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delhi high court

Justice, not law, is, what we have given to ourselves in our constitutional scheme- Delhi High Court

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Case title: Dr. Sri Kiruba Nandini M v. National Board of Examination and Anr.

Case no: W.P.(C) 5633/2024

Dated on: May 10

Quorum: Hon’ble Mr. Justice C. Hari Shankar

Facts of the case:

The petitioner has approached this Court, through Writ Petition, seeking an appropriate writ, order or direction, to set aside the letter dated 12-15 March 2024 whereby the Petitioner’s DNB candidature was cancelled. The petitioner completed her MBBS from Annapoorana Medical College and thereafter she appeared for NEET and was admitted to the DNB post-MBBS in Obstetrics and Gynaecology by the Respondent 1 – National Board of Examinations (NBE) where she was to undergo training in Apollo Hospital. In the third year of her training, the petitioner was diagnosed as suffering from Acute Myeloid Leukemia (AML). Chemotherapeutic treatment of the petitioner started on 30 September 2022. Due to Covid-19 pandemic her condition worsened and was placed on ventilator support. On 15 November 2022 she was discharged from the hospital after having undergone 50 days continuous treatment. On 18 January 2023, the petitioner was again admitted to Apollo Hospital where she underwent allogenic stem cell transplant. On 23 May 2023, Fitness Certificate was issued by certifying that the petitioner was on intensive anti-cancer treatment since 27 September 2022 and that she was fit to rejoin work on 10 July 2023. On 21 July 2023, the petitioner rejoined duties at the Apollo Hospital. On 3 October 2023, the Apollo Hospital wrote to the NBEMS, informing that the petitioner was diagnosed with AML on 27 September 2022, for which she had been on continuous treatment; and that she had taken 296 days of leave. The petitioner was extending her course from 19 August 2023, and that the course would be completed on 10 June 2024. On 11 February 2024, the petitioner apprised the NBEMS of her health condition and requested to extend her DNB training programme from 18 August 2023 to 10 June 2024. On 22 February 2024, the NBEMS wrote to Apollo Hospital expressing serious concerns regarding availment of leave without prior approval from NBEMS. The Apollo Hospital replied by stating that they had informed the NBEMS of the critical state of health of the petitioner and the hospital was waiting for the petitioner to recover to submit the requisite documents.  

Issues:

Whether NBEMS was justified in cancelling the candidature of the petitioner on the ground that the petitioner remained absent from DNB training, without prior approval of the NBEMS?  

  Contentions of the appellant:

The petitioner submitted her response explaining the health issues and to accept her leave under extraordinary circumstances and extend the course from 17.08.2023 to 10.06.2024. The NBEMS vide the impugned communication dated 12-15 March 2024 informed the hospital that the petitioner’s DNB candidature had been cancelled by stating that the training institute did not inform NBEMS regarding her absence and that a DNB Trainees can avail a maximum of 30 days of leave in a year and under normal circumstances leave of one year will not be carried forward to the next year and in exceptional cases such as prolonged illness, the leave may be clubbed with prior approval of NBE.  

Contentions of the respondent:

If the petitioner was indisposed for the period during which she did not attend training, she ought to have submitted a leave application so that her request for leave shall be considered by the NBEMS. Prior approval of NBEMS is necessary before a candidate proceeds on leave. It was only on 3 October 2023 that the Apollo Hospital, Chennai wrote to the NBEMS, informing the petitioner’s prior period of absence. It was only six months after the petitioner had rejoined duty in Apollo Hospital that she addressed an application to the NBEMS, seeking regularisation of the period of her absence from duty of 297 days.

Courts analysis and Judgement:

