directly or proximately interferes with the exercise of their freedom of trade or to carry on a business, it is the State’s burden to demonstrate the reasonableness of the restriction and that it is in the interest of the general public.

Since the Union of India had prohibited the export of PPE products from India, RBI submitted that in accordance with Clause 2(iii) of the 2020 MTT Guidelines, MTT transactions concerning PPE products were also prohibited since they allowed Indian individuals to assist others in diverting PPE products away from India in the global market. Further, it was clarified that Clause 2(iii) was of a general nature, and the RBI had no jurisdiction to exempt products from its application, since only the UOI determined the nation’s FTP.

Analysis

Since the appellant had assailed the suitability of the measure restricting MTTs in ensuring domestic supplies and for being overbroad in its ambit, since an Indian entity acting as an intermediary in an MTT between two different countries does not impact the availability of PPE products in India, the Court answered four crucial questions that finally led to upholding the validity of the impugned policy decision.

  1. Is the measure in furtherance of a legitimate aim?

“Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The State’s aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the State’s improvement of public health as a primary duty under Article 47.”

The Court noticed that the appellant had not challenged the legitimacy of the aim of ensuring adequate PPE in India. Also, the RBI, at the time of filing its affidavit on 30 January 2021, had elaborated on the state of the pandemic in the country and the necessity of ensuring adequate stock of PPE products.

It was, hence, found that the executive’s aim to ensure sufficient availability of PPE products, considering the ongoing pandemic, is legitimate. Accordingly, it was held that the impugned measure is enacted in furtherance of a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business.

  1. Is the measure suitable for achieving such an aim?

The Court considered the definition of MTT as defined in the International Monetary Fund in its sixth edition of the Balance of Payments and International Investment Position Manual which states:

“10.41 Merchanting is defined as the purchase of goods by a resident (of the compiling economy) from a nonresident combined with the subsequent resale of the same goods to another nonresident without the goods being present in the compiling economy. Merchanting occurs for transactions involving goods where physical possession of the goods by the owner is unnecessary for the process to occur.”

Hence, it was noticed that while the goods involved in an MTT never enter the territory of the intermediary, they are still recorded as negative and positive exports from the territory of intermediary during the import and export leg of the MTT, which is similar to how ordinary imports and exports would be recorded.

Therefore, MTTs are analogous to traditional imports and exports and hence, it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP.

  1. Is the measure necessary for achieving the aim?

While MTTs in PPE products may not directly reduce the stock of these products in India, it still does contribute to their trade between two foreign nations. In doing so, it directly reduces the available quantity of PPE products in the international market, which may have been bought by India, if so required. As such, MTTs contribute to reducing the available stock of PPE products in the international market that India could have acquired.

Also, the UOI’s policy to ban the export of PPE products reflects their stance on the product’s non-tradability during the COVID-19 pandemic. It highlights a clear policy choice under which Indian entities shall not be allowed to export these products outside of India, in all probability to the highest buyers across the globe who may end up hoarding the global supply.

Hence, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. A mere ban on exports would not regulate the utilisation of Indian foreign exchange. Hence, in order to keep India’s policy position consistent across the board, the prohibition of MTTs in respect of PPE products was necessary and the only alternative of ensuring the realisation of legitimate State interest.

  1. Is the measure adequately balanced with the right of the individual?

In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks. As a developing country with a sizeable population, RBI’s policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned.

Epilogue

The Court noticed that the right to equality and the freedom to carry on one’s trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors.

“This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public.”

The Court, however, clarified that it was not its stance that judicial review is stowed in cold storage until a public health crisis tides over and said,

“This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic.”

[Akshay N. Patel v. Reserve Bank of India, 2021 SCC OnLine SC 1180, decided on 06.12.2021]


Counsels

For Appellant: Advocate Aayush Agarwala

For RBI: Advocate Ramesh Babu M R

For Ministry of Commerce and DGFT: Vikramjit Banerjee, Additional Solicitor General


*Judgment by: Justice DY Chandrachud

Case BriefsSupreme Court

Supreme Court: Sanjay Kishan Kaul and M.M. Sundresh*, JJ., had set aside Allahabad High Court’s decision whereby the High Court had declared the Regulation 101 framed under Intermediate Education Act, 1921 as unconstitutional. The Bench expressed,

“We have already noted the fact that “Outsourcing” as a matter of policy is being introduced throughout the State. It is one thing to say that it has to be given effect to with caution as recommended by the Seventh Central Pay Commission, and another to strike it down as unconstitutional.”

