LAW FOR ALL

Thursday, September 19, 2013

power to fix the final qualifying criteria = whether the University Grants Commission (for short “the UGC”) has got the power to fix the final qualifying criteria, for those who have obtained the minimum marks for all the papers, before the final declaration of the results of the National Eligibility Test (for short “NET”) for the year 2012.= We are of the considered opinion that all the steps taken by the UGC were strictly in accordance with clause 7 of the Notification for the NET Examination, 2012. Prescribing the qualifying criteria as per clause 7, in our view, does not amount to a change in the rule of the game as it was already pre-meditated in the notification. We are not inclined to say that the UGC has acted arbitrarily or whimsically against the candidates. The UGC in exercise of its statutory powers and the laid down criteria in the notification for NET June, 2012, has constituted a Moderation Committee consisting of experts for finalising the qualifying criteria for lectureship eligibility and JRF. UGC acted on the basis of the recommendations made by the Expert Committee. The recommendations made by them have already been explained in the earlier part of the judgment. Reason for making such recommendations has also been highlighted in the Report. We are of the considered view that the candidates were not misled in any manner. Much emphasis has been made on the words “clearing the National Eligibility Test”. “Clearing” means clearing the final results, not merely passing in Paper I, Paper II and Paper III, which is only the initial step, not final. To clear the NET Examination, as already indicated, the candidate should satisfy the final qualifying criteria laid down by the UGC before declaration of the results. We are of the view that, in academic matters, unless there is a clear violation of statutory provisions, the Regulations or the Notification issued, the Courts shall keep their hands off since those issues fall within the domain of the experts. This Court in University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University (2008) 9 SCC 284, has taken the view that the Court shall not generally sit in appeal over the opinion expressed by expert academic bodies and normally it is wise and safe for the Courts to leave the decision of academic experts who are more familiar with the problem they face, than the Courts generally are. UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any “qualifying criteria”, which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India. 30. The Appeals are accordingly allowed and the judgment of the High Court is set aside. The Applications for Impleadment and Intervention are dismissed. There shall be no order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40796
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8355 OF 2013
[Arising out of SLP (Civil) No. 19933 of 2013]

University Grants Commission & Anr. .. Appellants

Versus

Neha Anil Bobde (Gadekar) ... Respondent

WITH

CIVIL APPEAL NO. 8356 OF 2013
[Arising out of SLP (Civil) No.24879 of 2013]

AND
CIVIL APPEAL NO. 8357 OF 2013
[Arising out of SLP (Civil) No.25052 of 2013]

J U D G M E N T

K. S. Radhakrishnan, J.

1. Leave granted.

2. We are, in these appeals, called upon to examine
whether the
University Grants Commission (for short “the UGC”) has got the power to fix
the final qualifying criteria, for those who have obtained the minimum
marks for all the papers, before the final declaration of the results of
the National Eligibility Test (for short “NET”) for the year 2012.

3. We have, before us, a judgment of the Division Bench of the Bombay
High Court, Bench at Nagpur, which ruled that the UGC lacked the competence
to fix the aggregate marks as the final qualifying criteria, after the
candidates obtained the minimum marks, prescribed in the notification dated
6.12.2012 before the declaration of results of NET Examination, agreeing
with a similar view expressed by a learned single Judge of the Kerala High
Court.

4. Let us, at the outset, examine the scope of the University Grants
Commission Act, 1956 (for short “the UGC Act”), the University Grants
Commission Regulations, 2010 etc., which is necessary for a proper
appreciation of the various contentions raised by the learned counsel on
either side.

5. The UGC Act, 1956 was enacted by the Parliament under the provisions
of Entry 66 List I of the Seventh Schedule of the Constitution, which
entitles it to legislate in respect of “co-ordination and determination of
standards in Institutions for higher education or research and scientific
and technical education”. For the said purpose, the Act authorized the
Central Government to establish a commission, by name, the University
Grants Commission. Chapter III of the Act deals with the powers and
functions of the Commission. Section 12 states that it shall be the
general duty of the Commission to take, in consultation with the
Universities or other bodies concerned, all such steps as it may think fit
for the promotion and co-ordination of University education and for the
determination and maintenance of standards of teaching, examination and
research in Universities, and for the purpose of performing its functions
under the Act, the Commission has been bestowed with certain powers under
the Act. Clause (j) of Section 12 reads as under:
“12(j) perform such other functions as may be prescribed or
as may be deemed necessary by the Commission for
advancing the cause of higher education in India or as
may be incidental or conducive to the discharge of the
above functions.”

