Legislation UpdatesRules & Regulations

In exercise of powers conferred by section 29 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Central Government vide S.O. 4825(E) notified the Securities and Exchange Board of India (Terms and Conditions of Service of Chairman and Members) Amendment Rules, 2018 on 12-09-2018, to amend the SEBI (Terms and Conditions of Service of Chairman and Members) Rules, 1992, namely:-

2. In the Securities and Exchange Board of India (Terms and Conditions of Service of Chairman and Members) Rules, 1992,-

(i) in rule 3, in sub-rule (2), in the proviso for the word “Member” the words “whole-time member” shall be substituted;

(ii) In rule 19A, in sub-rule (2), the following proviso shall be inserted, namely:-

“Provided that no person shall hold office as the part-time member after he attains the age of seventy years.”

Ministry of Finance

Case BriefsForeign Courts

Constitutional Court of South Africa: Bench comprising of Cachalia, Dlodlo, Goliath and Petse, AJ., Froneman, Jafta, Khampepe, Madlanga, and Theron, JJ., confirmed two declarations of constitutional invalidity given by the High Court of South Africa, Gauteng Division.

The facts of the case are that a settlement agreement was concluded between Nxasana, former National Director of Public Prosecutions (NDPP), President Zuma, Minister of Justice and Correctional Services whereby payment was made to Nxasana if he vacated his office. Following which Abraham was appointed as NDPP. Issue before Constitution Court was to confirm if the manner in which Mr Nxasana vacated office and Abraham was appointed thereafter were constitutional compliant.

Court was of the view that independence of office of National Director of Public Prosecution (NDPP) is essential to maintain and the fact that former President Zuma wanted to get rid of Nxasana suggested by a blank check offered to Nxasana to fill any amount he wanted, why the president did not go with the inquiry and rather went for huge payment in form of a settlement agreement. Thus, independence of NDPP office was compromised as all the terms of settlement agreement was constitutionally invalid. On the same reasoning Section 12(4) and (6) of the National Prosecuting Authority Act, 1998 were also constitutionally invalidated. This led to the question of constitutional validity of Advocate Abraham’s appointment to which court concluded that if the first act is set aside, a second act that depends for its validity on the first act must be invalid as the legal foundation for its performance was non-existent. Now that the manner in which Mr Nxasana vacated office has been declared constitutionally invalid, it follows that the appointment of Advocate Abrahams is constitutionally invalid. Court though invalidated removal of Nxasana and appointment of Abraham it did not reinstate Nxasana and directed that a new person should be appointed. [Corruption Watch NPC v. President of the Republic of South Africa, [2018] ZACC 23, order dated 13-08-2018]

Case Briefs

High Court is the body which is intimately familiar with efficiency and quality of officers, fit to be promoted as District Judges

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Sunil Gaur, JJ., addressed a petition of a senior Delhi Higher Judicial Service DHJS Officer in regard to “new criteria for appointment to the position of District and Sessions Judge.”

The grievance that the petitioner placed before the Court was that her Fundamental Right to Equality has been violated due to the adoption of resolution evolving new criteria for appointment to the position of District and Sessions Judge by the Full Court of the Delhi High Court. In accordance to the criteria now there was a requirement of “A” grading in each of the previous years of ACR appraisals.

The contentions submitted by the petitioner were that pursuant to the changes in the earlier adopted 2009 Resolution concerning the appointment to the position of District and Sessions Judge, it had adversely affected the progression prospects of many Additional District Judges and now it had affected the petitioner too. Further, she alleged that she was kept in dark regarding the changes made to the resolution as it was never communicated to her. The whole move of modification would jeopardize the promotion prospects in the Higher Judicial Services and also violate Article 16 of the Constitution of India. The next contention put forward was, that Rule 27 of DHJS Rules is arbitrary and unprincipled and was unsustainable.

