Appointments & TransfersNews

Dr A.K. Mohanty, distinguished Scientist and Director, physics group of the Bhabha Atomic Research Centre (BARC) and Director, Saha Institute of Nuclear Physics, Kolkata, took over as Director, BARC on 12-03-2019 from Shri K.N. Vyas, Chairman, Atomic Energy Commission and Secretary to the Government of India, Department of Atomic Energy.  Dr Mohanty graduated from the 26thbatch of the BARC Training School and joined the Nuclear Physics Division of Bhabha Atomic Research Centre in 1983.  During the past 36 years, Dr. Mohanty has worked in several areas of nuclear physics covering collision energy from sub-Coulomb barrier to the relativistic regime.

Dr Mohanty is the recipient of Young Scientists Award of Indian Physical Society (1988), Young Physicist Award by Indian National Science Academy (1991) and Department of Atomic EnergyHomi Bhabha Science & Technology Award (2001).

While taking over as Director-BARC, Dr Mohanty has expressed gratitude towards his predecessors in Physics Group who have helped him in understanding finer nuances of low and high energy nuclear physics. He also gratefully acknowledged the efforts put in by his seniors which have helped in the completion of projects of national and international importance in which he could contribute, and said he is committed to continue further the work of BARC in the fields of societal importance.

Ministry of Science & Technology

Appointments & TransfersNews

Proposal for appointment of following six Additional Judges of the Madras High Court, as Permanent Judges of that High Court:

1. Mrs Justice V. Bhavani Subbaroyan
2. Mr Justice A.D. Jagadish Chandira
3. Mr Justice G.R. Swaminathan
4. Mr Justice Abdul Quddhose
5. Mr Justice M. Dhandapani and
6. Mr Justice P.D. Audikesavalu

The Committee constituted in terms of the Resolution dated 26th October, 2017 of the Supreme Court Collegium to assess the Judgments of the above-named recommendees, has submitted its report.

In view of the above, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ.,  resolved to recommend that (1) Mrs. Justice V. Bhavani Subbaroyan, Mr. Justices (2) A.D. Jagadish Chandira, (3) G.R. Swaminathan, (4) Abdul Quddhose, (5) M. Dhandapani, and (6) P.D. Audikesavalu, Additional Judges, be appointed as Permanent Judges of the Madras High Court.

Collegium Resolutions

[Dated: 11-03-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for appointment of following six Additional Judges of the Patna High Court, as Permanent Judges of that High Court:

1. Mr Justice Anil Kumar Upadhyay
2. Mr Justice Rajeev Ranjan Prasad
3. Mr Justice Sanjay Kumar
4. Mr Justice Madhuresh Prasad
5. Mr Justice Mohit Kumar Shah and
6. Mr Justice Prakash Chandra Jaiswal

The Committee constituted in terms of the Resolution dated 26th October, 2017 of the Supreme Court Collegium to assess the Judgments of the above-named recommendees, has submitted its report.

In view of the report, the Collegium comprising of Ranjan Gogoi, CJ and S. A Bobde and N.V. Ramana, JJ., resolved to recommend that Mr Justices (1) Anil Kumar Upadhyay, (2) Rajeev Ranjan Prasad, (3) Sanjay Kumar, (4) Madhuresh Prasad, (5) Mohit Kumar Shah, and (6) Prakash Chandra Jaiswal, Additional Judges, be appointed as Permanent Judges of the Patna High Court against the existing vacancies.

Collegium Resolutions

[Dated: 11-03-2019]

Supreme Court of India

Case BriefsHigh Courts

Madhya Pradesh High Court: A petition was filed before the Bench of Sheel Nagu, J., where petitioner was aggrieved and alleged that post on which the petitioner was working on contractual basis under the National Rural Health Mission Scheme was abolished or declined to be continued further.

