Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Acting Chief Justice C. Hari Shankar, J, dismissed a writ petition challenging the appointment of the Chairman-cum-Managing Director of ONGC as well as the appointment to the post of Non-Official Director of ONGC, both appointments done by notification by the Union of India.

Mr. Jayant Bhushan, Senior Counsel appeared on behalf of the petitioner while the respondents were represented by Mr. Sanjay Jain, Addl. Solicitor General of India along with Mr. Sanjeev Narula, Central Government Standing Counsel and Mr. Ravindra Agarwal, Advocate. In reference to the challenge against the appointment of the Chairman-cum-Managing Director, it was contended by the petitioner that Respondent 5 (appointed person), while in employ had been placed under suspension by the competent authority under sub-rule (1) of Rule 33 of the ONGC Conduct and Discipline and Appeal Rules, 1994 read with the Code of Conduct. Disciplinary proceedings were contemplated against him and hence, the suspension. He was allowed to carry on work after a period of 90 days as the agency had failed to file the charge-sheet, however the charges were not dropped and proceedings stayed pending.

Concerning the appointment, it was argued that when the Public Enterprises Selection Board (hereinafter “PESB”) invited applications for the post, the format required the applicants to disclose whether any disciplinary proceedings had been held against them in the last 10 years. PESB subsequently decided to recommend Respondent 5 for the post, and due information was put up on the website. The petitioner claims to have lodged complaints against the recommendation on 21st July, 2017 with the Union of India and the PMO. The petitioner had filed RTIs with respect to the disciplinary proceedings but did not get the information as it was protected under Section 8(1)(j) of the RTI Act, the RTIs were not pursued further by the petitioner.

The appointment of Respondent 5 was approved and an order to that effect was passed by the Appointments Committee of the Cabinet. Upon the appointment, the Ministry of Petroleum and Natural Gas passed an order wherein it dropped the proceedings against Respondent 5. The Court found no tenable grounds for challenge under these circumstances. The other challenge was against Respondent 6’s appointment as an Independent Director on the Board of ONGC. The petitioner argued that the appointment was in violation of Section 149(6) of the Companies Act, 2013, under which an Independent Director cannot be related to a promoter, pointing towards State largesse.

The petitioner also contended that the appointment was not in accordance with government directive for consideration of non-official directors for the board of a Central Public Sector Enterprise which required 15 years of experience in the relevant domain of ONGC’s area of operation. The petitioner’s argument revolved around the statement that Respondent 6 was a doctor with a maximum of 10 years experience as a medical professional and none in the relevant domain. The respondents argued that the appointment was due to Respondent 6’s being a “person of eminence with a proven track record” as per para no. A(a)(vi) and not as per para A(a)(iv) as stated by the petitioner. The respondents clarified with proof that Respondent 6 was a qualified doctor having experience of almost 20 years, and had also qualified for UPSC exams in 2000. The petitioner also founded a well-known NGO, Swaraj, which is pro-active in Delhi, working for the benefit of the poor and downtrodden and Dalits. The respondents stated that a doctor with 20 years of experience as well as experience in running an NGO has the adequate skills, experience and knowledge in management and administration required for performing duties of an Independent Director.

The Court, accepted the arguments of the respondents while rejecting the pleas of the petitioner. The Court discussed at length about the responsibilities a litigant must be aware of while filing a PIL. Referring to State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639. The Court observed that the petitioner had made unsubstantiated pleas, failing to make a prima facie case in support of the challenge. Petition dismissed. [Energy Watchdog v. Union of India,  2017 SCC OnLine Del 11422, decided on 06.11.2017]

Case BriefsHigh Courts

Hyderabad High Court: The Court dismissed a writ petition seeking a writ of quo warranto against the respondent to show cause of his authority in holding the office of the Chief Minister of the State of Andhra Pradesh.