The High Court, concluding the matter stated above analysed both the issues placed by the petitioner. Petitioner’s grievance with respect to her lack of knowledge or not being aware was not justified and stating that “her judicial work was not up to the mark on the basis that she did not know that the best performance would result in selection of District Judge” is something not to be heard by the Court as “service in a judicial department is a mission, given the solemn nature of judging.” Therefore, the Court found no substance in any of the contentions of the petitioner and dismissed the petition by laying down a 5 pointer note to be kept in mind by the appraisal evaluation authorities, which was as follows:

  • Judicial officer concerned should be award out of 100 marks maximum.
  • 100 marks shall be done with a break up of –
  • 20% for quality of judgments.
  • 25% may be awarded for the institution/disposal ratio.
  • Maximum 20% may be awarded for the total number of final judgments delivered in the contested matters.
  • Maximum of 10% for timeliness, promptness in delivery of judgments.
  • 25% by the appraising High Court judge/committee on the basis of interaction/inspection.
  • Allowance should be given wherever the judicial officer is assigned burdensome administrative tasks.
  • No officer should be subject to appraisal of any one judge or committee for more than 2 Consecutive years.
  • Instructions to be issued to the appraising judges/committees to forward instances of outstanding or poor judgments for due consideration and input for the ACR appraisal.

The petition was disposed of on the note that the abovestated directions in respect to the formulation of criteria for uniform grading of judicial officers be suitably incorporated.[Sujata Kohli v. Registrar General, High Court of Delhi, WP (C) No. 3157 of 2015, decided on 21-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Ranjan Gogoi, R. Banumathi and Navin Sinha JJ., expressed it’s wholly unsatisfactory view on the affidavit filed by Centre on 23-07-2018 in regard to appointment of Lokpal.

During the hearing, Attorney General K K Venugopal submitted an affidavit and stated that a meeting of the selection committee was held but the names for the search committee were not finalised.

Advocate Prashant Bhushan, appearing for petitioner NGO Common Cause, said the Centre has not specified the date of the next meeting and they were actually delaying the appointment of a Lokpal despite passage of a law nearly five years ago.

In view of the dissatisfaction shown by the Supreme Court in regard to the affidavit filed, the Attorney General for India asked the Court to indicate the nature of the detailed particulars that are to be considered necessary to be incorporated in the affidavit to be filed. The matter to be listed in 4 weeks. [Common Cause v. Ajay Mittal, 2018 SCC OnLine SC 737, dated 24-07-2018]

Appointments & TransfersNews

S.O.   3325(E).— In  exercise  of the powers conferred by sub-sections (1) and (2) of Section 6 and Section 7 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government in consultation with the Chief Justice of India appointed Justice Shri Adarsh Kumar Goel, Judge of the Supreme Court of India as the Chairperson of the National Green Tribunal with effect from the date of publication of this notification  in the Official Gazette for a period of five  years or till he attains the age of seventy years, whichever is earlier.

Ministry of Environment,  Forest and Climate Change

Appointments & TransfersNews

International Court of Justice: Japanese international law professor Yuji Iwasawa was elected a Judge of the International Court of Justice, the UN’s principal judicial body on 22.6.2018. He filled the vacancy left by 85-year-old Hisashi Owada who retired on June 7. He won the votes of 184 countries of the 193 member nations in the UN General Assembly, and the support of all 15 member countries on the UN Security Council. He will serve the remainder of his predecessor’s nine-year term, which runs until 5.2.2021.
Iwasawa is currently a professor of international law at the University of Tokyo graduate school, and most recently served as chairperson of the UN Human Rights Committee. In addition to chairing the UN Human Rights Committee, he served as President of the Japanese Society of International Law, Vice-Chair of the London-based International Law Association, and as Judge and Vice-President of the Asian Development Bank Administrative Tribunal in Manila, Philippines. Iwasawa’s publications include “Domestic Application of International Law,” “Dispute Settlement in the WTO” and “Third Parties Before International Tribunals: The ICJ and the WTO.”