National Rural Health Mission scheme was funded 80% by the Central Government and 20% by the State Government, certain posts were created against which the petitioner was appointed.  It was further not disputed that the contractual services were extended repeatedly till the impugned decision was taken to discontinue the post from the financial year 2016-17. Meaning thereby that no administrative and budgetary sanction was available for the post held by the petitioner. Case of Shyam Kumar v. Public Health and Family Welfare Department, 2016 SCC OnLine MP 8130  was referred to.

High Court found no reason to interfere with the impugned order as the petitioner was working on a contractual basis and was given time period till his contract was over and thereafter the post was discontinued by the Government. Therefore, this petition was dismissed with the observation that as and when the future appointment of a similar nature takes place then preferential treatment would be given to the legitimate candidature of the petitioner. [Sandhya Dubey v. Union of India, WP No 2837 of 2016, Order dated 07-03-2019]

Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a petition seeking to quash the orders and further make the petitioner entitled to the post of the Principal.

In the present matter, the petitioner was appointed as an ad-hoc lecturer along with the respondent. Although both were appointed on the same day but the petitioner joined a day prior to the respondent. Also, both were regularized as lecturers on the same day after seven years. The petitioner hence claimed that, since the respondent joined late, therefore that would make him junior and the petitioner senior to him.

The same was rejected by the learned Single Judge placing due weightage on Rule 33-C (3) (b) of the Uttar Pradesh Secondary Education Service Commission (Amendment Act), 1998, and further held that the respondent being older in age, was entitled to seniority.

The Court rejected the petition on two grounds; the fact that the employee could not join on the date when he is required to, cannot act as a detriment. And secondly, the usage of the word “appointment” and not “joining” in clause (a) of Section 33-C (3), which provides for seniority in terms of age, made the respondent entitled to his seniority, thus granted by the learned Single Judge.[Deen Bandhu Singh Rawat v. State of Uttarakhand, 2019 SCC OnLine Utt 131, Order dated 27-02-2019]

Case BriefsSupreme Court

Supreme Court: The bench of Arun Mishra and Vineet Saran, JJ disposed of a plea challenging the appointment of M. Nageshwar Rao as the interim CBI Director and said no further interference is required as the relief has already been granted with the appointment of a full time CBI Director. It said:

“In case the due process has not been followed in the appointment, it is always open to any incumbent, if so advised, to question the appointment in accordance with law but not in the routine manner and undue haste as shown in the petition.”

It was argued by the petitioner that the appointment of M. Nageshwar Rao as interim CBI Director was not made on the recommendations of the High-Powered Selection Committee. The committee was completely bypassed and had no role in the appointment of M. Nageshwar Rao thereby rendering the appointment as illegal as it is in violation of the procedure for appointment of Director, CBI under Section 4A of the Delhi Special Police Establishment Act, 1946.

The Court, however, held that the decision of the committee under Section 4A that the Government was authorised to post a suitable officer as interim Director due to the vacancy caused by shifting of Mr. Alok Verma. Thus, the aforementioned submission was totally misconceived and petitioners have failed to verify the aforesaid facts and the petition has been filed in undue haste without verifying the   fact   whether   the   appointment   has   been   authorised   by   the Committee for appointment of Director constituted under section 4A of the DSPE Act.

After advocate Prashant Bhushan made some comments on Twitter regarding the appointment of former interim chief of CBI M Nageswara Rao, the Attorney General KK Venugopal and consecutively, the Union of India have filed a contempt petition in the Supreme Court. The Bench hence, issued notice to advocate Prashant Bhushan and the said contempt petition will be heard separately.

Three judges of the Court i.e. Chief Justice Ranjan Gogoi, Justices A K Sikri and N V Ramana, had recused themselves from hearing the matter.