It is clear from the sequence of events and records that the petitioner was in a critical state of health for the entire period during which she remained absent from training. The petitioner was not in a position to submit leave application or forward medical document either to the Hospital or to the NBEMS. The NBEMS does not dispute the bona-fides of the petitioner’s contention that she was undergoing treatment for the critical illness. The claim is also supported by medical documents. On interpreting Rules 4 to 6 of the Leave Rules, it is observed that they do not stipulate that absence from training without prior approval of the NBEMS can result in cancellation of the candidate’s DNB candidature. Rule 5 states that unauthorised absence from DNB/FNB training for more than seven days may lead to cancellation of registration and hence the usage of the word “may” indicate element of discretion. While deciding whether or not to cancel the DNB candidature, the NBEMS is required to keep all these relevant factors and judiciously exercise the said discretion. A distinction needs to be drawn where the absence of the candidate is negligent or unjustified, from a case in which the absence is bona-fide and owing to circumstances which is beyond the control of the candidate. The NBEMS has to keep in mind the overall public interest. The cancellation of the entire DNB program for the reason that the petitioner did not seek leave in advance would not only destroy her morale but would also do complete disservice to the cause of justice. Any decision to cancel the petitioner’s DNB candidature would clearly result in injustice to the petitioner. The two factors which the NBEMS is required to see is whether the seat is carried over, or whether grant of extension to the candidate would compromise the training of existing trainees but no such contention was averred. The petitioner had never issued any show cause notice proposing to cancel her DNB candidature. The communication dated 22 February 2024 is cautioning her to adhere with the NBEMS leave rules. Cancellation of the DNB candidature of a candidate is an extremely serious matter. In Swadeshi Cotton Mills v. U.O.I. concerning strict compliance with the principle audi alteram partem would apply here with all force. No such decision can be taken without issuing a show cause notice wherein the Candidate is not only required to show cause against cancellation of her candidature, but must also set out the reasons and thereafter an opportunity of personal hearing before taking a decision. The Respondent has failed to follow these procedures and hence the impugned decision cannot sustain in law. Accordingly, the impugned order dated 12/15 March 2024 is quashed and set aside. The DNB candidature of the petitioner is restored. The writ petition stands allowed accordingly, with no orders as to costs.  

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new delhi court

Grant of stay of conviction is not a rule, but an exception to be decided on facts and circumstances of cases- Delhi High Court

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Case title: Daya Nand Chandela v. State

Case no: CRL.A. 835/2010 & CRL.M. (BAIL) 746/2024

Dated on: 10May

Quorum: Hon’ble Ms. Justice Swarana Kanta Sharma

Facts of the case:

The applicant/appellant is seeking suspension of conviction order passed by the learned Special Judge, NDPS, Rohini, Delhi the cause of action which is arising out of FIR, registered at Police Station Tilak Nagar, Delhi for offences punishable under Section 452/307/34 of the Indian Penal Code, 1860 (‘IPC’). On 11.12.2008, at about 4:10 pm, Tilak Nagar Police Station received information regarding an attack on the residence of an MLA and by the time the police arrived, injured/victims had already been taken to DDU Hospital, Delhi. Mr.Sudesh Chandela who is the complainant/victim/ informed the police that they had lent Rs. 50,000/- to one Sufi, who absconded without repaying the amount. The complainant rented jhuggi of Sufi and thereafter, the neighbours of the complainant informed that one Manoj who is the co-accused herein had come and put a lock on the said jhuggi which prompted the complainant Sudesh Chandela and his companion to go to Dayanand Chandela’s residence who is the present applicant/appellant along with Manoj. Both of them confronted the accused persons regarding the lock they put on the jhuggi who in turn explained that they also had financial claims against Sufi and since he had not been paying the said amount, they had locked his jhuggi. During the said conversation, there was heated arguments and thereafter, Dayanand Chandela arrived at the scene and took out a sword. The co-accused Nawab was armed with a sword, while Manoj and Meghraj carried sticks with them. Upon seeing the escalation of the issue, Sudesh Chandela and his other companions fled towards their house for safety. However, Dayanand Chandela, along with the three other co-accused followed them and struck Sudesh Chandela with a sword blow, which Sudesh managed to block. The co-accused Nawab, attacked him with a sword, and other co-accused Manoj and Meghraj assaulted with sticks. The accused persons targeted Sudesh’s father Harpal, his uncle Ram Gopal and his brother Ravinder who had intervened to protect the complainant. Thereafter, FIR was registered and after trial, the accused persons i.e; Nawab, Manoj, Megh Raj and the present applicant Dayanand Chandela were convicted by the learned Trial Court.  

Issue:

Whether the Applicant is entitled to get the suspension/stay of conviction order.  

Legal provisions:

Section 452- House tresspass

Section 307- of the IPC- attempted murder.  