[Source: today.law.harvard.edu]

Appointments & TransfersNews

Shri S. Ramesh, IRS (C&CE:1981) has taken over as Chairman, Central Board of Indirect Taxes and Customs [CBIC], on superannuation of Smt. Vanaja N. Sarna today . Prior to his elevation, he was Member (Administration) in the Board.  Shri S. Ramesh began his career in Mumbai as Asst Commissioner, Central Excise and thereafter in Mumbai Customs. He has worked in various capacities in Hyderabad, Nagpur, Chennai, Trichy etc. He was the Chief Commissioner, Chennai Customs Zone from 2013 to 2016. Thereafter, he took over as Director General, Systems & Data Management. He joined the Board in September, 2016 as Member (IT, Central Excise & Service Tax).

Ministry of Finance

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 222 of the Constitution of lndia, after consultation with the Chief Justice of lndia, transferred Shri Justice Thottathil Bhaskaran Nair Radhakrishnan, Chief Justice of the Chhattisgarh High Court, as the Chief Justice of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh and directed him to assume charge of the office of the Chief Justice of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh on or before 16th July, 2018.

Ministry  of Law and Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by Article 223 of the Constitution of India, appointed Smt. Justice Meenakshi Madan Rai, senior-most Judge of the Sikkim High Court, to perform the duties of the office of the Chief Justice of the Sikkim High Court with effect from 01st July, 2018 consequent upon the retirement of Shri Justice Satish Kumar Agnihotri, Chief Justice of the Sikkim High Court.

Ministry of Law and Justice

Hot Off The PressNews

To dispose of pending consumer cases more smoothly, the Central Governement has notified a new model code of rules for appointment of Judges at various positions in consumer forums. It charts out ways by which vacancy can be filled on timely basis.

At present there are more than 5 lakh consumer disputes cases pending in India. In absence of the rules of appointment, as many as 400 vacancies have arisen due to which the pendency in consumer courts have increased.

The code also specifies that any consumer forum at any level won’t be able to keep more than 500 cases pending at a given time and necessary steps should be taken to minimise the pendency. In case average case filing goes above 1500 in a year in a district consumer forum, state government should establish an additional district court in the district. It was also laid down by the Department of Consumer Affairs that those positions that are likely to get vacant in case of retirement should be filled up immediately and this process should be completed in six months’ time in advance.

[Source: New Indian Express]

Case BriefsHigh Courts

Tripura High Court: A Division Bench comprising of Ajay Rastogi, CJ and Arindam Lodh, JJ. dismissed an intra court appeal filed against the order of learned Single Judge directing the appellant-Corporation to consider the appointment of Respondent 1 in accordance with the ‘die-in-harness’ scheme.

Husband of Respondent 1 was in service of the appellant at the time of his death. Respondent 1 filed a petition for the appointment on compassionate grounds under the die-in-harness scheme. She prayed to an appointment for either of her two children and if none of them were found eligible then in the alternative, she prayed appointment for herself. Learned Single Judge allowed her petition and directed the appellant to consider her appointment, under the scheme, considering her qualification. The appellant preferred an appeal against the order of the learned Single Judge without compliance with the above-stated direction.

While dismissing the appeal preferred by the appellant-Corporation, the High Court observed that the non-compliance of the direction passed by the learned Single Judge could not be justified. The Court further observed it to be a sorry state of affairs that the Corporation on filing writ appeal against the impugned judgment, without having any interim order, has not responded to the decision. The High Court categorically held that mere filing of an appeal along with the application for stay of the order of the learned Single Judge impugned in the writ appeal will not give an exclusive right to the appellant to sit over the order. Holding thus, and considering merits of the case, the appeal was dismissed with costs amounting to Rs. 25,000. [Tripura State Electricity Corpn. Ltd.  v. Madhabhi Debnath,  2018 SCC OnLine Tri 117, dated 20-6-2018]

 

Appointments & TransfersNews

The Central Government appointed Justice R.K. Agrawal (retired Judge of Supreme Court) as President of National Consumer Disputes Redressal Commission (NCDRC) w.e.f. date of joining the post, till attaining 70 years of age, i.e., on 04.05.2023. The appointment was in exercise of powers conferred by Section 22 E of Consumer Protection Act, 1986 read with Rule 4 and item No. (A) of column (4) of Sl. No. 16 of the Schedule of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members), Rules, 2017 along with approval of the Appointments Committee of the Cabinet, conveyed by Department of Personnel and Training.