The State of Uttar Pradesh had preferred the instant appeals against the judgment of the Allahabad High Court wherein, it had held that Regulation 101 framed under the Intermediate Education Act, 1921 as amended is unconstitutional.

Sub-Section 4 of Section 9 of the Act, 1921 provides the State Government authority to modify or rescind or make any regulation in respect of any matter. Similarly, Section 16G of the Act deals with conditions of service of the head of institutions, teachers and other employees and Sub-section (2) facilitates the introduction of regulation which could be extended to various activities such as probation, scale of pay, transfer of service, grant of leave etc.

Regulation 101

Prior to amendment, Regulation 101 stated,

“Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution.”

However, with a view to regulate and curtail staff expenditure a policy decision was taken by the State of Uttar Pradesh to not create any new post in Class ‘IV’ category and wherever it may be necessary, the work may be carried out through “Outsourcing” which was backed by the recommendations of Sixth and Seventh Central Pay Commission. Following the said decision, Regulation 101 was again amended in 2013 which was notified on 24-04-2014. The effect of the said amendment was to make the post of Class “IV” employees which was hitherto supposed to be filled up by the institutions through “Outsourcing”. Therefore, the permanent posts were accordingly abolished, thereby, replacing the method of appointment by way of “Outsourcing.

Before The High Court

The High Court was of the opinion that Regulation 101 was unconstitutional being repudiate to Section 16G of the Act and the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, and went onto observe that “Outsourcing” as a concept of making available the staff to perform Class “IV” jobs was unconstitutional, arbitrary and illegal contrary to Article 14 of the Constitution. The High Court held that Section 9(4) of the Act could be interpreted to give sufficient ammunition to sustain the impugned regulation.

Analysis and Opinion

Right to Aid

The Bench observed,

“We are dealing with a case where aid is not denied in toto but sought to be given in different form…when such a decision is made as a matter of policy and is being applied not only to educational institutions but spanning across the entire State in every department, one cannot question it and that too when there is no express arbitrariness seen on the face of it.”

Holding that right to get an aid is not a fundamental right, the Bench stated that a decision to grant aid is by way of policy decision and financial constraints and deficiencies are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid. Hence, even in a case where a policy decision is made to withdraw the aid, an institution cannot question it as a matter of right. On the contrary, an institution can never be allowed to say that the grant of aid should be on its own terms.

Minority and Non-Minority

“When it comes to aided institutions, there cannot be any difference between a minority and non-minority. A protection cannot be expanded into a better right than one which a non-minority institution enjoys.”

Thus, the Bench held that an institution receiving aid is bound by the conditions imposed and therefore expected to comply. Reliance was placed by the Court on T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, wherein it was held that, “any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority and put the matter beyond any doubt. A caveat was however entered and it was stated that the government regulations cannot destroy the minority character of the institution.”

Policy Decision

Noticing that Regulation 101 was in the form of a subordinate legislation, the Bench stated that challenge to a regulation stands on a different footing than the one that can be made to an enactment. Since, an executive power is residue of a legislative one, the exercise of said power i.e., the amendment of the impugned regulation, cannot be challenged on the basis of mere presumption. The Bench opined, once a rule is introduced by way of a policy decision, a demonstration on the existence of manifest, excessive and extreme arbitrariness is needed to challenge it.

Other Contentions

The Bench held that Section 9(4) of the Act is certainly of a wider important and power conferred to the State Government to give effect to the Act is unbridled.  Noticing that Regulation 101 had, prior to the amendment, imposed strict compliance of getting prior approval of the government, however except in Civil Appeal No. 2753 of 2021, no such approval had been granted, the Bench was of the view that it only indicated the real intention of the respondents/management which was to have their own recruitment other than anything else. The State had abolished the post though in an indirect way by providing for “Outsourcing”, holding that a court cannot create or sustain the aforesaid post, the Bench expressed,

 “‘Outsourcing’ per se is not prohibited in law. It is clear that recruitment by way of “Outsourcing” may have its own deficiencies and pit falls, however, a decision to take “Outsourcing” cannot be declared as ultra vires of the constitution on the basis of mere presumption and assumption.”