6. Section 26(1) of the UGC Act confers powers on it to make regulations
consistent with the Act and the Rules. Clauses (e), (f) and (g) of
Section 26 are of some relevance and are given below:
“26.(1) The Commission may, by notification in the Official
Gazette, make regulations consistent with this Act and the
rules made thereunder-
xxx xxx xxx

(e) defining the qualifications that should ordinarily be
required of any person to be appointed to the teaching
staff of the University, having regard to the branch of
education in which he is expected to give instruction;

(f) defining the minimum standards of instruction for the
grant of any degree by any University;

(g) regulating the maintenance of standards and the co-
ordination of work or facilities in Universities.

xxx xxx xxx”

7. UGC, in exercise of its powers conferred under Clauses (e) and (g) of
Section 26(1) of the UGC Act and in supersession of the University Grants
Commission (Minimum Qualifications required for the Appointment and Career
Advancement of Teachers in Universities and Institutions affiliated to it)
Regulations, 2000, issued the University Grants Commission (Minimum
Qualifications for Appointment of Teachers and other Academic Staff in
Universities and Colleges and other Measures for the Maintenance of
Standards in Higher Education)Regulations, 2010. Regulation 2 states that
the minimum qualifications for appointment and other service conditions of
University and College teachers, Librarians and Directors of Physical
Education and Sports as a measure for the maintenance of standards in
higher education, shall be as provided in the Annexure to the above
Regulations. Clause 3.3.1 of the Annexure reads as follows:
“3.3.1. NET/SLET/SET shall remain the minimum eligibility
condition for recruitment and appointment of Assistant
Professors in Universities /Colleges/Institutions.

Provided however, that candidates, who are or have been awarded
a Ph.D Degree in accordance with the University Grants
Commission (Minimum Standards and Procedure for Award of Ph.D
Degree) Regulations, 2009, shall be exempted from the
requirement of the minimum eligibility condition of
NET/SLET/SET for recruitment and appointment of Assistant
Profession or equivalent positions in Universities/
Colleges/Institutions.”

8. Clause 4.0.0 deals with Direct Recruitment. Clause 4.4.0 deals with
Assistant Professor and Clause 4.4.1 deals with various disciplines, like
Art, Humanities etc and qualifications prescribed for them read as follows:

“4.4.1 Arts, Humanities, Sciences, Social Sciences, Commerce,
Education, Languages, Law, Journalism and Mass
Communication

i. Good academic record as defined by the concerned university
with at least 55% marks (or an equivalent grade in a point scale
wherever grading system is follows) at the Master’s Degree level
in a relevant subject from an Indian University, or an
equivalent degree from an accredited foreign university.

ii. Besides fulfilling the above qualifications, the candidate
must have cleared the National Eligibility Test (NET) conducted
by the UGC, CSIR or similar test accredited by the UGC like
SLET/SET.

iii. Notwithstanding anything contained in sub- clauses (i) and
(ii) to this Clause 4.4.1, candidates, who are, or have been
awarded a Ph.D Degree in accordance with the University Grants
Commission (Minimum Standards and Procedure for Award of Ph.D.
Degree) Regulations, 2009 shall be exempted from the requirement
of the minimum eligibility condition of NET/SLET/SET for
recruitment and appointment of Assistant Professor or equivalent
positions in Universities/ Colleges/Institutions

iv. NET/SLET/SET shall also not be required for such Masters
Programmes in disciplines for which NET/SLET/SET is not
conducted.”

9. UGC, in exercise of its powers conferred on it under the various
provisions mentioned hereinabove, is duty bound to conduct the NET for
conferring eligibility for lectureship and for awarding Junior Research
Fellowship (for short “JRF”). UGC conducts such a test every year.

10. UGC, in its 482nd meeting held on 22.12.2011, decided as under:
“During the course of discussion, the Commission also
deliberated in detail the issues pertaining to objectivity in marking
of Paper-III, transparency, reducing the inter and intra-examiner
variability in marking of Paper-III, delays in declaration of NET
results, recommendations of the NET Moderation Committees to switch
over Paper-III from descriptive to objective type on the pattern of
CSIR- NET Examination wherein all the three papers are of objective
type.

Having regard to the above, the Commission decided that Paper-
III be converted into objective type from the ensuing examination
scheduled in June 2012. Further, the Commission also recommended that
the action may also be initiated for the development of question
banks.”

11. Notification for the NET examination was accordingly published on
06.02.2012 for determination of the eligibility of Indian Nationals for the
award of JRF and the eligibility for lectureship in Indian Universities and
Colleges.