[F. No. J-1/4/2017-CPU – S.O. 2942(E)]

Ministry of Consumer Affairs, Food & Public Distribution

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 224 of the Constitution of India, appointed (1) Shri Parth Prateem Sahu, (2) Shri Gautam Chourdiya, (3) Smt. Vimla Singh Kapoor, and (4) Smt. Rajani Dubey, to be Additional Judges of the Chhattisgarh High Court, in that order of seniority, for a period  of two years with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

Case BriefsHigh Courts

Gujarat High Court: A Division Bench comprising of M.R. Shah and A.Y. Kogje, JJ., decided a petition wherein Union of India was directed to allow compassionate appointment to the petitioner- sister of an Indian spy languishing in prison in Pakistan.

The petitioner sought appointment on compassionate grounds as per her educational qualification. Further, ex-gratia compensation of over and above Rs. 5,00,000 as awarded by the Court in earlier proceedings, was also prayed for. According to the petitioner, her brother Kuldip Yadav was recruited by Border Security Force (BSF) for Research and Analysis Wing (R&AW) military intelligence in 1991. He was deputed at New Delhi and thereafter sent to Pakistan. It was further submitted that Kuldip Yadav was arrested in Pakistan in 1994, and has been languishing in their jails, possibly at Kot Lahkpat (Lahore), since. The Respondent Union of India took a stand that it could not allow the appointment of the petitioner on compassionate grounds, as by virtue of the consolidated instructions, a compassionate appointment can be made only in the event of Government servant dying in harness or who has retired on medical grounds leaving his family without pecuniary support.

The High Court noted it to be a settled position that Kuldip Yadav was languishing in Pakistan jails in pursuance of the sentence imposed by Court Martial. However, it was denied by the Union of India that he was appointed by BSF or any other agency. The Court observed, in peculiar facts and circumstances of the case, naturally, there may not be any record available, more particularly with respect to such persons who may be appointed for secret services. The Court held that in special circumstances of the case where the brother of the petitioner is undergoing sentence in Pakistan for espionage, the instant matter required to be treated as an absolutely exceptional one and the petitioner, sister of the prisoner in Pakistan, should be appointed on compassionate grounds as per her educational qualification. The Court directed the respondents to complete the exercise within four weeks. The petition was accordingly allowed in part. [Rekha Nanakchand v. Union of India,2018 SCC OnLine Guj 1077, dated 12-6-2018]

Appointments & TransfersNews

Shri Sharad Kumar (Indian Police Service, Retd., HY:1979) has been appointed as the Vigilance Commissioner in the Central Vigilance Commission, New Delhi for a term of four years from the date on which he enters upon his office, or till he attains the age of sixty five years, whichever is earlier.

Ministry of Personnel, Public Grievances & Pensions

 

Case BriefsSupreme Court

Supreme Court: A full court, speaking through A.M. Khanwilkar, J. for himself and Dipak Misra, CJ and Dr. D.Y.  Chandrachud, dismissed an appeal filed by the Kerala Assistant Public Prosecutors Association against the decision of Kerala High Court which rejected the claim of the members of appellant association to be treated at par with Public Prosecutors in the matter of age of superannuation.