Relief

On the issue as to whether the institutions should be held responsible with respect to those who were recruited though contrary to the Impugned Regulation or not, the Bench stated,

“These persons are innocent civilians who got embroiled in the legal battle initiated by the management and made to fight as front-line soldiers.”

Accordingly, the impugned judgement was set aside and the Regulation 101 was upheld.  The appeals were allowed with the following directions:

(i) The respondents in Civil Appeal No 2753 of 2021 were directed to be confirmed by granting adequate approval as Class “IV” employees, having given prior approval.

(ii) The respondents and similarly placed persons who were recruited by the institutions were directed to be continued with the same scale of pay as if they were recruited prior to the amendment for which the entire disbursement was directed to be made by the institutions alone.

(iii) The State was directed to ensure that adequate mechanism is available for the proper implementation of “Outsourcing” while taking note of the recommendations made in the Seventh Central Pay Commission.

[State of Uttar Pradesh v. Principal Abhay Nandan Inter College, 2021 SCC OnLine SC 807, decided on 27-09-2021]

__________________________________________________________________________________________________________

Report by Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

__________________________________________________________________________________________________________

Appearance by:

Counsel for State of U.P.: Aishwarya Bhati, Additional Solicitor General and Advocate Harish Pandey

Counsel for the Respondents: Advocate Manish Kumar Gupta


*Judgment by: Justice M.M. Sundresh

Case BriefsSupreme Court

Supreme Court: While elaborating the scope of judicial review, Bench of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ., held that,

“It is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair.”

Crux of the Matter

Question relating to interpretation of Section 11 of the Coal Mines (Special Provisions) Act, 2015 which was an outcome of the judgment of this Court’s decision in Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, and ancillary question pertaining to the scope of judicial review of administrative action of the State authority arose for consideration in the instant appeals.

What are the present appeals challenging?

Present appeal challenged the decision of Punjab and Haryana High Court thereby allowing petitions filed by respondent – EMTA Coal Limited and holding that respondent herein will have the first right of refusal in the matter of lending of Mining Lease.

Factual Matrix

Punjab State Electricity Board (PSEB) now known as Punjab State Power Corporation Limited was proposed to be allotted Captive Coal Mines by the Union of India.

Bids were invited for the purpose of development of Captive Coal Mines and in the said bid, the respondent emerged successful. This resulted in an agreement, thereby creating a Joint Venture Company called Panem Coal Mines Limited.

Further, the said agreement provided the rights for mining of coal from the Coal Mines, transporting and delivery of it, wholly and exclusively to PSEB. Since EMTA being a partnership firm could not have been a shareholder of the Joint Venture Company, a follow up Joint Venture Agreement was entered between PSEB, EMTA and three partners of EMTA, incorporating the same terms and conditions as were found in the earlier agreement.

Later, Union of India allotted a Pachhwara Coal Block in the State of Jharkhand to PSEB.

In August, 2006 a coal purchase agreement was executed between Panem and PSEB, for the purpose of supply and delivery of the coal to power station of PSEB from Pachhwara Coal Block.

In 2007, Mining Lease was issued by the Jharkhand Government in favour of Panem, for mining coal even from the forest areas of the Coal Block.

When did the problem occur?

Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516, Supreme Court held that the entire allocation of Coal Blocks made between 1993 and 2011, except those which were made through competitive bidding, were invalid, unfair arbitrary and violative of Article 14 of the Constitution of India.

Further orders passed in the case of Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 614, this Court quashed all Coal Block allocations made by the Central Government between 1993 and 2011.

Court also accepted the submission of the Attorney General that the allottees of the Coal Blocks other than those covered by the judgment and the four Coal Blocks covered by the subsequent order, must pay an amount of Rs 295/­ per metric ton of coal extracted as an additional levy.

Further, Centre vide allotment order again allocated Pachhwara Captive Coal Block in favour of PSPCL.

On facing acute shortage of coal for paddy season, PSPCL entered into a transitory agreement and with EMTA later published Notice inviting Global Tender, inviting bids for the appointment of Mine Developer-cum-Operator, for supply of coal.