Background of the matter:

  • NGO Common Cause had sought specific mechanisms to ensure transparency in the process of appointing the CBI director. The plea had alleged that the October 23 last year order of the government appointing Rao as interim CBI director was quashed by the top court on January 8 but the Centre “acted in a completely malafide, arbitrary and illegal manner” to appoint him again in “complete contravention” of the Delhi Special Police Establishment Act.
  • On January 10, Rao, additional director in CBI, was made interim chief till the appointment of a new director, after the removal of Verma.
  • On February 4, Rishi Kumar Shukla, a 1983-batch IPS officer, took charge of the probe agency as a full-fledged director.

[Common Cause v. Union of India, 2019 SCC OnLine SC 232, decided on 19.02.2019]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of S. Muralidhar and Sanjeev Narula, JJ. addressed a petition concerning the aggrieved not being offered appointment in spite of clearing the required stages of the selection process.

In the present case, a recruitment notification was issued for various posts including that of ‘Chowkidar’ for which the petitioner had applied. Petitioner had cleared the examination successfully and on clearing the same he was asked to produce the relevant documents for verification. Petitioner after a long wait had sent out a legal notice on not receiving the appointment letter. Later, the petitioner was informed that fresh recruitment process would be initiated shortly due to ‘procedural anomalies’. All of the stated facts and circumstances led the petitioner to file the present petition.

Learned counsel for the petitioner, Abhishek K. Choudhary stated that petitioner is on the top of the merit list and had successfully qualified for the post of ‘Chowkidar’ and in respect of respondent’s reasoning for the cancellation of the entire selection process which also included non-holding of a typing test was of no relevance in the petitioner’s case.

Therefore, the High Court on considering the submissions of both the parties concluded by a reasoned order, stating that, “none of the discrepancies as noted from the internal communication appear to justify cancelling petitioner’s candidature.” In fact, the petitioner had provided required certificates/documents and he was not one of those candidates who misled in regard to the eligibility and number of vacancies.

Further, the Bench also relied on and cited two of the Supreme Court’s decision relevant to the present case, i.e. – Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673 in which it was held that “en masse cancellation was worse than the problem.” The other decision was of Joginder Pal v. State of Punjab, (2014) 6 SCC 644, where it was stated by the Apex Court that “importance of segregating the tainted candidates from the untainted ones and not en masse cancel the entire selection.”

Therefore, the High Court while setting aside the respondent’s decision of cancelling the petitioner’s candidature gave direction for the appointment of the petitioner as the ‘Chowkidar’. The petition was allowed in the above-stated terms. [Ravinder Sirohi v. Union of India, 2019 SCC OnLine Del 7041, Order dated 14-02-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The 2-Judge Bench comprising of S.K. Seth, CJ and Vijay Kumar Shukla, J. gave an order in pursuance of a challenge made to an order passed wherein the selection of petitioners for appointment on the post of District Judge (Entry Level) has been cancelled.

In the present case, the petitioners were selected for the appointment on the post of District Judge (Entry Level) pursuant to the process of selection conducted by the High Court for M.P. Higher Judicial Service (Entry Level) Direct Recruitment from Bar, Examination 2017 was cancelled.

According to the contentions placed, it has been stated that the petitioner was included in the final select list under the “unreserved category” candidates. However, by the impugned order the name of the petitioner was deleted. Further, on the basis of the information received under RTI Act, it was revealed that the selection cancelled was due to the pendency of a criminal case under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Mr K.C. Ghildiyal, Advocate for the petitioners submitted that after the decision by the committee, charge in the pending criminal case had been quashed by the High Court in Deep Narayan Tiwari v. State of M.P., Criminal Appeal No. 5351 of 2018 , in which it was stated that “ he has been discharged from the offence under Sections 506 and 385 of the Penal Code, 1860 and under Sections 3(1)(r) read with 3(2)(v)(a) of Atrocities Act, 1989.”

Further the point to be noted in the present case in regard to the pendency of the criminal cases is that, the meeting of the committee in which the petitioner was discharged of the charges was held on 18-07-2018, whereas the order of the High Court in Deep Narayan Tiwari v. State of M.P., Criminal Appeal No. 5351 of 2018, was passed on 10-08-2018, which clarifies the point that on the date of appointment of the petitioners, the criminal cases were still pending against them.