12. UGC, under that Notification, announced that NET would be held on
24th June, 2012 and the candidates were directed to read the notification
carefully before submission of the application form. Clause 3 refers to
the condition of eligibility and Para 7 of the Notification deals with the
Scheme and date of test. Operative portion of Para 7 is given below for
easy reference :-
“7. SCHEME AND DATE OF TEST:

i) The UGC-NET will be conducted in objective mode from June
2012 onwards. The Test will consist of three papers. All the
three papers will consist of only objective type questions and
will be held on 24th June, 2012 (SUNDAY) in two separate
sessions as under:

|Session |Paper |Marks |Number of Question |Duration |
|First |I |100 |60 out of which 50 |1 ¼ Hours |
| | | |questions to be |(09.30 A.M. |
| | | |attempted |to 10.45 |
| | | | |A.M.) |
|First |II |100 |50 questions are |1 ¼ Hours |
| | | |compulsory |(10.45 to |
| | | | |12.00 Noon) |
|Second |III |150 |75 questions all |2 ½ Hours |
| | | |are compulsory |(01.30 P.M. |
| | | | |to 04.00 |
| | | | |P.M.) |

Paper- I shall be of general nature, intended to assess the
teaching/research aptitude of the candidate. It will primarily
be designed to test reasoning ability, comprehension, divergent
thinking and general awareness of the candidate. Sixty (60)
multiple choice questions of two marks each will be given, out
of which the candidate would be required to answer any fifty
(50). In the event of the candidate attempting more than fifty
questions, the first fifty questions attempted by the candidate
would be evaluated.

Paper-II shall consist of 50 objective type compulsory questions
based on the subject selected by the candidate. Each question
will carry 2 marks.

Paper-III shall consist of 75 objective type compulsory
questions from the subject selected by the candidate. Each
question will carry 2 marks.

The candidate will have to mark the responses for questions of
Paper-I, Paper-II and Paper-III on the Optical Mark Reader (OMR)
sheet provided along with the Test Booklet. The detailed
instructions for filling up the OMR Sheet will be sent to the
candidate along with the Admit Card.

The candidates are required to obtain minimum marks separately
in Paper-I, Paper-II and Paper-III as given below:

| |Minimum Marks (%) to be obtained |
|CATEGORY |PAPER-I |PAPER-II |PAPER-III |
| GENERAL |40 (40%) |40 (40%) |75 (50%) |
|OBC (Non-creamy |35 (35%) |35 (35%) |67.5 (45%) |
|layer | | |rounded off |
| | | |to 68 |
|PH/VH/SC/ST |35 (35%) |35 (35%) |60 (40%) |

Only such candidates who obtain the minimum required marks in
each Paper, separately, as mentioned above, will be considered
for final preparation of result. However, the final qualifying
criteria for Junior Research Fellowship (JRF) and Eligibility
for Lectureship shall be decided by UGC before declaration of
result.”

13. UGC, accordingly, conducted the examination on 24th June, 2012. On
17th September, 2012, the Moderation Committee constituted by the UGC
consisting of the Chairman and Secretary, UGC, former Director, NCERT,
former Member of the UGC, Vice-Chancellor, Central University of Gujarat,
Vice-Chancellor, Tripura University, Vice-Chancellor, Delhi University,
Head, Dept. of Bio-Technology, University of Madras, Vice-Chancellor, Doon
University and few other experts, met for finalising the “Qualifying
Criteria” for Lectureship eligibility and took the following decision :-

“II. CONSIDERATION ZONE FOR UGC-NET
The candidates are required to obtain minimum marks separately
in Paper-I, Paper-II and Paper-III as given below:

Table (i)
|Category |Minimum marks (%) to be obtained |
| |Paper-I |Paper-II |Paper-III |
|General |40(40%) |40(40%) |75 (50%) |
|OBC |35(35%) |35(35%) |67.5(45%) |
| | | |rounded off |
| | | |to 68) |
|SC/ST/PWD |35(35%) |35(35%) |60(40%) |

Only such candidates who obtain the minimum required marks in
each Paper, separately, as mentioned above, were to be
considered for final preparation of result. As many as 2.04,150
candidates fell in the above-mentioned consideration zone.

III. QUALIFYING CRETERIA FOR LECTURESHIP ELIGIBILITY

Taking cognizance of the consideration zone described above, the
final qualifying criteria for Junior Research Fellowship (JRF)
and Eligibility for Lectureship are to be determined by the
Moderation Committee for declaration of result.

In addition to the consideration zone described above, the
Committee decided to establish another category-wise benchmark
for Lectureship Eligibility, i.e. aggregate percentage of all
the three papers. Thus, the proposed qualifying criteria for
Lectureship Eligibility are as follows:

Table (ii)
|Category |Minimum Qualifying Percentage |
| |Paper-I |Paper-II |Paper-III |Aggregate |
|General |40 % |40 % |50 % |65 % |
|OBC |35 % |35 % |45 % |60 % |
|SC/ST/PWD |35 % |35 % |40 % |55 % |

As per the above criteria, it was found by the Committee that a
total of 43974 candidates qualify for lectureship eligibility.”

14. The Committee recommended that the General, OBC (Non-Creamy Layer)
and SC/ST/PWD candidates would be required to obtain an aggregate
percentage of 65%, 60% and 55% respectively in addition to the paper-wise
minimum percentage presented in clause 7 of the UGC NET Notification for
June 2012, as qualifying criteria. Based on the recommendations of the
Moderation Committee, result was declared on 18th September, 2012 and the
category-wise qualifying criteria to the UGC-NET examination held on 24th
June, 2012 was as under :

“Category-Wise Qualifying Criteria for Lectureship Eligibility in UGC-
NET held on 24th June, 2012:

|Category |Minimum Qualifying Percentage |
| |Paper-I |Paper-II |Paper-III |Aggregate |
|General |40 % |40 % |50 % |65 % |
|OBC (Non Creamy |35 % |35 % |45 % |60 % |
|Layer) | | | | |
|SC/ST/PWD |35 % |35 % |40 % |55 % |

15. UGC later received some representations regarding the criteria
adopted for the NET-JUNE 2012 and keeping in view the same, the Commission
met on 20.10.2012 and set up a five member Expert Committee from amongst
the Commission Members for examining the representations/grievances related
to NET-JUNE 2012 and re-visit the results, if found necessary. The
Committee, after examining the representations, recommended as under:-
“(i) Grievances related to insufficient information in the
advertisement: The Committee noted that the advertisement clearly
stated that securing minimum marks required in each paper do not
amount to eligibility for the purpose of NET. In the past, scores in
all the three papers were taken into account while preparing the list
of selected candidates for the purposes of JRF. At the same time, the
Committee felt that in future the announcement should make it very
clear that the scores in all the three papers shall be taken into
account for NET as well as JRF and that Eligibility for NET shall be
determined separately for each subject by taking into account the
performance of all the candidates.

(ii) Grievances related to the uniform and high cut-off for UGC-NET
across various disciplines: The Committee examined the pattern of
marks secured in different subjects and the proportion of candidates
who were eligible for UGC-NET based on the uniform cut-off approved by
the Moderation Committee. It noted that the proportion of students
who made it varied hugely across the subjects, from above 30% to as
low as less than 1% in many subjects. The Committee felt that this
method puts candidates from several subjects to disadvantage. A fair
method must also take into account the performance relative to other
candidates. Accordingly, the Committee recommended a correction in
the list of candidates eligible for UGC-NET held in June 2012. For
this correction, additional criteria (b below) shall be used and any
candidate who meets either of the following two criteria shall be
eligible for UGC-NET:

a) Those candidates who had made it to the consideration zone, i.e.
those who received a minimum of 40%, 40% & 50% marks in Paper-I,
Paper-II and Paper-III respectively for General Category; 35%, 35%
& 45% marks in Paper-I, Paper-II and Paper-III respectively for OBC
(Non-Creamy Layer) Category and 35%, 35% & 40% marks in Paper-I,
Paper-II and Paper-III respectively for SC/ST/PWD Category and
those who secured aggregate percentage (obtained by combining marks
of Paper-I, II & III) of 65% for General Category, 60% for OBC (Non-
Creamy Layer) and 55% for SC/ST/PWD category candidates (This is
the same criterion as described by the earlier Moderation
Committee).
OR
b) Those candidates who figure among top 7% of all the candidates who
appeared in NET; this shall be calculated separately for each
discipline and for each category (SC/ST/OBC (Non-Creamy Layer)/PWD.
Accordingly a cut-off will be determined for each subject and each
category for this purpose. In case of tie (when several students
have same identical aggregate marks) all the candidates appearing
at the qualifying marks shall be included. Candidates who do not
secure minimum required score in each paper and are therefore not
in the consideration zone, will not be included in this list even
if they fall among the top 7% within their subject and category.

xxx xxx xxx
xxx xxx xxx”

16. The Committee revisited the results and decided to qualify a few
additional candidates for JRF and eligibility for lectureship both and
eligibility for lectureship only. Accordingly, UGC prepared supplementary
result qualifying 15,178 additional candidates which was declared on
12.11.2012. This was in addition to the candidates declared as qualified
in the original result of June 2012 UGC-NET declared on 18.9.2012.
17. Altogether 5,71,630 candidates appeared in the UGC-NET Examination,
2012, out of which 2,04,150 candidates got the minimum marks prescribed
separately in Paper I, Paper II and Paper III and fell in the consideration
zone. From that, 57,550 candidates were declared passed in the NET
Examination for the year 2012, applying the qualifying criteria laid down
by the Expert Committee of the UGC.

18. We notice, the candidates who have obtained the minimum marks in
Paper I, Paper II and Paper III approached the High Court of Bombay at
Nagpur Bench seeking a declaration that the change of qualifying criteria
reflected in the final declaration of results is arbitrary, illegal and
without authority of law and is violative of Article 14 of the Constitution
of India. Further, it was also stated that the declaration of NET alone
being the minimum eligibility standard, UGC has attempted to fix the
Aggregate Criteria as an additional qualifying criteria, which action of
the UGC goes beyond the scope of the notification. Further, it was also
pointed out that if at all the UGC has got the power to fix any additional
qualifying criteria prior to the declaration of results, the same should
have been notified at the time of taking the NET examination. Further, it
was also the case of the writ petitioners that the object of prescribing
NET is only to have uniform standards of lecturers to be appointed across
the country and to remove the disparity in evaluation by awarding the
degrees by various Universities and that the UGC is not a recruiting
authority. UGC, according to the candidates, is only expected to
prescribe uniform standards and not to superimpose any further qualifying
criteria before the declaration of the results. The High Court found favour
with the contentions raised by the writ petitioners and allowed the writ
petition and directed the UGC to declare the results with reference to the
minimum marks prescribed for passing those papers. Aggrieved by the same,
these appeals have been preferred by the UGC.

19. We have heard counsel on the either side at length. Let us, at the
outset, point out that the power of the UGC to set the standard of
qualifying criteria, as such, is not disputed but, it was pointed out, such
qualifying criteria ought to have been notified and made known to the
candidates before taking the examination on 24th June, 2012. After
prescribing that the candidates were required to obtain minimum marks
separately in Paper I, Paper II and Paper III, there is no justification in
superimposing an additional qualifying criteria before the declaration of
the results.

20. We have elaborately referred to various statutory provisions which
would clearly indicate that the UGC as an expert body has been entrusted by
UGC Act the general duty to take such steps as it may think fit for the
determination and maintenance of standards of teaching, examination and
research in Universities. It is also duty bound to perform such functions
as may be prescribed or as may be deemed necessary by the Commission for
advancing the cause of higher education in India. The UGC has also got the
power to define the qualification that should ordinarily be required for
any person to be appointed to the teaching staff of the University and to
regulate the maintenance of standards and coordination of work and
faculties in the Universities.

21. This Court in University of Delhi v. Raj Singh 1994 Supp. (3) SCC 516
dealt with the powers of UGC elaborately and held as follows:
“20. The ambit of Entry 66 has already been the subject of the
decisions of this Court in the cases of the Gujarat University v.
Krishna Ranganath Mudholkar 1963 Supp 1 SCR 112 and the Osmania
University Teachers’ Association v. State of Andhra Pradesh (1987) 4
SCC 671. The UGC Act is enacted under the provisions of Entry 66 to
carry out the objective thereof. Its short title, in fact, reproduces
the words of Entry 66. The principal function of the UGC is set out in
the opening words of Section 12, thus:

“It shall be the general duty of the Commission to take …
all such steps as it may think fit for the promotion and
coordination of University education and for the determination
and maintenance of standards of teaching, examination and
research in Universities ….”

It is very important to note that a duty is cast upon the Commission
to take “all such steps as it may think fit … for the determination
and maintenance of standards of teaching”. These are very wide-ranging
powers. Such powers, in our view, would comprehend the power to
require those who possess the educational qualifications required for
holding the post of lecturer in Universities and colleges to appear
for a written test, the passing of which would establish that they
possess the minimal proficiency for holding such post. The need for
such test is demonstrated by the reports of the commissions and
committees of educationists referred to above which take note of the
disparities in the standards of education in the various Universities
in the country. It is patent that the holder of a postgraduate degree
from one University is not necessarily of the same standard as the
holder of the same postgraduate degree from another University. That
is the rationale of the test prescribed by the said Regulations. It
falls squarely within the scope of Entry 66 and the UGC Act inasmuch
as it is intended to co-ordinate standards and the UGC is armed with
the power to take all such steps as it may think fit in this behalf.
For performing its general duty and its other functions under the UGC
Act, the UGC is invested with the powers specified in the various
clauses of Section 12. These include the power to recommend to a
University the measures necessary for the improvement of University
education and to advise in respect of the action to be taken for the
purpose of implementing such recommendation [clause (d)]. The UGC is
also invested with the power to perform such other functions as may be
prescribed or as may be deemed necessary by it for advancing the cause
of higher education in India or as may be incidental or conducive to
the discharge of such functions [clause (j)]…………”

22. The judgment referred to above was later followed in University
Grants Commission v. Sadhana Chaudhary and Others (1996) 10 SCC 536,
wherein this Court dealt with the recommendation of the Malhotra Committee
and the powers of UGC. Reference may also be made to another judgment of
this Court in Annamalai University represented by Registrar v. Secretary to
Government, Information and Tourism Department and Others (2009) 4 SCC 590,
wherein this Court reiterated that the UCG Act was enacted for effectuating
co-ordination and determination of standards in universities and colleges.

23. UGC, in exercise of its powers conferred under clauses (e) and (g) of
Section 26(1) of the UGC Act, issued the UGC (Minimum Qualification of
Teachers and other Academic Staff in Universities and Colleges and other
measures for Maintenance of Standards of Higher Education) Regulations,
2010. Clause 3.3.1 of the Regulation specifically states the NET shall
remain the minimum eligibility condition for recruitment and for
appointment of Assistant Professors in the
Universities/Colleges/Institutions. Clause 4.4.1 stipulates that before
fulfilling the other prescribed qualifications, the candidates must have
cleared the National Eligibility Test conducted by the UGC. Therefore, the
power of the UGC to prescribe, as it thinks fit¸ the qualifying criteria
for maintenance of standards of teaching, examination etc. cannot be
disputed. It is in exercise of the above statutory powers, the UGC has
issued the notification for holding the NET on 24th June, 2012. Para 7 of
the Notification deals with the Scheme of the Act which clearly indicates
that the candidates are required to obtain minimum marks separately in
Paper I, Paper II and Paper III. It also clearly indicates that only such
candidates who obtain minimum required marks in each paper will be
considered for final preparation of results. The final qualifying
criteria for JRF and eligibility for lectureship shall be decided by UGC
before declaration of result. Above clause deals with the following
requirements to be followed before the final declaration of the results:-
i) Candidates to obtain minimum marks separately in Paper I, Paper
II and Paper III;
ii) Candidates who have satisfied the above criteria only would be
subjected to a qualifying criteria before the final preparation of
result; (Consideration Zone)
iii) UGC has to fix the final qualifying criteria before the declaration
of results.

24. Candidates are seeking final declaration of results the moment they
have obtained the minimum marks separately in Paper I, Paper II and Paper
III, ignoring the other two steps, referred to hereinbefore, and also
forgetting the fact that only those who obtain the minimum required marks
alone will fall in the consideration zone. All these steps, as we have
referred to above, have been clearly stipulated in the notification for NET
Examination, 2012.

25. We find, 2,04,150 candidates have obtained the minimum marks
separately in Paper I, Paper II and Paper III. All those candidates were
subjected to a final qualifying criteria fixed by the Committee constituted
by the UGC, since they fell within the Consideration Zone. Applying the
final qualifying criteria, the Committee made the following recommendations
:-
i) The Committee recommended that a total of 43,974 candidates may
be declared qualified for lectureship eligibility as per the
qualifying criteria given below :-

|Category |Minimum Qualifying Percentage |
| |Paper-I|Paper-II |Paper-III |Aggregate |
|General |40 % |40 % |50 % |65 % |
|OBC (Non Creamy |35 % |35 % |45 % |60 % |
|Layer) | | | | |
|SC/ST/PWD |35 % |35 % |40 % |55 % |

ii) The Committee recommended that the NET Bureau may finalize the
JRF awardees as per the criteria mentioned above out of those
candidates who had opted for JRF and have qualified for lectureship
eligibility.

iii) The Committee authorized the Chairman, University Grants Commission
to declare the result for eligibility for lectureship and Junior
Research Fellowship as recommended by the Moderation Committee.

While concluding the deliberations, the Committee expressed the
appreciation for the painstaking effort of the NET Bureau in analyzing
the results and presenting its findings.

26. We notice, based on the recommendations of the Expert Committee, the
final results were declared and 43,974 candidates were declared qualified
for lectureship eligibility as per the qualifying criteria. As already
indicated, some more relaxation was also granted in favour of those persons
who got the minimum qualifying marks since those candidates figured amongst
the top 7% of all the candidates who appeared in NET, which was in addition
to the candidates declared as qualified in the original result declared on
18.9.2012. 15,178 candidates were benefitted by that relaxation.
Consequently, as already stated, a total of 57,550 candidates were declared
passed in the NET Exam. 2012.

27. We are of the considered opinion that all the steps taken by the UGC
were strictly in accordance with clause 7 of the Notification for the NET
Examination, 2012. Prescribing the qualifying criteria as per clause 7,
in our view, does not amount to a change in the rule of the game as it was
already pre-meditated in the notification. We are not inclined to say that
the UGC has acted arbitrarily or whimsically against the candidates. The
UGC in exercise of its statutory powers and the laid down criteria in the
notification for NET June, 2012, has constituted a Moderation Committee
consisting of experts for finalising the qualifying criteria for
lectureship eligibility and JRF. UGC acted on the basis of the
recommendations made by the Expert Committee. The recommendations made by
them have already been explained in the earlier part of the judgment.
Reason for making such recommendations has also been highlighted in the
Report.

