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TITLE: M/s Medlife Wellness Retail Pvt. Ltd. v. The Union of India & Ors.

Decided on: 26-06-2023

CWJC No: 8014/2023

Coram: HONOURABLE THE CHIEF JUSTICE and

             HONOURABLE MR. JUSTICE PARTHA SARTHY 

Facts of the case:

This is a writ petition case filed under Article 226 of the Constitution of India seeking multifarious reliefs. The petitioner is desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (hereinafter referred to as “Tribunal”) under Section 112 of the Bihar Goods and Services Tax Act (hereinafter referred to as “B.G.S.T. Act”).

However, due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under SubSection (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act.

Under the circumstances, the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112.

The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office.

Analysis of the court and decision:

This Court is, therefore, inclined to dispose of the instant writ petition in the following terms:-

(i) Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to the non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed. It is not in dispute that similar relief has been granted by this Court in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022.

(ii) The statutory relief of stay, on deposit of the statutory amount, however in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non constitution of the Tribunal by the respondentAuthorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.

(iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal under Section 112 of the B.G.S.T. Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent- Authorities would be at liberty to proceed further in the matter, in accordance with law. 

(iv) If the above order is complied with and a sum equivalent to 20 percent of the remaining amount of the tax in dispute is paid then, if there is any attachment of the bank account of the petitioner pursuant to the demand, the same shall be released. 

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Written by- Meghana D

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TITLE: Swati Swarnim v. State of Bihar & Ors.  

Decided on: 28/06/2023

CWJC No: 17951/2022

Coram: HON’BLE MR. JUSTICE ASHUTOSH KUMAR &

             HON’BLE MR. JUSTICE HARISH KUMAR

 

Facts of the case:

The petitioner obtained L.L.B. degree from BabasahebBhimrao Ambedkar Bihar University in the year 2014, and got enrolled as an advocate with the Bar Council of Bihar. In response to the Advertisement No. 4 of 2020 for selection or appointment to the post of Civil Judge (Junior Division) by the Bihar Public Service Commission, the petitioner submitted her application for the same post.

The petitioner belongs to Extremely Backward Class (Female) Category, and had appeared in the Preliminary Examination of 31st Services Examination. She succeeded in the said examination and appeared in the Written Examination (Mains). She was successful in this examination as well and was called for an interview.

However, when the final merit list was published by the Bihar Public Service Commission, she was disqualified in the interview along with others, who had failed to secure the minimum qualifying marks.

The petitioner being aggrieved by this, approached the Patna High Court, seeking a direction upon the respondents to consider her candidature for the post of Civil Judge (Junior Division) and recommend her name for the said post as she has been illegally left out in the final result dated 10.10.2022.

The petitioner further seeks quashing of the second proviso to Rule 15(c) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 read with Notification no. 7/Ashta-01-4-04/2011GAD/16645 dated 03.12.2014 to the extent of fixing a cut-off marks of 35% in viva-voce examination and also for quashing the aforenoted advertisement, more particularly condition no. 4(c) by holding it as ultra vires of Article 14 to the Constitution of India.

From the perusal of the final result dated 10.10.2022 as contained in Annexure-5 to the writ petition, it appears that she has been accorded only 34 marks out of total 100 marks and in the written examination, she had secured 427 marks. Even if the petitioner was securing 34 marks in the interview, it has been argued, she is eligible to be selected in the final examination as the final cut-off marks for EBC Category (female) is 447 and she has secured 461 marks in aggregate. However, only on account of the draconian rule of minimum of 35% marks in an interview, she has been declared not qualified. 

The petitioner, placing reliance on the judgement rendered by the Supreme Court in the case of All India Judges’ Association and Others vs. Union of India and Others, (2002) 4 SCC 247, submits that the mandate of the Supreme Court is that there should not be any requirement for securing minimum marks in viva-voce, which ought to have been given effect to in the present case, notwithstanding the proviso to Rule 15(c) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 read with Notification dated 03.12.2014, any condition, imposing 35% marks out of total 100 marks as qualifying marks in interview which is contrary to the statutory rules, and that too when the Rule 15(c) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955, stood already deleted vide Notification No. 17283 dated 28.12.2016.

Analysis of the court and decision:

It is to be noted that Advertisement No. 4 of 2020 was issued much after the incorporation of qualifying marks at the viva-voce test vide corrigendum dated 22.11.2017, prescribing the minimum qualifying marks of 35% in interview. The same is not contrary to rules. There is no inherent infirmity, rendering it ultra vires to the Constitution. The petitioner has appeared in the examination without protest and having been found unsuccessful, she cannot be permitted to challenge the process of selection. 

This Court has considered the identical issue in C.W.J.C. No. 1777 of 2020 (Nitu Kumari and Others vs. The State of Bihar and Others and other analogues cases), wherein the aspirants of 30th Bihar Judicial Service Competitive Examination, had questioned Rule 15(c) of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 on the same ground. The claim of the petitioner(s) of the aforenoted writ petitions have been negated. 

In the view thereof, the present writ petition is also disposed by the Patna High Court in terms of the judgement dated 21.06.2023 passed in C.W.J.C. No. 1777 of 2020. 

 

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Written by- Meghana D

Click to view judgement