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]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before a Single Judge Bench comprising of Anand Pathak, J., filed against an order where appointment of petitioner was put on hold.

Facts of the case are that petitioner and respondent applied for a post of Anganwadi worker at Gram Panchayat where petitioner was not appointed. Aggrieved by the above an appeal was preferred before the Collector District Gwalior who directed Project Officer to issue appointment order after which petitioner was appointed. Respondent aggrieved by this filed an appeal before the Commissioner/Additional Commissioner where the stay was granted on the order by which petitioner was appointment.

Petitioner submitted that appellant authority was not having the power to issue an interim order. The case of Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225 was referred stating once powers are not given then it cannot be borrowed. Petitioner contended that the nature of order passed would amount to the final relief which could not have been awarded. Whereas respondent submitted that appellant authority has inherent power to issue an interim order by virtue of its power to hear an appeal.

The High Court viewed that impugned order withholds the appointment of petitioner which is a relief final in nature and interim relief which is final in nature could not have been granted, therefore, impugned order was set aside. [Rekha Jatav v. State of M.P.,2018 SCC OnLine MP 679, dated 06-10-2018]

Case BriefsSupreme Court

“Judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for judicial service.”

Supreme Court: The 3-Judge Bench comprising of Kurian Joseph, Sanjay Kishan Kaul and Navin Sinha, JJ., while allowing an appeal filed by a successful judicial services candidate stated that, “the consideration and candidature in the present case of the appellant are afflicted by a myopic vision, blurred by the spectacle of moral turpitude, reflecting inadequate appreciation and application of facts.”

The factual matrix of the case presents a picture in which it is stated that the appellant being a successful aspirant for judicial service was aggrieved from cancellation of his selection for appointment due to the character verification report.

The contention of the appellant by his learned counsel was that he had honestly and truthfully disclosed his prosecution and acquittal. It has been stated that appellant was being subjected to arbitrary and hostile discrimination by placing reliance of Joginder Singh v. State (UT of Chandigarh), 2015 (2) SCC 377. Counsel for the respondents stated that acquittal because prosecutrix turned hostile cannot come to the aid of the appellant and fact that he had disclosed the same earlier does not exempts his conduct involving moral turpitude.

Therefore, the Supreme Court on the observance and analysis of the facts and circumstances of the case stated that “Employment opportunities are a scarce commodity in our country.” In furtherance to the stated analysis, the Court added that “every individual deserves an opportunity to improve.” Also, the Apex Court concluded by stating that no reasonable person on the basis of materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer.

Hence, the respondents were directed to reconsider the candidature of the appellant and an appropriate decision shall be taken in light of the present discussion. The appeal was allowed. [Mohammed Imran v. State of Maharashtra,2018 SCC OnLine SC 1943, decided on 12-10-2018]

Amendments to existing lawsLegislation Updates

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