The appellant association claimed that the Assistant Public Prosecutors (APPs) who are officers of law courts should be treated at parity with Public Prosecutors in the matter of retirement age. It is worth noting that age of retirement of APPs appointed before 31st March 2013, is 56 years, while retirement age of Public Prosecutors is 60 years. Their claim was rejected by the Kerala High Court and therefore appeal was filed before the Apex Court.

The Hon’ble Supreme Court cogitated over the rival submissions of the parties and found no infirmity in the conclusion arrived at by the High Court. The concerned APPs are appointed on the advice of Kerala Public Service Commission, after clearing competitive examination. Whereas, Public Prosecutors are appointed by the Government under Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules 1978. Their method of appointment and conditions of service are different. The APPs are like any other government servants while the Public Prosecutors, appointed for a period of three years, are not government employees and do not enjoy service benefits like APPs. The Court held that merely because they perform similar functions, the APPs cannot be considered at par with Public Prosecutors to make provision for same retirement age. However, APPs were given liberty to approach the State Government to represent the alternatives as suggested by them. [Kerala Assistant Public Prosecutors Association v. State of Kerala, 2018 SCC OnLine 551, dated 17.05.2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of V.K. Tahilramani, Acting CJ, and M.S. Sonak, J. dismissed a writ petition filed challenging the order of Maharashtra Administrative Tribunal (MAT) whereby the claim of the petitioner to be appointed as a peon in the office of Deputy Conservator of Forests was dismissed.

The petitioner had applied for the said post in pursuance of the advertisement issued by the respondents. The post was for the reserved category and the petitioner belonged to the Other Backward Classes. He obtained 90 marks in the written test equal to the marks secured by Respondent 4, who was finally appointed to the said post on the basis of higher qualifications. The petitioner challenged the appointment before the MAT, which was dismissed. Feeling aggrieved, the petitioner was before the High Court.

The High Court perused Rule 4(3) of Maharashtra Civil Services (Regulation of Seniority) Rules 1982, on which reliance was placed by the petitioner. The said Rule provides that if two persons were appointed on the same date, the person with the earlier date of birth would be placed at a higher position in the seniority list. On the same analogy it was contended that in case of candidates securing equal marks, the candidate with the earlier date of birth should be appointed. The Court held the contention of the petitioner to be misconceived as much as the said Rule pertains to the matter of seniority in service and could not be applied in the matter of appointment. Holding thus, the Court found no fault in the order impugned. Accordingly, the petition was dismissed. [Yogehsh H. Mhaskar v.  State of Maharashtra, 2018 SCC OnLine Bom 1157, dated 03-05-2018]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising of Debasish Kar Gupta and Shampa Sarkar, JJ. dismissed the petition filed under Article 226 of the Constitution due to inordinate delay in filing the application thereunder.

Father of the petitioner was working for gain as a temporary employee with Respondent 3. He died in harness in 1986. The petitioner was a minor, 11 years old, at the relevant time. After four years of attaining majority, the petitioner submitted an application to Respondent 3 for appointment on compassionate grounds. However, the application was rejected and further, the appeal filed before the Administrative Tribunal was also dismissed on grounds of inordinate delay. The petitioner challenged the decision of the Tribunal in the instant petition.

The High Court perused the record and found that the petitioner was a minor at the relevant time. The Court held it to be settled law that a minor had no vested right to claim appointment at the time of the death of his father in harness. The Court also took notice of unexplained inordinate delay of over four years in submitting the application for appointment even after attaining majority. The High Court found no fault with the impugned decision of the Administrative Tribunal. Thus, the petition was dismissed. [Kamal Adhikari v.  State of W.B., 2018 SCC OnLine Cal 3394, dated 04-06-2018]

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 224 of the Constitution of India appointed Kumari  P.T. Asha, S/Shri M. Nirmal Kumar, Subramonium Prasad, N. Anand Venkatesh, G.K. Ilanthiraiyan, Krishnan Ramasamy, and C. Saravanan, to be Additional Judges of the Madras High Court, in that order of seniority, for a period of two years with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice