Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI), Mumbai: The whole-time Member of SEBI, Madhabi Puri Buch addressed the issue of whether there was any prima facie suspicion or evidence of financial misrepresentation and misuse of books of accounts by the company in question.

Parsvnath Developers Ltd. (PDL) mentioned themselves as one of the largest real estate development companies in Northern India involved in development and construction of real estate projects. SEBI, on the basis of a letter by Ministry of Corporate Affairs where list of shell companies were provided, viewed these shell companies as potentially involved in misrepresentation and misuse of books of account. PDL was also in that list.

The Board asked for various documents as an evidence of work taken up by the company and saw a possible violation of SEBI (Listing Obligation and Disclosure Requirements) Regulation, 2015. Board noted that PDL had failed to show commencement certificates for any work of contract and sub-contract carried by it which suggested that the revenue of the company has been overstated as no evidence to show completion of work was provided. Company also failed to provide evidence of execution of contracts undertaken by the company or given to other companies.

Therefore, the board was of the view that in the interest of investors, the company’s finances should be independently audited. Under Sections 11, 11(4), 11-A and 11-B read with Section 19 of the Securities and Exchange Board of India Act, 1992, the Board directed the exchange to appoint an independent forensic auditor. Board concluded that the company was on suspicion of misusing the books of accounts and misrepresentation of financials/business of the Company. [Parsvnath Developers Ltd. In Re, WTM/MPB/ISD/ 32 /2018, interim order dated 08-08-2018]

Appointments & TransfersNews

Lady Justice Arden DBE and Lord Justice Kitchin will join the Supreme Court of the United Kingdom as Justices on 1 October 2018, followed by Lord Justice Sales on 11 January 2019, as was announced on June 27, 2018.

Her Majesty The Queen made each of the appointments on the advice of the Prime Minister and Lord Chancellor, following the recommendations of an independent selection commission. The commission consulted across each of the Supreme Court’s three UK jurisdictions before making its recommendations.

These appointments follow the retirement of Lord Mance, former Deputy President of the Court, in June 2018. Lord Hughes and Lord Sumption are due to retire in August and December 2018 respectively.

[Source: UK Supreme Court News Release]

Case BriefsSupreme Court

Supreme Court: In the issue relating to filling up of 4010 vacancies in the State of Uttar Pradesh, consisting of 3698 vacancies for Sub-Inspectors and 312 vacancies for Platoon Commanders, the 3-judge bench of Madan B. Lokur, Kurian Joseph and Deepak Gupta, JJ directed that the vacancies should be filled up by the State of Uttar Pradesh expeditiously on merits, if not already filled up.

The State had submitted before the Court that due to orders passed from time to time by this Court, perhaps more than 4010 posts have been filled up. The Court, hence, directed that the persons occupying posts in excess of 4010 shall not be disturbed until further orders from this Court.

Regarding the question as to whether the persons who have been appointed in excess of 4010 Posts are to continue or their services may be dispensed with, the Court said that it will pass the appropriate orders only after hearing the parties.

The Court also took note of it’s order dated 14.09.2017 in which it was noted that all those persons who are before this Court on the ground that they were before the High Court on or before 31st December, 2016 either as petitioners or intervenors may submit their particulars to learned Additional Advocate General who will verify the particulars and submit a report before 31st October, 2017. The Court, hence, made clear that following the order passed on 14.09.2017, all applications for intervention/impleadment, etc. or fresh matters instituted after the cut-off date of 31st December, 2016 stand disposed of. [Alok Kumar Singh v. State of U.P.,  2018 SCC OnLine SC 309, order dated 22.03.2018]

Case BriefsHigh Courts

Tripura High Court: While deciding upon the present writ petition wherein the petitioner’s appointment in Group- D post was cancelled by the respondents (High Court of Tripura) on the ground of an FIR registered against him, the Division Bench of Ajay Rastogi, C.J., and S. Talapatra,J., held that the FIR once registered has been quashed by the Court under Section 482 of Cr.PC, no inference can be drawn to impute any adverse antecedents which in any manner may deprive an individual from seeking public employment.

As per the facts, the petitioner was duly selected in Group D post. However the petitioner’s selection was cancelled owing to the fact that an FIR was registered against him under Sections 3,4,5,6(2)(4) & 7 of the Immoral Traffic (Prevention) Act, 1956. Th petitioner challenged the FIR and it was subsequently quashed by this Court in exercise of its powers under Section 482 of CrPC. Yet even after the quashment, the respondents refused to consider the petitioner’s appointment on the ground that his conduct does not generate confidence for employment in the service of the High Court. The petitioner argued that there was no misrepresentation on his part and the FIR against him was a result of false implication; and once this Court has quashed the FIR, the petitioner had a clean record again. Therefore there was no ground upon which he could be denied employment. The petitioner via his counsel Raju Datta, contended that the act of the respondents in rejecting the petitioner’s employment, was arbitrary, therefore it demands judicial interference. Counsel for the respondents contended that mere selection and offer of appointment does not confer any vested right and the decision of the authority cannot be said to be per se arbitrary.