Contentions of the appellant:

The present applicant is aged about 70 years and is a distinguished public figure. The applicant wishes to contest the Lok Sabha Elections 2024 to be held in Delhi on 25.05.2024, and the last date for filing of nomination is 06.05.2024. The present applicant has clean antecedents and has never been convicted. The applicant has won Delhi and Rajouri Garden assembly elections. In the year 2013, when the applicant submitted nomination forms, the Returning Officer on account of judgment and the order of sentence disqualified him. Due to the order of conviction dated 03.06.2010, he cannot contest the upcoming Lok Sabha General Elections, 2024 due to the bar imposed by Section 8(3) of the Representation of the People Act, 1951. There are substantial legal and factual questions involved in the present appeal. It would be in the interest of justice to allow him to contest the upcoming Lok Sabha elections by suspending his conviction.  

Contentions of the respondent:

The applicant had earlier filed two applications for suspension of order of conviction dated 03.06.2010 i.e., in the year 2015 which was dismissed on 15.01.2015, and the other application in the year 2019 which was also dismissed on 10.01.2020. The Trial Court has rightly convicted the appellant and appreciated the evidence in detail. There are no grounds at this stage to come to the conclusion that the appellant is innocent and the appeal is going to result in acquittal. The evidence on record proved the guilt and therefore there are no grounds for suspension of the conviction. Thus, merely because the present applicant intends to contest the elections cannot be a ground to suspend the conviction.  

Courts analysis and judgement:

The Court noted judgment dated 15.01.2015 passed by the Predecessor Bench, wherein a similar application was moved, and the predecessor Court concluded that the application has no merit. The Court ruled that Petitioner has not made out a case where an order for suspension/ stay against conviction could be granted. The case does not appear to be of exceptional circumstances where if stay is not granted would result in causing injustice to the Petitioner. Supreme Court in Navjot Singh Sidhu held that “grant of stay of conviction is not a rule, but an exception to be resorted to in rare cases”. The appellant contested the election previously in the year 2008 and thereafter he didn’t contest elections. Hence, the application was dismissed. In the second application filed in 2019, the Court held that petitioner could not make out grounds for suspension of his conviction order so as to allow him to contest the elections. The grievance of the applicant is that he has been convicted under Sections 452/307/34 of IPC and has been sentenced to undergo three years imprisonment. The appeal, preferred against the conviction order is still pending and the applicant has once again approached the Court praying to suspend the conviction order to enable him to contest the upcoming Lok Sabha Elections 2024. In Afjal Ansari v. State of Uttar Pradesh, the Hon’ble Supreme Court has held that to suspend the conviction of an individual, the primary factors to be looked are the peculiar facts and circumstances of the case, where the failure to grant stay would lead to injustice. In the present case, the applicant is sentenced to undergo imprisonment for three years by the Trial Court after conclusion of trial. It will be inappropriate to discuss the case for assessing the merits at this stage, as that would mean premature adjudication of the main appeal. The present application is the third application for the same reason and the Predecessor Benches have passed detailed judgments after recording reasons to dismiss the applications. The applicant has not challenged either of the Orders dated 15.01.2015 or 10.01.2020. In case the applicant was aggrieved by the dismissal, he could have approached the Supreme Court by filing SLP which he has not done. The applicant had filed an application on 15.01.2020 for early hearing but the said application was withdrawn on 17.01.2020 which gives the impression that the applicant was not interested in getting his appeal heard expeditiously. The applicant by way of this application is again seeking suspension of the order of conviction on the ground that he wishes to contest the upcoming Lok Sabha Elections 2024, which according to the applicant, is a fresh ground and circumstance thereby relying on the case of Dilip Ray. The facts and circumstances of the said case is different for the reason that there the application seeking suspension of conviction was not rejected. If the applicant genuinely wished to contest the upcoming Lok Sabha Elections, he could have filed the present application earlier and could have sought for early hearing. Further, the applicant has not approached the Court with clean hands, since he failed to disclosed that he had filed two similar applications on earlier occasions and the same was dismissed. Therefore, this is not a fit case to suspend order dated 03.06.2010. There are no extraordinary circumstances to allow the present application. Hence, the application stands dismissed.

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Separate Framing of Issues Not Fatal If Appellate Court Already Addressed Them: SC

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Case title: Mrugendra Indravadan Mehta and Ors v. Ahmedabad Municipal Corporation.

Case no: Civil Appeal Nos. 16956-16957 OF 2017

Dated on: May 10th, 2024

Quorum: Justice A.S. Bopanna and Justice Sanjay Kumar.