The case of the petitioner is that proper statutory guidelines have not been followed by the Governor when inviting the respondent to form a government, therefore, the respondent has no rightful authority to hold the position. The Andhra Pradesh Reorganization Act, 2014 under Section 19(1) states that allocation can be made for only the sitting members of the Legislative Assembly of Andhra Pradesh. The petitioner alleges that this requirement has not been followed by the Governor.

The Court is of the view that the writ petition has been filed to abuse the process of the Court as it has been filed 3 years and 2 months after the appointment of the respondent. Further, the similar process was carried out in the State of Telangana too by the Governor in accordance with Article 164(1) of the Constitution. The petitioner has challenged only one appointment and not both. The Court reasoned that there was no one who fits the criteria of sitting member of Legislative Assembly on the given date due to the Presidential Proclamation. Therefore, the decision taken by the Governor cannot be termed as illegal. On these grounds the writ petition was dismissed. [Pakkala Suribabu v. State of Andhra Pradesh,  2017 SCC OnLine Hyd 271, decided on 23.08.2017]


Case BriefsHigh Courts

High Court of Jharkhand: In a recent judgment, a Single Judge Bench of S. Chandrashekhar, J., decided upon the controversy concerning qualification for appointment of Graduate Trained Teachers.

Following the issuance of the advertisement for the appointment on the post of Graduate Trained Teacher in Government Secondary Schools, which laid down minimum educational qualifications for the appointment, aggrieved Arts and Science Graduates filed a petition in the Court for the revision of the qualifications. The Arts Graduates challenged the advertisement, contending that clubbing of History and Political Science is not only against general practice, but also breaches their rights under Articles 14 and 16 of the Constitution of India. Given that no such combination of subjects for Economics and Geography, they alleged that it is discriminatory, illegal, arbitrary and void to prescribe different qualifications for subjects in the same group.

The Science Graduates claim, on the other hand, was not held valid given that the classification of posts made on the basis of subject combination in both Mathematics and Biology is not arbitrary or discriminatory.

In the light of existing facts, the Court held that the combination of subjects as qualification for appointment, given that it does not ultra vires of Articles 14 and 16 of Constitution of India. The advertisement was quashed due to “serious inconsistencies, mistakes and drafting errors” and all those who have already applied for appointment and those who could not due to the prescribed qualification under the advertisement were declared eligible for making applications. [Hari Sharma v. State of Jharkhand, 2017 SCC OnLine Jhar 1226; order dated 11-05-2017]

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India appointed Justice Mukhtar Ahmad, Amar Singh Chauhan,  Shamsher Bahadur Singh,  Vinod Kumar Misra, Pramod Kumar Srivastava, Raghvendra Kumar, and Pratyush Kumar, Additional Judges of the Allahabad High Court, to be Judges of the Allahabad High Court with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 13th January, 2017]

Case BriefsHigh Courts

High Court of Bombay: While examining the legality and validity of the order/opinion passed by the Hon’ble Administrative Judges’ Committee, the Division Bench comprising of SC Dharmadhikari and BP Colabawalla, JJ., upholding the order/opinion, held that the petition filed by the lawyer under Article 226 of the Constitution seeking his appointment to the post of Civil Judge, Junior Division and Judicial Magistrate, First Class and to set aside the above order/opinion stands dismissed. The Court stated that the opinion/order of the Hon’ble Administrative Judges’ Committee does not suffer from any infirmity and can neither be termed as perverse since it is passed having regard to the nature of allegations leveled against the petitioner which were of a serious nature and not that could be classified as being petty thereby hindering his name to be recommended by the Hon’ble Administrative Judges’ Committee for judicial service despite the petitioners name appearing in the merit list.