Upon perusal of the issue and facts, the Court observed that Rule 9 of High Court of Tripura Services (Appointment, Conditions of Service and Conduct) Rules, 2014 prescribe certain disqualifications for appointment and sub-rule (c) of Rule 9 clearly envisages that if one has been convicted of an offence involving moral turpitude could be a reason for disqualification for appointment. However in the present case, the FIR was found to be fabricated, hence quashed. Other than the quashed FIR, there is no criminal history of the petitioner which could render him disqualified for public employment. The Court thus directed the respondents to not to draw any adverse inference to implicate the petitioner, and consider his candidature for appointment in Group D post. [Tapas Chakraborty v. High Court of Tripura, 2018 SCC OnLine Tri 57, decided on 10-04-2018]

Case BriefsSupreme Court

Supreme Court: In the light of serious irregularities in the selection process of appointment of assistant teachers in government lower primary schools, the Bench of AK Goel and RF Nariman, JJ directed that for the purity of selection to the public posts, as far as possible the selection process conducted by the selection bodies, especially the State Public Service Commissions and the State Selection Boards, is videographed.

Directing the Registry to send a copy of the order to Department of Personnel and Training (DoPT), Ministry of Personnel, Public Grievances and Pensions, for being forwarded to the concerned authorities for compliance, the Bench further directed:

“at examination centres as well as interview centres CCTV cameras should be installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned.”

The Court gave the said order when the irregularities in the State of Meghalaya was brought to it’s notice. The Court noticed that such incidents were being reported in several cases as it had recently dealt with such a matter in Avinash C. v. State of Karnataka, 2018 SCC OnLine SC 330, decided on 4.4.2018. [State of Meghalaya v. Phikirba Khariah, 2018 SCC OnLine SC 336, order dated 06.04.2018]

Case BriefsHigh Courts

High Court Of Uttaranchal: A Division Bench comprising of  U.C. Dhyani and  Sudhanshu Dhulia, JJ. dismissed a challenge against the appointment of State Chief Information Commissioner. The main challenge in the petition was that the office of the State Chief Information Commissioner has become the ‘dumping ground’ for retired bureaucrats, who are rewarded for their loyalty to the State Government.

The question posed in the writ petition is – whether the state government can defy the mandate of the Union legislature and the spirit of the RTI Act by appointing Chief Information Commissioner to favour certain officers, who have retired, or are due to retire in the near future?

The contention put up by the petitioner is that according to Section 15(1) of RTI Act, the requirement of the appointment of a retired bureaucrat is not a necessity, rather it prescribes the requirement is of a person shall be eminent in public life with wide knowledge and experience in particular field.

Further, it has been stated by the Hon’ble Court, that, Court cannot sit in judgment over the wisdom of the government in the choice of person to be appointed as long as the person satisfies all the eligibility criteria along with the process prescribed. Therefore, it has been observed by the court that the writ of quo Warranto cannot be issued unless there is a clear violation of law and here clearly the appointment has is not contrary to the statutory rules.

Concluding the judgment, the Hon’ble Court while agreeing to the submission of the learned counsel for the petitioner in the matter of appointments to higher echelons, fairness should be the hallmark of selection, it does not find any illegality or irregularity in the appointment of the State Chief Information Commissioner, it also hoped that in the future, the persons of eminence will be drawn from these walks of life also. [Chandra Shekhar Kargeti v. State Of Uttarakhand; 2018 SCC OnLine Utt 29, order dated 10-01-2018]

Case BriefsSupreme Court

Supreme Court: The bench of Madan B lokur and Deepak Gupta, JJ directed the Executive in all the States to frame appropriate guidelines or recruitment rules within six months, considering the institutional requirements of the State Pollution Control Boards (SPCBs) and the law laid down in the Statutes, by this Court and as per the reports of various committees and authorities and ensure that suitable professionals and experts are appointed to the SPCBs.

The Court was hearing the appeal against the decision of the National Green Tribunal where it was held that the necessary expertise or qualifications to be members or chairpersons of such high powered and specialized statutory bodies and therefore did not deserve their appointment or nomination. The Court, agreeing with the reasoning of the Tribunal, set aside the order as the Tribunal had exceeded its jurisdiction in directing the State Governments to reconsider the appointments and in laying down guidelines for appointment to the SPCBs.

The Court referred to a number of recommendations of various committees, the laws laid down in various Statutes and Judgements and said:

“All these suggestions and recommendations are more than enough for making expert and professional appointments to the SPCBs being geared towards establishing a professional body with multifarious tasks intended to preserve and protect the environment and consisting of experts. Any contrary view or compromise in the appointments would render the exercise undertaken by all these committees completely irrelevant and redundant.”

The Court, noticing that notwithstanding all these suggestions, recommendations and guidelines the SPCBs continue to be manned by persons who do not necessarily have the necessary expertise or professional experience to address the issues for which the SPCBs were established by law, said that the concern is not one of a lack of professional expertise, but the lack of dedication and willingness to take advantage of the resources available. It further said:

“With this couldn’t-care-less attitude, the environment and public trust are the immediate casualties.”

The Court said that any damage to the environment could be permanent and irreversible or at least long-lasting and

“unless corrective measures are taken at the earliest, the State Governments should not be surprised if petitions are filed against the State for the issuance of a writ of quo warranto in respect of the appointment of the Chairperson and members of the SPCBs.”

The Court left it open to public spirited individuals to move the appropriate High Court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as a Chairperson or a member of any SPCB or is presently continuing as such. [Techi Tagi Tara v. Rajendra Singh Bhandari, 2017 SCC OnLine SC 1165 , decided on 22.09.2017]

 

Hot Off The PressNews

Supreme Court: Hearing the petition challenging the appointment of the incumbent CVC, K V Chaudhary, and vigilance commissioner (VC) T M Bhasin on ground that they did not have “clean record” and a non-transparent procedure was followed while appointing them, the bench of Arun Mishra and M M Shantanagoudar, JJ said that it would not go into the aspect of “political favouritism” but only examine whether a person appointed to the posts of central vigilance commissioner and vigilance commissioners met the criteria of having “impeccable integrity”.

Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, alleged that despite several representations against KV Chaudhary, the government appointed him as the CVC as he was their “favoured candidate”. To this, the Court said that the question before it was of impeccable integrity and not political favouritism.

Attorney General K K Venugopal told the Court that the decision taken by the selection committee comprising the Prime Minister, the Home Minister and the Leader of Opposition was unanimous. On the allegations, he said that all these aspects were considered and discussed by the committee before arriving at a decision and the inquiries as alleged by the petitioner were “closed” after deliberation. He also placed before the court the files relating to the procedure and discussions by the committee on the issue of appointment of the CVC and VC.

The Court asked Attorney General to go through the files before arguing the matter has listed the matter for hearing on 07.09.2017.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Dealing with an important question as to whether the process of appointment of a principal in minority institution is open to judicial review, the bench of A.K. Goel and U.U. Lalit, JJ, held that while under the constitutional scheme, a “minority institution” is free to select and appoint a principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution.

In the present case, where a person junior to the appellant, who was appointed as Incharge-Principal, in the absence of regular principal, was appointed to the post of principal of a minority institution, the Court said that the minority institution may not be compelled to go by seniority alone but it must follow a criterion which is rational.

Stating that the grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice, the Court said that the exercise of right of choice has to be fair, non-discriminatory and rational. The Autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. [Ivy C. da. Conceicao v. State of Goa, 2012 SCC OnLine Bom 1040 , decided on 31.01.2017]

Case BriefsSupreme Court

Supreme Court: In the PIL relating to lack of basic amenities in the Bandipora District Court affecting the proper functioning of Courts where the issue of regularization of employement by the High Court was in question the Court laid down the following principles:

  • Article 235 enables the High Court to exercise complete administrative control over the district judiciary which extends to all functionaries attached to those courts, including ministerial staff and employees on the establishment.
  • Employment in the High Courts or in the courts subordinate to them constitutes public employment.
  • The date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision.
  • While the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the rules framed in making recruitments.

Explaining the concept of regularization, the Court said that it is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the Scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc Employee the right to seek a writ commanding the State to frame a scheme for regularisation.

The High Court of Jammu & Kashmir had, by order dated 01.12.2015, had observed that over a considerable period of time the state government had not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.

The bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ, noticing that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles, said that it is unfortunate that the state government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis. [State of Jammu & Kashmir v. District Bar Association, Bandipora, 2016 SCC OnLine SC 1435, decided on 08.12.2016]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of T.S. Thakur, CJ and A.M. Khanwilkar and D.Y. Chandrachud, JJ dismissed the PIL challenging the Centre’s policy to allow private bank officials to be appointed as Managing Directors or CEOs of public sector banks.

It was contended that only whole-time directors of public sector banks, whose names are cleared by the Central Vigilance Commission, can be appointed to head public sector banks and that eligibility criteria for the posts of CEO and MD of the five banks have been set with a sole objective to make all existing executives directors of Public Sector Banks ineligible.

The Court rejected the said petition and said that there was nothing wrong with such appointments.

Source: Business Standard

Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding upon the challenge to the appointment of 21 Parliamentary Secretaries by the Government of Punjab, the Division Bench of S.S. Saron and Ramendra Jain, JJ., quashed the appointments made by the State Government observing that the appointments had been made in contravention to the provisions of Article 164(1A) of the Constitution and therefore invalid.

The present petitions filed by two public spirited advocates, drew the attention of the Court towards the disputed appointments via the Punjab Parliamentary Secretaries and Chief Parliamentary Secretaries (Terms and Conditions of Appointment) Rules, 2006. The petitioners contended that the total strength of the Ministers including the CM, should not exceed the limit of 15% of the total numbers of MLAs of a State, as mandated by the Constitution (Ninety-first Amendment) Act, 2003. The petitioners contended that these Parliamentary Secretaries have become de-facto ministers and a burden over the State exchequer. On the contrary, the respondents contended that the post of Parliamentary Secretary is not a constitutional post; therefore an appointee to the same cannot be termed as a Minister and they are but mere a channel to connect the Administrative Secretary of the State Govt. and the Minister.

Perusing the rival contentions, the Court observed that the 91st Constitutional Amendment, 2003 was brought in to impose a ceiling on the number of Ministers in a House. The Court also observed that the validity of the appointments will have to be interpreted in the light of the Constitutional Amendment and in a way which does not negate the effect of the Amendment. The Court therefore stated that by appointing the Parliamentary Secretaries, the Govt. tried to ‘achieve indirectly what it could not achieve directly’ as their functions, perks and facilities were like that of any Minister, in other words, they were appointed as Junior Ministers. The Court further stated that the Governor of the State or the legislature has no competence or legislative sanction to frame rules regulating the conditions of appointment and services of Parliamentary Secretaries for their functioning within the House of the State Assembly. Such posts are not part of regular services of the State under the executive. The Court further pointed out that the appointments of Parliamentary Secretaries are contrary to the Constitutional intent of limiting the number of Ministers or the size of the Cabinet, in other words the State Govt. has sought to bypass the Constitutional mandate of the provisions of Article 164 (1A) of the Constitution. [Jagmohan Singh Bhatti v. Union of India, 2016 SCC OnLine P&H 638, decided on 12.08.2016]

 

Appointments & Transfers

On 12.06.2015, the President of India on the advice of the Chief Minister of the National Capital Territory of Delhi, accepted the resignation of Shri Jitender Singh Tomar, Law Minister in the National Capital Territory of Delhi, and appointed Shri Kapil Mishra as a Law Minister in the National Capital Territory of Delhi, with effect from the date he is sworn in.

-Ministry of Home Affairs

Appointments & Transfers

On 08.06.2015, Shri Vijai Sharma, Information Commissioner in the Central Information Commission (CIC), New Delhi, was appointed as the Chief Information Commissioner for a term of five years from the date on which he will take charge upon his office or till he attains the age of 65 years, whichever is earlier.

 

-Ministry of Personnel, Public Grievances & Pensions

Appointments & Transfers

On 12.05.2015, the President appointed following as Governors:

  • Shrimati Droupadi Murmu as the Governor of Jharkhand; 
  • Shri J.P. Rajkhowa as the Governor of Arunachal Pradesh; 
  • Shri Tathagata Roy as the Governor of Tripura; 
  • Shri V. Shanmuganthan as the Governor of Meghalaya; 
  • Lt. General (Retd.) Nirbhay Sharma, Governor of Arunachal Pradesh is transferred and appointed as Governor of Mizoram for the remainder of his term; and
  • Dr. Syed Ahmed, Governor of Jharkhand is transferred and appointed as Governor of Manipur for the remainder of his term. 

The above appointments will take effect from the dates the incumbents assume charge of their respective offices. 

Appointments & Transfers

Subject to the demission of Shri Harishankar Brahma, the Chief Election Commissioner on 18-04-2015, the President of India appointed the senior-most Election Commissioner, Dr. Nasim Zaidi as the new Chief Election Commissioner in the Election Commission, who will assume the charge of office with effect from 19-04-2015.

-Ministry of Law & Justice