Facts of the case:

The two appeals arise out of the common judgment dated 18.06.2013 passed by a Division Bench of the High Court of Gujarat at Ahmedabad. The Division Bench allowed the first appeal filed by the Ahmedabad Municipal Corporation and dismissed the cross-objection filed by the respondents. Aggrieved by the same, the said respondents filed the present appeals. The suits were filed against the Corporation seeking compensation of ₹1,63,97,673/- with interest thereon @ 18% p.a. or, in the alternative, allotment of land, i.e., an extent of 974 sq. mts., in any Town Planning Scheme in the western zone of Ahmedabad. The Trial Court, decreed the suit by accepting the alternative prayer to allot an extent of 974 sq. mts. In any Town Planning Scheme in the western zone but rejected the compensation claim of ₹1,63,97,673/- with interest thereon and the plaintiffs were directed to repay the amount of compensation received by them @ ₹25/- per sq. mt. The Corporation preferred the subject first appeal before the High Court while the plaintiffs filed their cross-objection therein. The High Court held that it was not open to the Plaintiffs to claim any damages by accepting the smaller plot and the compensation for the shortfall of 974 sq.mts. without protest.

Issues:

Can a plot owner who surrendered his land pursuant to a Town Planning Scheme, be allotted any land after reconstitution of the plots?

Legal provisions:

Various provisions of Town Planning Schemes Gujarat Town Planning and Urban Development Rules, 1979.

Contentions of the appellant:

The plaintiff/ Appellant father was the owner of original Plot Nos. 144, 150/P and 151/P in Survey Nos., admeasuring 19823 sq. yds./16575 sq. mts. The Corporation prepared Town Planning Scheme No.6, Paldi, where the plaintiffs’ father was required to contribute 21.40% of his lands, i.e., 4247 sq. yds./3552 q. mts., to the Corporation for public purposes. For the remaining extent, the Corporation allotted two separate plots, viz., Plot No. 478, measuring 11686 sq. yds and Plot No. 463, measuring 3890 sq. yds. The vacant possession of Plot No. 478 was delivered to the plaintiffs’ father but the Corporation failed to deliver possession of Plot No. 463 as it was occupied by slum dwellers. The Corporation then prepared a second varied scheme whereunder, Plot No. 463 was taken for the purpose of slum upgradation and the plaintiffs were offered Plot No. 187, measuring 2724 sq. yds thereby reducing the land allotment by 974 sq. mts. The compensation awarded to them for the shortfall of 974 sq. mts. was meagre. The plaintiffs were constrained to file for compensation for the damages as they had suffered huge monetary losses as they could not enjoy the property since 1963 and thus prayed for compensation of ₹1,63,97,673/-

Contentions of the respondent:

The plaintiffs were paid compensation @ ₹25/- per sq. mt. for shortfall of land under the scheme. The plaintiffs accepted possession of Final Plot No. 187 and the compensation, without protest and without challenging the same. The grievance was required to be preferred under Section 54 of the Act of 1976. The plaintiffs could not pray for compensation on the basis of the original Town Planning Scheme for the reason that upon variation of the scheme, the original scheme ceased, and the varied scheme came into existence.

Courts analysis and judgement:

The High Court has set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh. When allotment to plaintiff was modified by the second variation of Town Planning Scheme, where the plaintiffs were allotted Plot No. 187 which was of a lesser area but was silently accepted by them and they neither chose to seek implementation of the original scheme, where under they were allotted a larger plot, or challenge the varied 36 scheme, whereby they were given a smaller plot. Having accepted the plot and upon variation of the scheme, the plaintiffs cannot seek to reopen the negligence and delay, on the part of the Corporation. Upon the preparation or variation of a Town Planning Scheme, the rights in the earlier plots of land stands extinguished and rights accrued, if any, becomes extinct then it cannot be the basis for a later cause of action. The plaintiffs did not choose to adduce any evidence in support of their claim for the quantified damages of 1,63,97,673/-. Though it has been contended that the plaintiffs never actually received the compensation for the shortfall of 974 sq. mts. @ 25/- per sq. yd., but pursuant to the judgment of the Trial Court, the plaintiffs deposited the sum of 24,350/-, being the compensation for 974 sq. mts. @ ₹ ₹25/- per sq. mt., as directed by the Trial Court. If they did not receive such compensation, they ought not to have abided by the direction of the Trial Court and deposited that amount. This voluntary act precludes them from contending that compensation was never paid to them and that they had deposited the amount as it was only a paltry sum. The contention of the plaintiffs that the Act of 1976 does not contemplate a second reduction in the reconstituted plot area cannot be accepted as Section 45 of the Act of 1976 deals with reconstitution of plots. In Prakash Amichand Shah and Ahmedabad Green Belt Khedut Mandal, it was held that a plot owner who has surrendered his original land for the purposes of the Town Planning, is not assured of allotment of a reconstituted plot in lieu thereof then in such case, he is entitled only to compensation. Section 71 postulates that in case of variation of the Town Planning Scheme is to be made then the same needs to be published and sanctioned in accordance with the provisions of the Act of 1976, which means that the entire exercise would be undertaken afresh, therefore, further reduction of a plot which is notified in the original Town Planning Scheme is implicit. The plaintiffs, were aware of the fact that Plot No. 187 allotted to them under the second varied Town Planning Scheme No. 6, Paldi, was of lesser area, and was accepted by them without any protest or raising right to a larger area and their conduct of depositing ₹24,350/- thereby implying receipt of the compensation amount foreclosed their right, to either challenge the allotment of a plot of lesser area or to seek more compensation. In this regard, it is noted that Section 54 provides an appellate remedy to the person aggrieved by any decision of the Town Planning Officer. The quantification of compensation was amenable to appellate review but the plaintiffs did not avail the said remedy. The plaintiffs’ main prayer was for quantified compensation, in the alternative, to allot land in the western zone of Ahmedabad. The Plaintiff did not adduce evidence values of the two final plots. The monetary value of two plots depend upon situation, development, proximity and access to the main road or highway, etc., and the same cannot be concluded without adequate proof. The High Court was fully justified in allowing the first appeal filed by the Corporation. There is no need for any interference. Therefore, the appeals are accordingly dismissed.  

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Medial Board to consider physical emotional well-being of pregnant person- SC

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Case title: A (mother of X) v. State of Maharashtra and Anr

Case no: Civil Appeal No. 5194 of 2024

Dated on: April 29th, 2024

Quorum: Dr Dhananjaya Y Chandrachud, J B Pardiwala, Manoj Misra.

Facts of the case:

This appeal arises from the judgement of a division bench of the High court judicature at Mumbai dated 4th April 2024. It basically denied the minor from terminating her pregnancy. ‘X’ is a minor around 14 years old and has been alleged of a sexual assault in September 2023. ‘X’ revealed this on 20thMarch 2024 by then she was 25 weeks into her pregnancy. It was said that ‘X’ always had irregular periods and could not have assessed her pregnancy earlier. ‘X’ was taken to a hospital on 21 March 2024 for medical examination and then transferred to the JJ Group of Hospitals, Mumbai for termination of her pregnancy. On 28 March 2024 the Medical Board constituted under the Medical Termination of Pregnancy Act 1971 opined that ‘X’ was physically and mentally fit for termination of her pregnancy subject to the permission of the High Court. The Appellant moved to the High Court of Judicature at Bombay under Article 226 of the Constitution seeking the termination of pregnancy of her daughter. On 3rd April 2024, the Medical Board issued a ‘clarificatory’ opinion, without re-examining ‘X’. The report denied the termination of pregnancy on the ground that the gestational age of the foetus was twenty-seven to twenty-eight weeks and that there were no congenital abnormalities in the foetus. By the impugned judgment the High Court dismissed the writ petition on the ground that the pregnancy exceeded the statutory period of twenty-four weeks. In the present appeal, it was observed that the medical report does not contain evaluation of the physical and mental status of the minor, having regard to the background leading up to the pregnancy. The Medical Board was directed to apprise as to whether carrying the pregnancy to the full term would impact the physical and mental well-being of the minor who is barely fourteen years old. The minor was examined by a team of six doctors who after examining ‘X’, opined that the gestational age of the foetus was 29.6 weeks and continuation of pregnancy will negatively impact the physical and mental well-being of ‘X’.

Issues:

Whether carrying of the pregnancy to the full term would impact upon the physical and mental well-being of the minor who is barely 14 years?