EMTA in view of the above facts, filed a petition before the Punjab and Haryana High Court challenging the said NIT.

Analysis, Law and Decision

Firstly, the Court referred to Section 11 of the Coal Mines (Special Provisions) Act, 2015.

“11. Discharge or adoption of third party contracts with prior allottees.—

  • Notwithstanding anything contained in any other law for the time being in force, a successful bidder or allottee, as the case may be, in respect of Schedule I coal mines, may elect, to adopt and continue such contracts which may be existing with any of the prior allottees in relation to coal mining operations and the same shall constitute a novation for the residual term or residual performance of such contract: 

Provided that in such an event, the successful bidder or allottee or the prior allottee shall notify the nominated authority to include the vesting of any contracts adopted by the successful bidder. 

  • In the event that a successful bidder or allottee elects not to adopt or continue with existing contracts which had been entered into by the prior allottees with third parties, in that case all such contracts which have not been adopted or continued shall cease to be enforceable against the successful bidder or allottee in relation to the Schedule I coal mine and the remedy of such contracting parties shall be against the prior allottees.”

Bench stated that, it is a settled principle of law that when, upon a plain and literal interpretation of the words used in a Statute, the legislative intent could be gathered, it is not permissible to add words to the Statute.

Equally, such an interpretation which would make some terms used in a Statute otiose or meaningless has to be avoided.

In view of the above stated, Bench added that considering Section 62 of the Contract Act, 1872 read with Section 11 of the said Act, it has observed that the parties to a contract may willingly agree to substitute a new contract or to rescind it or alter it.

Observing the above, Court added that the High Court erred in observing that EMTA had a legitimate expectation.

Hence, the High Court’s reasoning was totally wrong.

Bench further opined that High Court’s reasoning that PSCPCL was within its right to reject the arrangement if the performance of EMTA was unsatisfactory or if there was any other factor which the Corporation found relevant enough to discard the arrangement altogether was totally erroneous/ 

Supreme Court’s observation:

Merely because the Coal Mine Block was allotted to PSPCL, the same could not give any vested right in favour of EMTA, particularly in view of Section 11 of the Act.

 High Court erred in forcing PSPCL to continue with the contract with EMTA, though it was not willing to do so. 

Whether Section 11 of the said Act mandates the successful allottee to continue with the existing contract?

To the above question, Bench answered saying no.

Judicial Review

The contention that order passed by PSPCL in 2018 was in a totally arbitrary and irrational manner was answered by the Court stating that the said order was passed by an authority of the State in exercise of its executive function.

Elaborating the above, Court stated that the scope of judicial review of administrative action has been well crystallised by this Court in Tata Cellular v. Union of India, (1994) 6 SCC 651.

Supreme Court expressed that while exercising powers of judicial review, the Court is not concerned with the ultimate decision but the decision-making process.

What all the Court can enquire in?

Whether a decision­ making authority has exceeded its powers, committed an error of law or committed breach of principle of natural justice.

Court can also examine whether an authority has reached decision that no reasonable Tribunal would have reached or has abused its powers.

Wednesbury principle

Court will examine whether the decision of an authority is vitiated by illegality, irrationality or procedural impropriety. While examining the question of irrationality, the court will be guided by the principle of Wednesbury.

While applying the Wednesbury principle, the court will examine as to whether the decision of an authority is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.

 Conclusion

Hence, in view of the above discussion, PSPCL’s decision cannot be questioned on the ground of illegality or procedural impropriety.

It was noted that, PSPCL had decided to go in for competitive bidding process for the purpose of eliciting the best operator.

Therefore,

A policy decision to get the best operator at the best price, cannot be said to be a decision which no reasonable person would take in his affairs.

 While concluding the Court held the Punjab and Haryana High Court’s decision unsustainable in law and the appeals were allowed. [Punjab and State Power Corporation Ltd. v. EMTA Coal Ltd., 2021 SCC OnLine SC 766, decided on 21-09-2021]


Advocates before the Court:

For the appellant-PSPCL: K.V. Viswanathan, Senior Counsel

A.M. Singhvi, Senior Counsel appearing on behalf of appellant­-DBL­VPR Consortium

Mukul Rohatgi, Senior Counsel appearing on behalf of respondent-EMTC

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while addressing a matter with respect to menace being caused due to online games expressed its opinion whether the Court can ban the same or not.