“Mere selection would not confer any right as appointment is always subject to character verification of a selected candidate”.

Reliance was placed on by the High Court on State of M.P. v. Abhijit Singh Pawar, 2018 SCC OnLine SC 2555, in which Supreme Court held that: an employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition. Next in the case of Ashutosh Pawar v. High Court of M.P., 2018 (2) MPLJ 419, “a question was referred- whether acquittal in criminal cases is proof of good conduct.”

Thus taking into consideration the decisions as stated above on which the bench placed its reliance, held that there is no merit in the present writ petitions due to which they are to be dismissed. [Deep Narayan Tiwari v. State of M.P., 2018 SCC OnLine MP 967, Order dated 11-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Nilu Agrawal, J. while hearing a civil writ petition ruled that the date of appointment of an employee is the date when he is incorporated into the cadre of his service, and not the date of advertisement under which he was employed.

The instant petition was filed seeking quashing of order by which petitioner was communicated that he was going to superannuate under the New Pension Scheme. In pursuance to Advertisement No. 01 dated 23-11-2004, petitioner had applied for the post of 4th grade employee, but his appointment could be made only on 06-12-2007.

Petitioner’s contention was that since the advertisement, under which he was recruited, pertained to the year 2004, old rules would be applicable to him and he could not be treated to be covered under the New Pension Scheme, which was effective with effect from 01-09-2005.

Counsel on behalf of the respondent submitted that since the petitioner was appointed in the year 2007 and the New Pension Scheme came into force in 2005, he would automatically be covered under the New Pension Scheme.

The Court observed that it had been held by a number of decisions of this Court as well as the Apex Court that the date of appointment of an employee would be the date when he is incorporated in the cadre. Therefore, it was held that as the petitioner was appointed in the year 2007, he could not have claimed the benefit of Old Pension Scheme. Thus, the petition was dismissed.[Arun Kumar Verma v. State of Bihar, 2018 SCC OnLine Pat 2178, decided on 07-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Anil Kumar Upadhyay, J. quashed an office order denying payment of salary to the aggrieved petitioner whose appointment was disputed.

In the present matter, appointment of the petitioner as a teacher and his counseling by the District Teachers Employment Appellate Authority was under cloud. The Appellate Authority, on consideration of the entire facts, directed employment unit to take steps to ensure counseling of the petitioner. However, petitioner’s claim for payment of his salary was rejected on the ground that legality and validity of his appointment was under dispute. Hence, the instant petition.

The Court observed that as the petitioner was regularly working for respondent and they were taking benefit of his work, therefore he was entitled to his full salary. At the highest, on the basis of Appellate Authority’s observations, respondents might take an appropriate decision; but without taking any such decision against the petitioner, denial of his salary was impermissible. It was noted that there was no finding as to the invalidity of petitioner’s appointment. In view thereof, the petition was allowed directing the respondents to pay arrears of salary to the petitioner for the period that he had actually worked until a further decision as to the validity of his appointment is was reached. [Akhilesh Pandey v. State of Bihar, 2018 SCC OnLine Pat 2160, decided on 03-12-2018]

Case BriefsHigh Courts

Allahabad High Court: This writ petition was filed before a Single Judge Bench of Ashwani Kumar Mishra, J. against an order where respondent was granted appointment on compassionate ground.

Facts of the case were that respondent was the son of the first wife of deceased who was employed as a Class-IV employee in the Junior High School. Respondent was given appointment on compassionate ground whereby respondent had undertaken to take care of the petitioners also. The grievance of petitioner was that he should have been the one to be appointed. Petitioner contended that respondent had not extended any benefit to petitioner and failed to keep his commitment of taking care of other family members. Court observed that the deceased died in the harness and respondent was his heir thus the appointment of respondent on compassionate grounds was not in question and the order passed by District Basic Education Officer approving his appointment did not suffer from any illegality.