Legal provisions:

Section 376 of IPC- Punishment of Rape. 
Sections 4 of the POCSO Act- This section deals with penetrative sexual assault on a child. 
Section 8 of the POCSO Act- Punishment for sexual assault. 
Section 12 of the POCSO Act- Punishment for sexual harassment.

Contentions of the appellant:

The appellant had moved High Court initially to permit them to terminate the pregnancy. Upon denial by the Hight Court, an appeal was preferred under 136 of the Constitution. The medical team reported that while initially the parents were agreeable to the stoppage of the foetal heart on 24 April 2024, on 25 April 2024 the appellant stated that she desires that the pregnancy be taken to term and that she would thereafter give the child in adoption.

Courts analysis and Judgement:

In X v. State (NCT of Delhi), it was recognized that the fear of prosecution among registered medical practitioners is a barrier for pregnant persons to access safe and legal abortions. The purpose of the opinion of the RMP bears the legislative intent of the MTP Act which is to protect the health of a pregnant person and facilitate safe, hygienic, and legal abortion. The right to abortion is to protect right of dignity, autonomy and reproductive choice and this right is guaranteed under Article 21 of the Constitution.   The court in XYZ v. State of Gujarat,11 held that the medical board or the High Court cannot refuse abortion merely on the ground that the gestational age of the pregnancy is above the statutory prescription. The powers vested under the Constitution in the High Court and this Court allow them to enforce fundamental rights guaranteed under Part III of the Constitution. When a person approaches the court for permission to terminate a pregnancy, the court apply their mind to the case and make a decision to protect the physical and mental health of the pregnant person. In Suchita Srivastava v. Chandigarh Admn.14, a three-judge Bench of this Court has held that the right to make reproductive choices is a facet of Article 21 of the Constitution. The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution, the court must regard the view of the pregnant person as an important factor while deciding the termination of the pregnancy. In the present case view of ‘X’ and her parents to take the pregnancy to term are in unison.  In the facts and circumstances the following directions are issued: (i) All the expenses in regard to the hospitalization of the minor in respect of her delivery to be borne by the Hospital (ii) In the event that the minor and her parents desire to give the child in adoption, the State Government to take all necessary steps to facilitate this exercise.  The Court concludes as follows: (i) The MTP Act protects the RMP and the medical boards when an opinion is formed in good faith regarding termination of pregnancy; (ii) The medical board opinion must not be restricted to the criteria under Section 3(2-B) of the MTP Act but should consider the physical and emotional well-being of the pregnant person (iii) When issuing a clarificatory opinion the medical board to support with reasons for change in opinion and circumstances; and (iv)The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount. In case there is a difference of opinion between the pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration to enable the court to arrive at a conclusion. Accordingly, the appeal is disposed of. 

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Supreme Court Supports Minimum Mark Criteria for Interviews, Emphasizing Written Exam Alone Insufficient for Merit Determination

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Case title: Abhimeet Sinha and Ors v. High Court of Judicature at Patna and Ors.

Case no: Writ petition No.663/2021, No.735/2021, No.1073/2022, No.1146/2022, No.785/2023 and No.251 of 2016

Dated on: 06th May 2024

Quorum: Justice Hrishikesh Roy

Facts of the case:

Writ petitions were filed under Article 32 challenging the constitutionality of the Rules wherein minimum qualifying marks was stipulated in the viva voce test for appointment to the District Judiciary in the States of Bihar and Gujarat respectively, which according to the Writ petitioners violated fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The writ petition 251 of 2016, relates to the recruitment of District Judge direct from Bar Examination (2015), and the recruitment process is governed by the Bihar Superior Judicial Service Rules, 1951. The prayer was to strike down Clause 11 of Appendix of Bihar Superior Judicial (Amendment) Rules 2013 and to set aside the selection for Bihar Superior Judicial Service. The other connected Writ Petitions relate to the recruitment to the post of Civil Judge in Gujarat. The writ petitioners challenged Rule 8(3) of the Gujarat State Judicial Service Rules apart from that, to prepare a fresh list to be based written examination and interview marks, irrespective of the cut-off prescribed.   

Issues:

i) Whether the prescription of minimum marks for viva voce is in 
contravention of the law laid down by in All India Judges (2002)? 
ii) Whether prescription of minimum marks violates Articles 14 and 16 of the Constitution? 
iii) Whether selection process in Bihar is vitiated due to moderation of marks and corrective steps in the Bihar Selection process?  
iv) Whether non-consultation with the Public Service Commission for selection to the post of Civil Judge would render the Gujarat Rules,2005 void?  