28. We are of the considered view that the candidates were not misled in
any manner. Much emphasis has been made on the words “clearing the
National Eligibility Test”. “Clearing” means clearing the final results,
not merely passing in Paper I, Paper II and Paper III, which is only the
initial step, not final. To clear the NET Examination, as already
indicated, the candidate should satisfy the final qualifying criteria laid
down by the UGC before declaration of the results.

29. We are of the view that, in academic matters, unless there is a clear
violation of statutory provisions, the Regulations or the Notification
issued, the Courts shall keep their hands off since those issues fall
within the domain of the experts. This Court in University of Mysore vs.
C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim
University (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal
University (2008) 9 SCC 284, has taken the view that the Court shall not
generally sit in appeal over the opinion expressed by expert academic
bodies and normally it is wise and safe for the Courts to leave the
decision of academic experts who are more familiar with the problem they
face, than the Courts generally are. UGC as an expert body has been
entrusted with the duty to take steps as it may think fit for the
determination and maintenance of standards of teaching, examination and
research in the University. For attaining the said standards, it is open
to the UGC to lay down any “qualifying criteria”, which has a rational
nexus to the object to be achieved, that is for maintenance of standards of
teaching, examination and research. Candidates declared eligible for
lectureship may be considered for appointment as Assistant Professors in
Universities and colleges and the standard of such a teaching faculty has a
direct nexus with the maintenance of standards of education to be imparted
to the students of the universities and colleges. UGC has only implemented
the opinion of the Experts by laying down the qualifying criteria, which
cannot be considered as arbitrary, illegal or discriminatory or violative
of Article 14 of the Constitution of India.

30. The Appeals are accordingly allowed and the judgment of the High
Court is set aside. The Applications for Impleadment and Intervention are
dismissed. There shall be no order as to costs.

..…………………………….J.
(K.S. Radhakrishnan)

…….………………………J.
(A.K. Sikri)
New Delhi,
September 19, 2013.

jurisdiction of a Single Judge and of Benches of the Court.= JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COURT 1. Cases ordinarily to be heard by a single Judge—Subject to the provisos hereinafter set forth the following classes of cases shall ordinarily be heard and disposed of by a Judge setting alone: (i) to (xvii) xxx xxx xxx (xviii) (a) Application or petition under Article 226 of the Constitution of India for the issue of any directions, orders or writs in the nature of Mandamus, prohibition, quo-warranto or certiorari for the enforcement of fundamental rights conferred by Part III of the Constitution of India or for any other purpose, except: (i) Petitions where vires of Acts or statutory rules, regulations, or bye-laws are challenged. (ii) Petitions where personal liberty is involved. (iii) Petitions pertaining to all Revenue/tax matters including entertainment taxes, except Municipal Tax. (iv) Petitions arising from the orders of the Board for Industrial and Financial Reconstruction/Appellate Authority for Industrial and Financial Reconstruction or seeking directions to them; and (v) Petitions pertaining to Public Interest litigation. (vi) Petitions pertaining to the award to Tenders. (vii) Petitions relating to Co-operative Societies. (viii) Petitions being service matters of Armed Forces of the Union. (ix) Petitions arising out of Land Acquisition. (x) Petitions concerning orders passed by the High Court on the administrative side. Provided that as regards pending cases, the learned single Judge may hear the part-heard matters. Explanation: The preliminary hearing for admission and final disposal of applications and petitions pertaining to matters mentioned in clause (i) to (x) of sub-rule (xviii)(a) above shall however be before a Bench of two Judges and before a Single Bench when there is no sitting of Division Bench.” Rule 4, which relates to jurisdiction of a Bench of two Judges, also reads as under: “4. All cases to be disposed of by a Bench of two Judges save as provided by law or by these rules—Save as provided by law or by these rules or by special order of the Chief Justice, all cases shall be heard and disposed of by a Bench of two Judges.” A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible. 15. We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost. In the result, the appeal is allowed and the impugned order is set aside. The writ petition filed by respondent No.1 shall now be listed before a Single Judge of the High Court, who shall decide the same without being influenced by the observations contained in the impugned order or this order.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40797
NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 8288 OF 2013
(Arising out of SLP (C) No. 27387 of 2012)

M/s. Monnet Ispat and Energy Limited
....Appellant

versus

Jan Chetna and others ....Respondents

O R D E R

G.S. SINGHVI, J.

1. Whether the Division Bench of the Delhi High Court could have
entertained and allowed the petition filed by respondent No.1 as Public
Interest Litigation for setting aside order dated 31.12.2008 passed by
National Environment Appellate Authority (for short, ‘NEAA’) and remanded
the case to the competent quasi judicial forum for being decided on merits.