High Court viewed that by virtue of Rule 7 of the Rules of 1974 the order was made with the purpose of casting an obligation upon the person, who was appointed to support other family members. If respondent had failed to adhere to his commitment the benefit given to him could be taken away. Therefore, the direction was given to consider the application of the petitioner. [Yashoda Devi v. State of U.P.,2018 SCC OnLine All 2867, order dated 26-11-2018]

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench comprising of Ajay Kumar Tripathi, CJ. and Parth Prateem Sahu, J. declared that being an informed decision on the part of the appellant refrains him on refuting it at a later stage.

The appellant has preferred an appeal on the refusal of a direction to appoint him for the post of ASI (Ministerial).

His father was working in the armed forces and after his death, the appellant’s grant of compassionate appointment was considered. But due to the availability of posts and a certain weightage bestowed upon dependants of people dead in Naxal violence, instead of the post appealed for he was granted the post of Constable (General Duty). Accordingly, he was given an option to either accept or refuse the decision to which the appellant gave an acceptance and subsequently after his joining in the year 2017 he filed for his reappointment for a higher post.

The Court took into consideration the fact that he was not the only one treated in the above matter and thus the issue of arbitrariness was out of question also once a person accepts appointment on compassionate ground, he cannot demand or beget any change on the post or position which he had been offered by way of compassionate appointment.

Accordingly, the appeal was dismissed.[Deepak Kumar Singh v. State of Chhattisgarh,2018 SCC OnLine Chh 655, order dated 15-11-2018]

 

Case BriefsSupreme Court

Supreme Court: A Bench comprising of Uday U. Lalit and Dr D.Y. Chandrachud, JJ. allowed an appeal filed against the judgment of the Madhya Pradesh High Court whereby the State was directed to appoint the respondent on the post concerned in case his name found a place in the merit list.

In 2012, the Professional Examination Board, Madhya Pradesh invited applications for filling posts of subedars, platoon commanders and inspectors of police. The respondent participated in the selection process and tendered an affidavit as per the requirements wherein he disclosed that a case under Sections 323, 325, 506 and 34 IPC was registered against him which was pending on the date of such disclosure but he was never arrested. However, within 4 days thereafter, a compromise was entered into between the parties. Still, further, the respondent was taken into judicial custody on forfeiture of bond for non-compliance. The respondent was selected in the written examination; however, after considering his character verification report, his candidature was rejected. The respondent filed a writ petition there against which was allowed by a Single Judge and further affirmed by the Division Bench of the High Court. Aggrieved thereby, the State preferred the instant appeal.

While deciding the matter, the Court referred to, inter alia, Avtar Singh v. Union of India, (2016) 8 SCC 471. In the present case, it was held that even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt. Following the Avtar Singh case, the Court held that the employer, in instant circumstances, could not be compelled to appoint the respondent. Therefore, the appeal was allowed and the judgment impugned was set aside. [State of M.P. v. Abhijit Singh Pawar,2018 SCC OnLine SC 2555, decided on 26-11-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of Uday U. Lalit and R. Subhash Reddy, JJ. allowed an appeal filed against the judgment of the Allahabad High Court whereby it directed the appellant-Commission to send the names of requisite number of candidates to the Director of Education (Basic).

In 2006, process for selection of 178 Sub-Deputy Inspector of Schools was initiated in the State of U.P. After completion of the selection process, in 2010, results were declared and recommendation was made by the Commission to the Government in respect of selected candidates. It is pertinent to note that in its first recommendation, the Commission had given names of 156 candidates, and other names were provided in subsequent recommendations. After receipt of recommendations, the State Government issued appointment letters; however, 7 of the candidates did not join and their candidature was cancelled. in 2013, the Director requested the Commission to send names of 7 candidates in order of merit, which request was turned down by the Commission. Aggrieved thereby, the respondent filed a writ petition before the High Court which was allowed and the Commission was directed as aforesaid. Challenging the said judgment, the Commission preferred the instant appeal.