The Hon’ble Administrative Judges’ Committee has come to a conclusion and taken such a decision after considering the criminal case filed against the petitioner earlier, in which he was acquitted of the charges however, the nature of these charges was serious i,e, he was accused of committing offences describe under Sections 324, 504 of the Penal Code, 1860. The contention of the petitioner’s counsel  that the criminal case filed against the petitioner was a was “completely frivolous” and was “instituted due to personal enmity with the complainant in the case” was struck down. On perusing the judgment of acquittal, it can be seen that it was not a clean acquittal but on the ground of reasonable doubt since the prosecution had failed to prove its case beyond reasonable doubt which itself created a doubt about the guilt of the petitioner.

The Court relying on  Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154, as well as the Maharashtra Judicial Service Rules, 2008, observed that a candidate in the select list / merit list does not acquire a fundamental or an indefeasible right to be appointed in such post and he cannot be aggrieved by his non-appointment except when the administration does so either arbitrary or for no bonafide reasons. The Hon’ble Administrative Judges’ Committee has acted in a bonafide manner, after considering the functions that a member of the judicial service is require to carry out has not recommended the name of the petitioner since the charges leveled against the petitioner were of serious nature thereby not making him a suitable candidate to be appointed in judicial service as he was not someone with an “unbelemished character.”

The Court dismissed the petition relying on the decision in Avtar Singh v. Union of India, (2016) 8 SCC 471,where the Supreme Court has clearly stated that though the candidate may have been acquitted of the charges of serious nature and not involving offence of petty nature, the employer is bound to consider the grounds of acquittal and various other aspects to form an opinion as to the fitness of the candidate for appointment. On applying the ratio laid down in the above case to the facts of the present case the Court observed that the charges leveled against the petitioner were of a serious nature and not that could be classified as being petty hence a candidate like a petitioner, who is applying for judicial services, would have to live up to and meet even higher standards than any other candidate applying for a job with the Government or other civil services. Therefore,the order/opinion of the Hon’ble Administrative Judges’ Committee for not recommending the name of the petitioner for the post of Civil Judge, Junior Division and Judicial Magistrate, First Class does not suffer from any infirmity and can neither be termed as perverse or suffering from any error. [Vithal Waman Shelke v. The High Court of Bombay, 2016 SCC OnLine Bom 9129, decided on 14th October 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: While dealing with the issue relating to eligibility for appointment of Chairman/ Member Secretary of State Pollution Control Board, the Tribunal held that the Pollution Boards constituted by the State Governments/ Union Territories shall be strictly in accordance to Section 4 of the Water Act and Section 5 of the Air Act.

In the present case, a challenge has been made to the constitution of State Pollution Control Board mainly on the ground that person who do not qualify in terms of Section 4 of the Water (Prevention and Control) of Pollution Act, 1974 and Section 5 of the Air (Prevention and Control) of Pollution Act, 1981 are being appointed as Chairman/Member Secretary of the Board. The case of the applicant is that there is no infrastructure of professional and technical officer in the Environment department of the State Government and State Board. Manpower in the State Board is almost same as in 2000 and is highly insufficient and in-competent to cope up with thousands of industries and development centres which have now been established. Further the applicant stated that rehabilitation and rebuilding of infrastructure in the State is being planned and executed by IAS/IFS officers having administrative/Forest background only. The knowledge and practical experience of IFS officers in implementation of Forest Conservation/Wildlife Protect/Bio-diversity Act, which is only 10% of total Environment, cannot fulfil the requirement of professional knowledge and expertise of environment as required under Water and Air Protection Act and the Rules made thereunder. According to the applicant, the State Government violated the provisions of Water Act, 1974 and Air Act, 1981 and the Principal Secretary, Forest and Environment, Government of Uttarakhand had illegally nominated himself as Chairman and 10 others, by their designation, as Members of the State Pollution Control Board. The appointment/nominations of Chairman and Member Secretary should have been of the persons who were having special knowledge and practical experience in environment and that of other members as per the relevant provision. It should not have been on the basis of their designation, by virtue of service in the State Government

The Tribunal after perusal of the argument advanced issued certain guidelines to the State Governments/Union Territories in order to maintain the smooth functioning of State Pollution Control Boards,

  • The State Governments/ Union Territories shall constitute the Pollution Control Boards strictly in accordance to Section 4 of the Water Act and Section 5 of the Air Act, and the eligibility criteria as aforesaid, for appointment of Chairman/Member Secretary of the Board.
  • The State Government is to ensure that the person manning the post of Chairman/Member Secretary of State Pollution Control Board are competent and eligible with requisite knowledge or practical experience in the field of environment protection and pollution control, with experience of management.
  • The appointment as a, Chairman or Member Secretary, should be of persons who are having special knowledge or practical experience or qualification in environment protection studies and not by virtue of their designation in service of the State Government like Chief Secretary, Principal Secretary, Environment Secretary or even Politician like former Speaker, Minister, M.L.A, all literary persons and non-technical persons.
  • The State Government are to notify the rules under Water and Air Act expeditiously specifying the qualifications and experiences required for the post of Chairman/ Member Secretary. The post of Chairman/ Member Secretary should be advertised and thrown open for all candidates irrespective of the fact whether they are in the Government, Academia or in private sector, so as to attract the best talent to man the said post.
  • The nominated Chairman/Member Secretary should have a fixed term of office which should not be extended for more than one term. Such persons should not hold office in the Board in accordance to their tenure in State Government.
  • Once a person having requisite eligibility is appointed as Chairman/Member Secretary in the State Pollution Control Board, he is to continue for full tenure and the same is not to be curtailed by removal or by repatriated before its completion, unless there are charges of misconduct or cogent reasons which are to be placed on record. Completion of tenure as Chairman/ Member Secretary of the Board, not only gives security of service to the persons who are appointed but it is essential for efficiency of work and smooth functioning of the Board. A tenure unaffected by political and bureaucratic interference would be extremely important for the officials to function fearlessly and in accordance to the mandate of the legislation as given under relevant Environmental Protection Laws like Water Act, Air Act etc.
  • The State Government is to develop the infrastructure in the State Board by professional and technical officers who are efficient and competent to cope-up with increase of industries and development centres. They should ensure adequate manpower for the purpose of execution of provision of the relevant law.
  • The State Government should have latest equipped laboratories for analysis of samples of trade effluents etc.
  • The State Government is to ensure strict compliance of Section 8 of Water Act and Section 10 of the Air Act so that a meeting of the State Pollution Control Boards are held regularly and in accordance with law.
  • The State Governments and all concerned Authorities shall act in accordance with the directions contained in this judgement particularly paragraph 148 of the Judgment.
  • The State Government and all competent Authorities shall proceed to make appointment/ nomination of the Members of the Board as per categorisation and subject to the limitations of number provided under Section 4 and 5 of the Act of 1974 and 1981 respectively as expeditiously as possible, in any case not later than three months from the date of pronouncement of this Judgment.

[Rajendra Singh Bhandari v. State of Uttarakhand, 2016 SCC OnLine NGT 456, decided on 24th August, 2016]

Case BriefsSupreme Court

Supreme Court: Exploring the true purport of Art. 233(2) of the Constitution of India where the question to be decided was that whether the bar under Article 233(2) is only for the appointment or even for the participation in the selection process, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ held that when the framers of the Constitution have used the word “appointed” in clause (2) of Article 233 for determining the eligibility of a person with reference to his service then it is not possible to read the word “selection” or “recruitment” in its place.

Article 233(1)2 stipulates that appointment of District Judges be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. However, Article 233(2)3 declares that only a person not already in the service of either the Union or of the State shall be eligible to be appointed as District Judges. Stating that there lies a subtle distinction between the words “selection” and “appointment” in service jurisprudence, the Court held that every person who is successful in the selection process undertaken by the State for the purpose of filling up of certain posts under the State does not acquire any right to be appointed automatically.

