Reading List – December 2014

Wishing you a happy year filled with health, prosperity, love and loads of fun! Happy New Year 2015

State of MP Vs. Parvez Khan – Supreme Court (Dec-01-2014) – If a person is acquitted/discharged, it can’t be inferred that he was falsely involved and had no criminal antecedents — ‘a person cannot be punished in absence of proof beyond reasonable doubt but the standard of proof required for consideration of suitability or otherwise of a candidate was not the same.’ In addition, ‘if a person is acquitted or discharged, it cannot always be inferred that he was falsely involved and he had no criminal antecedents. All that may be inferred is that he has not been proved to be guilty – The Superintendent of Police is the appointing authority. There is no allegation of malafides against the person taking the said decision nor the decision is shown to be perverse or irrational.There is no material to show that the appellant was falsely implicated. Basis of impugned judgment is acquittal for want of evidence or discharge based on compounding. – Supreme Court, relying on the judgment delivered in the Mehar Singh case (2013 (7) SCC685 ), held that ‘Refusal by the competent authority to recruit the respondent on the ground of criminal antecedents is not liable to be interfered with.’

Action Committee Unaided Recognized Private School Vs. Honble Lt.Governor – Delhi High Court (Nov-28-2014) – Sets aside Governor’s guidelines allowing private unaided schools to set their own guidelines for admissions — The power to choose a school has to primarily vest with the parents and not in the administration. In fact, the impugned office orders fail to consider the vitality as well as quality of the school and the specific needs of the individual families and students. In the opinion of this Court, children should have the option to go to a neighbourhood school, but their choice cannot be restricted to a school situated in their locality. This Court is unable to appreciate that a student’s educational fate can be relegated to his position on a map! Having heard the learned counsel for parties, this Court is of the view that private unaided school managements have a fundamental right under Articles 19(1)(g) of the Constitution to run and administer their schools. The concept of autonomy has not only been recognized but also conferred upon private unaided schools by virtue of Section 16(3) of the DSE Act, 1973 and Rule 145 of the DSE Rules, 1973. The right to administer, which includes the right to admit students is subject to reasonable restrictions as prescribed in Article 19(6) of the Constitution. However it is well settled proposition of law that no citizen can be deprived of his fundamental right guaranteed under Article 19(1) of the Constitution in pursuance to an executive action without any authority of law. Executive instruction in the form of an administrative order unsupported by any statutory provision is not a justifiable restriction on fundamental rights.
No misuse or malpractice as admissions to nursery classes were being carried out by private unaided schools in accordance with an earlier notification issued by the Administration in pursuance to the Expert Ganguly Committee Reports appointed by this Court.
The right to establish an educational institution is independent and separate from the right to recognition or affiliation and the statutory authorities can impose conditions for grant of affiliation or recognition; yet this power to impose a condition cannot completely destroy the institutional autonomy and the very object of establishment of the educational institution. TMA Pai Foundation judgment is applicable to Nursery admissions in private unaided non-minority Schools. Article 21-A and article 15(5) of the Constitution have no application to the present Case. Children below the age of six years through their parents have a fundamental right to education and health under Article 21 and the right to choose a particular or specialized school in which they wish to study under Article 19(1)(a) of the Constitution. It is true that in policy matters, the Courts normally do not interfere. Yet it is settled law that if a policy is arbitrary or illegal or irrational or procedurally improper, then it is the bounden duty of the Court to quash it. This Court is of the view that the DSE Act, 1973 needs an extensive relook in view of coming into force of the RTE Act, 2009.

Shlok Bhardwaj Vs. Runika Bhardwaj and Ors. – Supreme Court (Dec-10-2014) – Wife cant pursue dowry case after divorce – “Once the matter was settled between the parties and the said settlement was given effect to in the form of divorce by mutual consent, no further dispute survived between the parties, though it was not so expressly recorded in the order of this Court. No liberty was reserved by the wife to continue further proceedings against the husband. Thus, the wife was, after settling the matter, estopped from continuing the proceedings.

S.Seshachalam and Ors.Etc. Vs. Chairman Bar Council of Tamilnadu and Ors. – Supreme Court (Dec-16-2014) – Intelligible Differentia – Classification of advocates – Advocate Welfare Funds – Pension and other benefits — Whether proviso to Section 16 Explanation II (5) of Tamil Nadu Advocates’ Welfare Fund Act, 1987 denying the payment of two lakh rupees to the kin of advocates receiving pension or gratuity or other terminal benefits would be violative of Article 14 of the Constitution of India and whether distinguishing this class of advocates from other law graduates enrolling in the Bar straight after their law degree did not have any rational basis are the points falling for consideration in these appeals. – In the light of the well-settled principles of interpretation of Article 14, it is to be seen whether there is intelligible differentia between the classification of advocates who had set up practice straight after enrolment and other advocates who start their practice after demitting the office and are in receipt of pension and other benefits and whether the differentia has a nexus with the object of the Act.

Additional District and Sessions Judge, X Vs. Registrar General, High Court of Madhya Pradesh and Ors – Supreme Court (Dec-18-2014) – Sexual harassment accusations by a woman Judge against a sitting High Court Judge-Investigation-In house procedure — In the facts and circumstances of the present case, our conclusions are as under: With reference to the “in-house procedure” pertaining to a judge of a High Court, the limited authority of the Chief Justice of the concerned High Court, is to determine whether or not a deeper probe is required. The said determination is a part of stage-one (comprising of the first three steps) of the “in-house procedure” (elucidated in paragraph 37, hereinabove). The Chief Justice of the High Court, in the present case, traveled beyond the determinative authority vested in him, under stage-one of the “in-house procedure”. The Chief Justice of the High Court, by constituting a “two-Judge Committee”, commenced an in-depth probe, into the allegations levelled by the petitioner. The procedure adopted by the Chief Justice of the High Court, forms a part of the second stage (contemplated under steps four to seven -elucidated in paragraph 37, hereinabove). The second stage of the “in-house procedure” is to be carried out, under the authority of the Chief Justice of India. The Chief Justice of the High Court by constituting a “two-Judge Committee” clearly traversed beyond his jurisdictional authority, under the “in-house procedure”. In order to ensure, that the investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself. The Chief Justice of the High Court is accordingly directed to divest respondent no.3 – Justice ‘A’, of the administrative and supervisory control vested in him, to the extent expressed above. The Chief Justice of the High Court, having assumed a firm position, in respect of certain facts contained in the complaint filed by the petitioner, ought not to be associated with the “in-house procedure” in the present case. In the above view of the matter, the Chief Justice of India may reinitiate the investigative process, under the “in-house procedure”, by vesting the authority required to be discharged by the Chief Justice of the concerned High Court, to a Chief Justice of some other High Court, or alternatively, the Chief Justice of India may himself assume the said role.

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