The Supreme Court perused the entire record including the policy documents as submitted by the Commission. the Court found favour with Commission’s submission that the recommendation was mainly forwarded by it on 12-08-2010 and the waitlist was to operate for a period of one year. the said request was made after almost 3 years and thus turned down. Per contra, the respondent had submitted that the period of operation of the waitlist would be counted from the date of the latest recommendation. After perusing the Government Orders relevant to the case, the Court was of the view that the period of operation of the waitlist was to be computed from 12-09-2010. In such view of the matter, the appeal was allowed and the judgment impugned was set aside. [U.P. Public Service Commission v. Surendra Kumar,2018 SCC OnLine SC 2525, decided on 22-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, JJ. dismissed a civil writ petition challenging a notification issued by the Travancore Devaswom Board (TDB) in relation to appointment of the head priest of  Sabarimala temple.

Petitioner, one of the applicants for the post of ‘Melshanthi’ (head-priest) of the Sabarimala temple, filed the instant petition challenging a notification issued by TDB whereby only a ‘Santhi’ (priest) having twelve years experience, out of which ten years being spent continuously serving as a Melsanthi of a temple, would alone be eligible for being selected as the Melsanthi of the Sabarimala temple.

The petitioner contended that the stipulation mandating continuous ten years service as Melshanthi amounts to an illegal classification among the Santhis since it has no rationale nexus to the objective sought to be achieved by such classification.

The court held that the impugned notification was not a classification but it prescribed a specific qualification to identify the best and most suitable candidate. All the Melsanthis were Santhis and therefore, what the notification sought to do was not to classify them into two categories, but to prescribe an additional qualification for the aspiring Santhis, so that TDB could select the best candidate.

Relying on the principles relating to fixing and stipulation of the qualifications of employees enumerated by the Supreme Court in J. Rangaswamy v. Government of A.P., (1990) 1 SCC 288, the High Court held that it was completely proscribed from entering into the said area unless the petitioner showed that TDB’s prescriptions were illegal and void ab initio. Thus, the petition was dismissed for being without merits and holding that the issue in question fell within the realm of policy-creation by the appointing authority – TDB.[Rajesh J. Potty v. Travancore Devaswom Board,2018 SCC OnLine Ker 4115, decided on 12-10-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The petitioner in the instant case had filed a petition before a Single Judge Bench of J.K. Maheshwari, J., being aggrieved by the order passed by the President, Board of Revenue, Gwalior, MP.

Facts of the case were that appointment of the petitioner was in question where Board of Revenue had set aside the order confirmed by SDO who recognized contesting parties for the post as sons of predecessors of the Kotwar. The qualifications required for appointment to the post in question were the same for both of them. The Board held that the petitioner was not entitled to the appointment on the post of Kotwar due to the fact that he was accused in a criminal case and had been convicted for the same. The petitioner referred to the impugned order urging that respondent knew Marathi as was seen in his mark sheet and according to the appointment criteria for Kotwar in the State of M.P., the language of transcription was required as Hindi, thus the appointment of the respondent was not proper. Thus, it was contended that the Additional Commissioner, as well as the Board of Revenue, committed an error by setting aside the orders passed by the Tehsildar and SDO.

High Court was of the view that just by the fact that in the mark sheet, one of the subjects of the respondent was Marathi did not show that he does not know the Hindi language. The Court observed that criminal antecedents of the petitioner had not been taken note of by the appointing authority which was rightly considered by Board of Revenue. Therefore, the petition, being without merits, was dismissed. [Supa v. Deepa,2018 SCC OnLine MP 804, dated 02-11-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench of Vivek Rusia, J., dismissed a writ petition filed by the petitioner seeking a writ of Mandamus against the respondent authorities.

The main issue that arose before the Court was whether an appointment for the position of a guest faculty can be claimed as a vested right.