Legal provisions:

Writ Petition under Article 32 of the Constitution- Has been instituted in order to challenge the constitutional validity of Section 15 of the Hindu Succession Act, 1956 on the ground that there is a discrimination in the devolution of the estate of a woman who dies intestate, in comparison with the rules for devolution where a male has died intestate.  

Contentions of the appellant:

The selection process is vitiated as it is in contravention of the law laid down in All India Judges (2002) where subject to modifications in the judgment, all other recommendations of the Shetty Commission, were accepted. As per the Commission, for selection of judicial officers the interview segment shall carry 50marks without any minimum cut-off marks for the reason that the prescription of minimum marks in the viva-voce test is arbitrary and unreasonable. The writ petitioners have better aggregate score (written and viva-voce combined) but are deprived of selection as they failed to secure the qualifying marks in the interview. The interview marks are arbitrarily awarded which is why the Shetty Commission recommended for doing away with the cut-off of marks, in the viva-voce. The fairness of the process ie by resorting to moderation and the relaxation of aggregate marks is clearly admitted. Hence, it was submitted that Court should order on the faulty selection process but should also allow appointment on the basis of the aggregate score, thereby not enforcing on the cut-off marks bar, in viva. The final result was declared on 8.4.2016 but the Selection and Appointment Committee continued issuing corrigendum, publishing, interviews till September 2016. If Patna High Court wanted candidates from a larger pool, due to large number of vacancies, then they ought to have relaxed qualifying marks in the interview. The interview board members had access to the written marks and therefore they could disqualify a meritorious candidate arbitrarily, by awarding them less than the qualifying marks. The amendment of were done only with the consultation of the High Court but not with the Gujarat Public Service Commission which violates Article 234 of the Constitution of India. Denial of appointment because of below par score in the viva-voce, is discriminatory.  

Contentions of the respondent:

The High Court, to make the best selection can enforce a stricter criterion than what was prescribed by the Shetty Commission. The procedure suggested by the Shetty Commission is only recommendatory and should be construed as guidelines only. The objective of Patna High Court was to ensure the selection of meritorious judicial officers and maintain the standard of the District Judiciary. The writ petitions at the instance of the unsuccessful candidates is not maintainable. The High Court can evolve its own procedure under Articles 233,234 and 235 of the Constitution. Further, it was mentioned that the Internal Board members did not have access to the marks in the written test while conducting viva voce.  

Courts analysis and Judgement:

It is argued by that by participating in the recruitment process, the writ petitioners cannot turn around and challenge the recruitment process. The writ petitioners argued that estoppel is not applicable when the arbitrariness affects fundamental rights under Articles 14 and 16 of the Constitution. The Supreme Court in Dr. (Major) Meeta Sahai Vs. Union of India that “The candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” In Shayara Bano v Union of India, the Supreme Court noted that a legislation can be struck for being arbitrary ie if it is “irrational, capricious without an adequate determining principle”. The issue to be examined is whether the vice of arbitrariness is attracted for the Rules which prescribes qualifying marks for the viva voce test. The issue raised by the writ petitioners to prescribe minimum marks for viva voce is not uncommon and the precedents suggest that it depends on the nature of the post and the extent of weightage given to viva voce. The Governor is under no compulsion to consult the Public Service Commission in case the Commission does not wish to be consulted which is in consonance with the proviso to Article 320(3) of the Constitution. Hence, the concerned Gujarat Rules cannot, be declared to be void. With the foregoing discussion, the conclusions arrived are: The Prescription of minimum qualifying marks for interview is permissible and this is not in violation of All India Judges (2002) which accepted certain recommendations of the Shetty Commission. The validity challenge to Clause 11 of the Bihar Rules, 1951 and Rule 8(3) of the Gujarat Rules, 2005 prescribing minimum marks for interview are repelled. The impugned selection process in the State of Bihar and Gujarat are legally valid. iv) The non-consultation with the Public Service Commission would not render the Gujarat Rules, 2005 void. The Writ petitions are, accordingly, dismissed without any order on cost.  

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Judgement reviewed by- Parvathy P.V.
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