Supreme Court

Rajendra Chaudhary and Ors. Vs. The State of Uttar Pradesh and Ors.

MANU/SC/1172/2019

28.08.2019

Service

Regulations framed by MCI relating to conditions of service of Professors in Medical Colleges shall prevail over Service Rules framed by State

The controversy in present Appeals is regarding reservations to be applied for appointment by direct recruitment to the posts of Professor in Medical Colleges in Uttar Pradesh and enhancement of the maximum age limit from 45 years to 65 years. There was no direct recruitment to the posts of Professors in 12 Government Medical Colleges (Allopathy) for 12 years prior to 2015. An advertisement was issued on 21st December, 2015 by the Uttar Pradesh Public Service Commission seeking applications for appointment by direct recruitment to 47 substantive vacant posts of Professors in various Allopathic Medical Colleges. The said advertisement was subject matter of challenge in a Writ Petition filed in the High Court.

The High Court dismissed the Writ Petitions by rejecting the submissions relating to the reservations and enhancement of the upper age limit. Hence, present Appeals.

The two points that fall for consideration in these Appeals are: a) Whether the advertisement impugned in the Writ Petition is violative of Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 ("the Reservation Act): and b) Whether enhancement of the upper age limit for appointment to the post of Professor by direct recruitment is contrary to the Uttar Pradesh Medical Colleges Teachers' Service (Second Amendment) Rules, 2005 (Service Rules)

It is relevant to refer to a judgment of the High Court in Dr. Juhi Singhal and Ors. v. State of U.P. and Anr. which examined a challenge to the advertisement dated 21st December, 2015 which is the subject matter of present Appeals. The High Court upheld the notification by holding that, there is no infringement of the Service Rules.

A full Bench of the High Court considered the applicability of reservations to Scheduled Castes under the Reservation Act, as applicable to the aided institutions. It was held that, the Reservation Act cannot be pressed into service where the number of posts in the cadre are less than five. No error has been committed by the Respondents in not providing reservations for appointment by direct recruitment to the post of Professor in Government Medical Colleges. The unit of appointment is speciality/department and the number of posts available in each speciality/department is less than five. Category 'B' in Appendix 'A' of the Service Rules refers to direct recruitment which is the subject matter of the advertisement. The Appellants' contention that, the cadre of Professors in all the Departments put together has to be taken into account for providing reservations has rightly been rejected by the High Court.

Further, the decision to increase the upper age limit from 45 years to 65 years is not vitiated. The High Court rejected the challenge to the enhancement of upper age limit for direct recruitment to the post of Professor in Dr. Juhi Singhal v. State of U.P. and Anr. by holding that, the Regulations framed by the MCI would prevail over the Service Rules. In the said judgment, the High Court was of the view that, the Government Order dated 6th February, 2015 only supplements the Rules and does not supplant them. The High Court further observed that, the relaxation was done in view of the shortage of teachers in Medical Institutions who are qualified for appointment to the posts of Professors. The relaxation of the upper age limit was applicable only to those departments where 25 per cent or more posts were vacant and in respect of other departments, the State Government decided not to fill them up.

The Regulations framed by the MCI relating to the conditions of service of Professors in Medical Colleges shall prevail over the Service Rules framed by the State of Uttar Pradesh. The posts of Professors in Government Medical Colleges being manned for 15 years prior to 2015 by unqualified persons indicate the distressing state of affairs of medical education in the State of Uttar Pradesh. To remedy a grave situation, the State has taken a decision to make appointments by increasing the maximum age limit. The sincere attempt made by the State to have qualified doctors holding the posts of Professors has not yielded any results due to the pendency of cases which are filed challenging the advertisement. The Respondents are directed to expedite the process of selection to the posts of Professors and make appointments at the earliest. Appeals dismissed.

Relevant

Dr. Juhi Singhal and Ors. v. State of U.P. and Anr.

Tags : Appointment Reservation Age Enhancement

Share :

Top

Supreme Court

The State of Tamil Nadu and Ors. Vs. G. Hemalathaa and Ors.

MANU/SC/1171/2019

28.08.2019

Service

High Court cannot modify/relax Instructions issued by Commission which are mandatory in nature

In facts of present case, the Tamil Nadu Public Service Commission ('the Commission') issued a Notification dated 9th April, 2018 inviting applications from eligible candidates for filling up 320 vacancies to the posts of Civil Judges. The Respondent was successful in the preliminary examination. The written test was conducted and results of the written test were and the name of the Respondent did not appear in the list of successful candidates. Interviews were conducted and the final results of successful candidates were published.