The Court observed that from the representation filed by the petitioner it becomes clear that the petitioner was given joining by the respondent authorities to the post of guest faculty, however, some untoward events took place between the petitioner and other teachers of the school and hence he was not allowed to perform his duties. Further, an aspirant does not have a vested right to seek a writ from the Court for appointment to a particular post. In several Supreme Court judgments it has been held that even after a person gets selected for appointment to a particular post, the said candidate cannot seek a writ of Mandamus for an appointment since appointment is not a vested right.

The Court held that the petitioner in the instant case cannot claim appointment as a vested right and hence the writ petition was dismissed.[Hemant Kumar Pandey v. State of Madhya Pradesh, 2018 SCC OnLine MP 811, order dated 02-11-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed against the order of Respondent 1 whereby Respondent’s 3 & 4 were appointed to the post of lecturer in the health and medical department through back door entry.

The main issue that arose before the Court was whether the order of appointment and subsequent order of promotion, passed by the respondent authorities was valid?

The Court observed that in the case of J&K Public Service Commission v. Narinder Mohan; 1994 (2) SCC 630, it was held by the Supreme Court that appointment to gazetted posts should be only done through direct recruitment and the public service commission must fill up 100% of such posts through direct recruitment. In case if there is no exception given under the rules as per which the appointments are done, then no departure must be made from the general rule of completing the recruitment process through public service commission.

The Court held that the appointment of respondent 3 & 4 was contrary to the provisions of J&K Medical Education (Gazetted) Services Recruitment Rules, 1979 and Section 133 (Article 320 of the Constitution of India) of the J&K Constitution, which makes it mandatory for the Government to have consultation with the Public Service Commission in the matter of appointment of the employees to the Gazetted Services of the State. However, since 17 years had passed since the appointment of respondents and they were also given due promotions, hence the Court did not interfere with their respective positions. The Court directed the respondent 1 to treat the petitioner senior to the respondents 3 & 4 and provide him all the consequential benefits of assistant professor with effect from 2001. Resultantly, the Court allowed the petition. [Sudha Sharma v. State of J&K,2018 SCC OnLine J&K 771, order dated 25-10-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single judge bench comprising of Dinesh Maheshwari, J. while hearing a petition praying for the appointment of an arbitrator, ruled that if an agreement between parties provides for arbitration and a dispute arises therefrom then it must be settled through arbitration.

The petitioner company, involved in exporting of fruit products, approached the respondent to process mangoes for export purpose. On respondent’s assurance that it possessed the necessary machinery and expertise to process mangoes, an agreement was executed between the parties. However, respondent delayed in the process of unloading mangoes. Since the season was drawing to a close and there was a loss in business due to the delays caused by respondent, the petitioner gave it a concession for procuring mangoes on its own and a further concession for processing the rejections into mango pulp. But still the respondent did not take steps to procure mangoes and also failed to meet the quantity and quality of the finished product.

Despite these lapses, the respondent raised an invoice which the petitioner refused to clear. In turn, the petitioner sent it a legal notice demanding payment for loss caused due to respondent’s failure to meet its contractual obligations. Since respondent did not revert to the said notice, petitioner invoked arbitration clause of the agreement nominating an arbitrator and called upon respondent to do the same. Respondent’s failure to even nominate an arbitrator, constrained the petitioner to file the instant petition.

The limited aspect for the court’s consideration was whether there existed an arbitration agreement between the parties. On perusal of the agreement executed between parties, the court noted that clause 5 of the said agreement provided that in case of disputes between parties not being settled amicably, the same would be settled in arbitration.

It was held if a dispute between the parties cannot be resolved amicably and there is the failure to appoint an arbitrator, then in such a case, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide such dispute. Accordingly, the petition was disposed of by appointing a retired judge as an arbitrator.[Pellagic Food Ingredients (P) Ltd. v. Oceanic Edibles International Limited, Civil Miscellaneous Petition No. 300 of 2016, decided on 09-10-2018]