Petitioner in the instant matter complained of online business enterprises preying on children and young adults by offering divers online games that are addictive.

Submission of petitioner went by stating that since mobile phones have completely taken over our lives and even children and minors crave for an obtain mobile phones, they are supposed to being lured by unscrupulous business enterprises and particularly during the lockdown when schools and educational institutions are closed, many children and young adults are hooked to online games.

In petitioner’s opinion, the said addiction is devastating and life-threatening in the sense that it destroys the career-building phase of a young adult which may even lead to suicidal tendencies and extreme anger against parents and elders seeking to check the habit.

There is no doubt that children and young adults these days are addicted to their phones and their worlds appear to revolve around their mobile phones.

Bench expressed that even constitutional courts should be slow in entering into such areas and dealing with such matters on the personal sense of morality of the individual complainant or the Judge or Judges concerned.

Court elaborated stating that,

There is no doubt that when there is some illegal action or something which is detrimental to larger public interest, constitutional courts intervene; but in the matters of the present kind, especially when elected governments are in place, such matters of policy should be left to the wisdom of those representing the people and having their mandate instead of the Court issuing a diktat.

 High Court added that the duty of the Court is to direct the complainants to the executive for a more wholesome and studied policy decision to be taken by the executive than what may be possible before any Court.

Concluding the matter permitting the petitioner to make representations to the Union of India and to the State added that the larger or long-time effects that these online games have on children and young adults have not been gone into in any great detail in the present proceedings, particularly in the absence of any scientific material in such regard.  [E. Martin Jayakumar v. Government of India, 2021 SCC OnLine Mad 2335, decided on 1-07-2021]


Advocates before the Court:

For Petitioner:

Ms.Selvi George

For Respondents:

Mr. K. Srinivasamurthy, Senior Panel Counsel, for respondents 1 to 3

Mr. P. Muthukumar, Counsel for State for respondents 4 to 6

Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Sabina and Manoj Kumar Vyas, JJ., dismissed a petition which was filed by way of public interest litigation praying to,

  • issue a writ order or direction in nature thereof thereby call for the entire record of the case and may kindly direct the respondents authorities to declared unapproved journalist as front line health workers and grant packages them benefit of Insurance Scheme and included them scheme of exgrosiya which provided Rs 50,00,000/- aid to dependent of deceased who died during service in prevention of Corona Virus and made a covid centre in press club and given preference for vaccination to journalist and their family members in the larger interest of justice.
  • issue any other order or direction which this Hon’ble Court may deem fit, just and proper in the facts and circumstances of the case may also passed in favour of petitioner.
  • Cost of the writ petition be also awarded in favour of the petition.

The Court while dismissing the petition held that there was no need for interference and that the present case was strictly a policy decision.[Vivek Singh Jadon v. State of Rajasthan, 2021 SCC OnLine Raj 509, decided on 28-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Appearance:

For Petitioner: Mr Samarth Sharma

Case BriefsHigh Courts

Gujarat High Court: G.R. Udhwani, J., dismissed a petition wherein a mandate was sought to issue an order/ circular / instructions directing all non-banking financial companies such as respondent 3 to refrain from taking steps for recall of loans availed by various persons or for liquidating securities pledged or available with them, during the period of a moratorium until 31-08-2020 as may be extended by respondent 1.

The petitioner was a borrower and respondent 3 was a financier. The Court observed that from the bare perusal of the prayer clauses evidently, the petition was more in the nature of requiring this Court to undertake the activity of banking regulations upon itself and pass omnibus orders directing the respondents more particularly the respondent 1 to come up with the policy decision as desired by the petitioner.

The Court held that such a petition cannot be maintained, assuming that it is maintainable, even on merits, no case is made out; inasmuch as, the entire case proceeds on the misconception as to the applicability of the statement on the development and regulatory policy.

The Court was unable to find any provision in the policy above-stated bearing on the maintaining of the margin, consequently dismissed the petition.[Seetha Kumari v. Reserve Bank of India, R/Special Civil Application No. 7942 of 2020, decided on 07-07-2020]


Suchita Shukla, Editorial Assistant has reported this brief.

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, 2021 SCC OnLine SC 140, 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, 2021 SCC OnLine SC 140, 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]