The Respondent came to know that, another candidate belonging to the same community to which she belongs (Most Backward Class) was selected in spite of her performance not being satisfactory. The Respondent made a representation to the Commission to furnish her marks in the written examination. The Commission conveyed to the Respondent that, her Law Paper 1 written examination was invalidated in view of violation of the Instructions to Applicants (hereinafter referred to as 'the Instructions') issued by the Commission.

The Respondent filed a Writ Petition in the High Court. The High Court directed the Commission to announce the results of the Respondent in Law Paper-1 of the main written examination. If she was found qualified, the Commission was directed to conduct the interview of the Respondent as a special case. The Commission was further directed to complete the exercise and announce the final result of the Respondent within a period of four weeks. Being dissatisfied with the said judgment of the High Court, this appeal is filed.

The Instructions issued by the Commission are mandatory, having the force of law and they have to be strictly complied with. Strict adherence to the terms and conditions of the Instructions is of paramount importance. The High Court in exercise of powers under Article 226 of the Constitution cannot modify/relax the Instructions issued by the Commission. The High Court after summoning and perusing the answer sheet of the Respondent was convinced that, there was infraction of the Instructions. However, the High Court granted the relief to the Respondent on a sympathetic consideration on humanitarian ground.

In spite of the finding that there was no adherence to the Instructions, the High Court granted the relief, ignoring the mandatory nature of the Instructions. It cannot be said that, such exercise of discretion should be affirmed, especially when such direction is in the teeth of the Instructions which are binding on the candidates taking the examinations. Judgment of the High Court cannot be approved as any order in favour of the candidate who has violated the mandatory Instructions would be laying down bad law. The judgment of the High Court is set aside. Appeal is allowed.

Tags : Result Announcement Direction Legality

Share :

Top

Supreme Court

Jayesh H. Pandya and Ors. Vs. Subhtex India Ltd. and Ors.

MANU/SC/1162/2019

27.08.2019

Arbitration

There must be a voluntary and intentional relinquishment of a right and voluntary choice is essence of waiver

The instant appeal is directed against the final judgment passed by the High Court whereby the High Court while dismissing the Arbitration Petition held that, the Appellants had waived their right to the extension of time for completion of the arbitration proceedings and making the award, beyond the stipulated period of four months.

It is established that, the Arbitrator was unable to complete the arbitral proceedings within four months from the date of the first preliminary meeting held on 4th May, 2007 in terms of Clause (5) of the arbitration agreement and objection to extend the time was recorded by the Appellants before the Arbitrator. The Arbitrator having failed to do so rejected their application by an Order that came to be challenged by the Appellant invoking Section 14 of the The Arbitration and Conciliation Act, 1996 by filing an Arbitration Petition in the High Court with a declaration that, the Arbitrator has become je jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the parties stood terminated which came to be dismissed by the High Court under the impugned judgment.

It is clear from the bare reading of Sub-section 1(a) of Section 14 that mandate of an arbitrator shall terminate if it fails to act without undue delay. In the present case, the first preliminary meeting was held on 4th May, 2007 and the Arbitrator in terms of the agreement was supposed to conclude and pass the award within a period of four months which indisputedly stood expired on 4th September, 2007 and in the meantime the Appellants recorded their objection of not consenting for extension of time beyond 4th September, 2007 and thus, it can be construed that, parties were not in agreement for extension to the mandate of the Arbitrator failing which the arbitral proceedings automatically stood terminated.

Sub-section (2) of Section 14 clearly stipulates that, if a controversy remains concerning any of the grounds referred to in Clause (a) of Sub-section (1), the party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate and the Appellants rightly applied to the Court for termination of the mandate of the Arbitrator pursuant to the provisions of this Section and the Court was within its jurisdiction to decide accordingly.

It is true that the object of the scheme of the Act, 1996 is to secure expeditious resolution of disputes and it is based on the fulcrum of promptitude but at the same time the Arbitrator is required to adjudicate the disputes in view of the agreed terms of contract and the procedure. Therefore, the arbitration proceedings are supposed to be governed and run by the terms as agreed by the parties. The Arbitrator, therefore, cannot go beyond the Clause of the arbitration agreement.

The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that, there has been a waiver of valuable rights where the circumstances show that what was done was involuntary.

The parties have admittedly agreed and the time period so prescribed is final and binding. It means the arbitration proceedings should commence and end within the prescribed period of time which in the instant case was of four months and expired on 4th September, 2007 and, there was no occasion for either party to raise an objection as long as the time was available at the command of the Arbitrator to conclude the arbitral proceedings and pass an award within the time Schedule fixed under the terms of contract as agreed by the parties.

There is no provision under the arbitration agreement to condone the delay, when agreement between the parties binds them to see that the arbitration proceedings should be concluded within the time prescribed. This time restriction is well within the scope and purport of the Act, 1996 at national and international arbitrations. The Arbitrator indeed became de jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the parties as prayed for stood terminated. The judgment and order of the High Court is set aside. Appeal allowed.

Tags : Award Arbitral proceedings Termination

Share :

Top

Supreme Court

Khuman Singh Vs. State of Madhya Pradesh

MANU/SC/1161/2019

27.08.2019

Criminal

When there was no premeditation on part of Accused and occurrence took place suddenly, offence would fall under Exception 4 to Section 300 of IPC

Present appeal arises out of the judgment passed by the High Court by which the High Court affirmed the conviction of the Appellant-Accused under Section 302 of Indian Penal Code, 1860 (IPC) and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence of life imprisonment imposed upon him.

The High Court affirmed the conviction of the Appellant-Accused by holding that, mere delay in recording the statement of the witnesses under Section 161 of Code of Criminal Procedure, 1973 (CrPC) is not fatal to the case of prosecution.

In a wordy altercation, the Appellant hit the deceased on his head with an axe due to which, deceased fell down and later succumbed to injuries. On considering the evidence of PWs 1, 2 and 7 who have consistently spoken about the occurrence, the prosecution has proved that, the Appellant caused the injuries on the head of the deceased with an axe.

The entire incident occurred, when the Appellant had taken his buffaloes for grazing in the field of deceased for which the deceased objected and drove all the buffaloes out of his field. It is in these circumstances, the Appellant became furious and abused the deceased and caused injuries on his head in a sudden fight with axe. There was no pre-meditation for the occurrence and because of the grazing of the cattle, in a sudden fight, the occurrence had taken place.

Exception 4 to Section 300 of IPC can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. In the present case, the Appellant-Accused and the deceased exchanged wordy abuses on which, Appellant gave the deceased blows on his head causing six head injuries. Where the occurrence took place suddenly and there was no premeditation on the part of the Accused, it falls under Exception 4 to Section 300 of IPC.

In a sudden fight, the Appellant had inflicted blows on the head of the deceased with an axe which caused six head injuries. Though the weapon used by the Appellant was axe and the injuries were inflicted on the vital part of the body viz. head, knowledge is attributable to the Appellant-Accused that the injuries are likely to cause death. The fact that the occurrence was in a sudden fight, the occurrence would fall under Exception 4 to Section 300 of IPC. The conviction of the Appellant-Accused under Section 302 of IPC is therefore to be modified as conviction under Section 304 Part II IPC.

There is nothing to suggest that, the offence was committed by the Appellant only because the deceased belonged to a Scheduled Caste. In the result, the conviction of the Appellant under Section 3(2)(v) of the Act is set aside and he is acquitted of the said charge. The conviction of the Appellant under Section 302 of IPC is modified as conviction under Section 304 Part II of IPC and is sentenced to undergo imprisonment to the period already undergone. Accordingly, the appeal is partly allowed.

Tags : Conviction Sentence Legality

Share :

Top

High Court of Bombay

Sadashiv Vs. State of Maharashtra

MANU/MH/2394/2019

26.08.2019

Criminal

Convincing evidence on recoveries given by Investigating Officer could not be rejected merely because panch witness had turned hostile

By present revision application, the Applicant (original accused) has challenged judgments and orders of two Courts below, whereby he stood convicted and sentenced for offences punishable under sections 419, 420, 465 and 468 of the Indian Penal Code, 1860 (IPC). The sentences for the said offences range between 3 months and 3 years which were directed to run concurrently.

The two Courts below have concurrently held the Applicant guilty for offences punishable under sections 419, 420, 465 and 468 of the IPC. While the Court of Magistrate additionally convicted the applicant under Section 171 of the IPC, the Sessions Court partly allowed the appeal to the extent that the offence under section 171 of the IPC was not made out against the applicant.

An overall appraisal of the evidence shows that, despite minor variations in their versions, there is enough consistency to show that, the conclusions rendered by the two Courts below cannot be said to be erroneous. Therefore, the emphasis placed on alleged contradictions in the evidence of the said prosecution witnesses, is found to be misplaced by this Court.

The contention strongly canvassed on behalf of the Applicant to the fact that, when all the 3 panch witnesses had turned hostile, the Courts below erred in believing recovery of the said incriminating material. In the present case, although all the 3 panch witnesses turned hostile, the Investigating Officer PW-8 was specifically questioned in the examination-in-chief about the recovery of the aforesaid incriminating material, about which he gave specific statements in support of such recovery. Therefore, the evidence of the Investigating Officer, who actually carried out such recoveries, was brought on record by the prosecution.

The Supreme Court in the case of State v. Sunil, Mohd. Aslam v. State of Maharashtra and Rameshbhai and others v. State of Gujarat, held that, the evidence on recoveries given by the Investigating Officer could not be rejected merely because panch witness had turned hostile, as long as the evidence of the Investigating Officer was convincing. The Hon'ble Supreme Court has held that, it has to be presumed that public servants act honestly and consciously and their evidence is not liable to be discarded merely on the ground that being public servants, they are interested in success of their cases.

Applying the aforesaid yardstick to the evidence of the Investigating Officer in the present case, this Court finds that, such evidence of the Investigating Officer pertaining to recovery of incriminating material is consistent and believable.

There is limited scope in the revisional jurisdiction, exercised by this Court to interfere with concurrent conviction and sentence imposed by the two Courts below. The applicant has failed to demonstrate any glaring error in the findings rendered by the two Courts below for this Court to exercise revisional jurisdiction in his favour. Therefore, the application is found to be without any merits and it is dismissed. Accordingly, the conviction and sentence imposed by the Sessions Court under sections 419, 420, 465 and 468 of the IPC is maintained.

Relevant

Mohd. Aslam vs. State of Maharashtra MANU/SC/2255/2000
; Rameshbhai Mohanbhai Koli and Ors. vs. State of Gujarat MANU/SC/0871/2010

Tags : Conviction Evidence Credibility

Share :

Top

High Court of Madras

R. Arumugasamy Vs. The District Collector, Kancheepuram and Ors.

MANU/TN/4692/2019

22.08.2019

Banking

Aggrieved parties cannot challenge SARFAESI proceedings directly by filing a writ petition without exhausting appeal remedy available to them

The Petitioner is a borrower, who has taken a loan from United Bank of India. The Petitioner defaulted in repaying the said loan, hence, notice was issued by the Tahsildar, to the Petitioner. In the said notice, it is stated that, the District Collector had directed to take possession and handover the same to the Bank pertaining to the house and shop property under Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (SARFAESI Act, 2002) since the Petitioner viz., R. Arumugasamy had failed to repay the amount borrowed from M/s. United Bank of India. The Petitioner is seeking quashing of the notice dated 16.08.2019 issued by the Tahsildar.

As against the notice dated 16.08.2019 issued to the Petitioner, the petitioner has efficacious alternate remedy of approaching the Debts Recovery Tribunal. However, the petitioner has not exhausted the alternate remedy and has approached this Court directly.

The Supreme Court in The Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C., and Agarwal Tracom Private Limited Vs. Punjab National Bank and others, held that the aggrieved parties cannot challenge the SARFAESI proceedings directly by filing a writ petition under Article 226 of the Constitution of India without exhausting the appeal remedy available to them.

In a recent decision of the Supreme Court in ICICI Bank Limited v. Umakanta Mohapatra, the Supreme Court has referred to the decision in Mathew K.C. case, and has observed that despite several judgments, including the decision of Mathew K.C., the High Courts continue to entertain matters which arise under the SARFAESI Act and keep granting interim orders in favour of persons who are Non-Performing Assets. Further, the Supreme Court held that, writ petition filed by the aggrieved party without exhausting the statutory remedy available under the SARFAESI Act and Recovery of Debts Due to Banks and Financial Institutions Act, is not maintainable.

The Supreme Court repeatedly held that, the aggrieved party should file appeal before the Debts Recovery Tribunal under Section 17 of the Act challenging the SARFAESI proceedings and the writ petition filed circumventing such procedure should not be entertained.

Since the Petitioner has got efficacious alternate remedy, present Court is not inclined to interfere and the Petitioner is relegated to remedy of approaching the Debts Recovery Tribunal against the notice issued to him. The writ petition is disposed of.

Relevant

Authorized Officer, State Bank of Travancore and Ors. vs. Mathew K.C. MANU/SC/0054/2018
; Aggarwal Tracom Pvt. Ltd. vs. Punjab National Bank and Ors. MANU/SC/1494/2017
, ICICI Bank Ltd. and Ors. vs. Umakanta Mohapatra and Ors. MANU/SC/1279/2018

Tags : Notice Validity Alternate remedy

Share :