It was further explained that the text of Article 233(2) only prohibits the appointment of a person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the candidature of a person who is in the service of the Union or the State. A person who is in the service of either of the Union or the State would still have the option, if selected to join the service as a District Judge or continue with his existing employment. Compelling a person to resign his job even for the purpose of assessing his suitability for appointment as a District Judge is not permitted either by the text of Art. 233(2) nor contemplated under the scheme of the constitution as it would not serve any constitutionally desirable purpose. [Vijay Kumar Mishra v. High Court of Judicature at Patna, 2016 SCC OnLine SC 802, decided on 09.08.2016]

Case BriefsHigh Courts

Allahabad High Court: Dismissing the PIL filed by Spokesperson of Bhartiya Janta Party  seeking quashing of appointment of a retired judge on the basis of religion and seeking a direction for appointing a Judge who is well versed with Hindu Dharma, the division bench comprising of Suneet Kumar and Shri Narayan Shukla, JJ fined the petitioner with a sum of Rs. 25000 for filing frivolous, mischievous petition and also directed the Bar Council of Uttar Pradesh to initiate disciplinary proceedings against Advocate for the Petitioner for filing and drafting reckless petitions.  The Learned Judge was appointed for holding the enquiry into the Jawaharbagh incident in which  two police officers and several common citizens were murdered.

The petitioner later sought permission to not press issue relating to appointment of retired judge  and pleaded that “That the petitioner is praying for the quashing of the Justice Imtiaz Murtaza Commission for the reason that the matter relates to a dispute with respect to a Hindu religious outfit and so it is improper to appoint a Muslim Judge to enquire into a purely religious matter related with Baba Jai Gurudev and so in place of Sri Imtiaz Murtaza, some Judge well versed with Hindu culture and Dharma should be appointed to enquire the matter.”

The Bench further observed that it is a serious issue on communal lines has been pleaded tarnishing the image of the Judge merely for the reason of his religion, and that the  tone and tenor of the advocate of the petitioner while addressing the Court is of arrogance and threat which is also reflected from his body language. Hence, the Court ruled  that the petition styled as PIL is a frivolous, mischievous petition filed for personal gains instituted at the behest of a person seeking publicity, therefore, deserves to be dismissed with cost assessed at Rs. 25,000/- by the petitioner to the Collector Lucknow and for the Conduct of the advocate of the petitioner, the court slammed that his conduct of  filing and drafting reckless petitions containing scandalous pleadings and being motivated by personal agenda hence, the Bar Council of Uttar Pradesh was directed to initiate disciplinary proceedings against him to adjudge his suitability to continue practice as an Advocate and sent a copy to the  Chairman, Bar Council, U.P., Allahabad. [Indra Pal Singh v. State Of U.P. 2016 SCC OnLine All 398, decided on 13th June, 2016]

Law School NewsOthers

Dr. Bimal N. Patel ,director of Gujarat National Law University has been appointed as a  member(Part- time) of the 21st Law Commission of India.

The 21st Commission is constituted for a period of three years from 1 September 2015 to 31 August 2018

He has been serving as the Director of GNLU since 2008

Dr. Patel obtained his PhD in International Law from Leiden University (State Practice of India and Development of International Law) and PhD in International Law and Governance from Jaipur National University, India (Responsibility of International Organisations).

Appointments & TransfersNews

The President appointed (i) Shri Justice Parkash Singh Teji, (ii) Shri Justice Inder Singh Mehta, (iii) Shri Justice Ravindra Kumar Gauba, and Smt. Justice Sangita Dhingra Sehgal, Additional Judges of Delhi High Court, to be Judges of the Delhi High Court with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

Appointments & TransfersNews

The President appointed Shri Justice Tinlianthang Vaiphei, senior-most Judge of the Tripura High Court, to perform the duties of the office of Chief Justice of that High Court with effect from the date Shri Justice Deepak Gupta relinquishes charge of the office of the Chief Justice of the Tripura High Court consequent upon his transfer as Chief Justice of the Chhattisgarh High Court.

Ministry of Law and Justice