2. The appellant is a company incorporated under the Companies Act,
1956. Its registered office is at Raipur (Chhattisgarh). On 27.6.2007, the
appellant submitted an application to Chhattisgarh Environment and
Conservation Board (respondent No.3) for sanctioning the proposed expansion
of its existing plant at Naharpali, Kharsia, Raigarh. Respondent No.3
issued notice dated 4.8.2007 under the Environment Protection Act, 1986 and
the Rules framed thereunder for holding public hearing. As many as 700
persons participated in the public hearing. Thereafter, respondent No.3
sent report dated 4.10.2007 to the Ministry of Environment and Forests
(respondent No.2), which granted environmental clearance for the project of
the appellant.

3. Two days before the date fixed for public hearing, Shri Ramesh
Agrawal and two others, namely, Ms. Ranjana Rajput and Mr. Vinod
Chhaparlya filed Civil Suit No.30-A/ 2007 in the Court of District Judge,
Raigarh (for short, ‘the trial Court’) impleading the appellant as a
defendant and prayed for grant of a declaration that the appellant had
illegally set up industry at Villages Naharpali, Bhupdevpur, Salihabhata
and Singhanpur. They further prayed for ordering closure of the industry
and for issue of a permanent injunction against the holding of public
hearing for expansion of the existing industry and / or establishment of
any new industry by the appellant.

4. Along with the suit, the plaintiffs filed an application under Order
39 Rules 1 and 2 CPC for stay of the public hearing. By order dated
4.8.2007, the trial Court dismissed the application for temporary
injunction. After six days, Shri Ramesh Agrawal and two others filed
another application for injunction but no order appears to have been passed
on that application.

5. After 2 months and 20 days of rejection of the injunction application
filed by Shri Ramesh Agrawal and two others, Shri Ram Kumar Agarwal and
Shri Ramesh Sharma filed Writ Petition No.5534/2007 before the Chhattisgarh
High Court under the name and style of “Ekta Parishad” and prayed that the
State Government may be directed to conduct an inquiry into the correctness
and genuineness of the Environment Impact Assessment Report prepared by
respondent No.3. Later on, the writ petitioners withdrew their cause.

6. The environment clearance granted by respondent No.2 was challenged
by respondent No.1 by filing an appeal under the National Environment
Appellate Authority Act, 1997 (for short, ‘the 1997 Act’). On notice,
respondent No.3 filed reply and pleaded that environment clearance was
granted to the appellant in accordance with law. NEAA dismissed the appeal
of respondent No.1 vide order dated 31.12.2008 by recording the following
observations:

"10. The Counsel for Appellant submitted the proceedings of the draft
constitution of Jan Chetna on 24.11.2008 without supporting affidavit
which was required to be filed under the NEAA Rules, 1997 for taking
responsibility of the authenticity of the facts stated in the
document. The Counsel for the Appellant mentioned that the affidavit
is required to be filed only while filing the Memorandum of Appeal
under the NEAA Rules and not with the subsequent document. The
Authority perused the draft proceedings of the meeting dated 15.2.2005
and observed that only 10 persons have formed the association called
"Jan Chetna". Out of 10 members only two members complete address are
given in the proceedings. From the addresses so given, it may be
inferred that none of the members of "Jan Chetna" belong to Naharpali,
Kharsia, Raigarh, the project area. Further the minutes of the meeting
dated 15.2.2008 shows that Shri Rajesh Tripathi was given
responsibility of preparation of authorization letter in favour of
Ramesh Aggarwal and issue the same to oppose the Environmental
Clearance granted to the Respondent No.3. As per serial number 12 of
the proceedings dated 10.5.2005, Shri Rajesh Tripathi's address for
communication etc., would be No.159, Kelo Vihar, Raigarh. But, it is
found that the Authorisation letter issued by Shri Rajesh Tripathi
bearing the address of Satyam Kunj, Naya Gunj, Raigarh, which was the
address of Shri Ramesh Aggarwal and there was no mention of
designation of Shri Rajesh Tripathi in this letter. This action of the
Appellant creates doubt about the authenticity of the authorization
letter so issued. From the above it is clear that neither of the
members of the "Association" - Jan Chetna as aggrieved persons as
claimed in para 4(iv) above nor it has been authorized by the primary
aggrieved persons.
The Appellant has not disclosed all material
facts for the purpose of adjudication of the Appeal. While considering
the legality of secondary public injury complaints by the Hon'ble
Supreme Court in S.P. Gupta Vs. UOI (1981), See SCC 87 held as follow:

".......... in such cases a member of the public having
sufficient interest can certainly maintain an action challenging
the legality of such acts or omissions but if the person or
specific class or group of persons who are primarily injured by
such acts or omissions, do not wish to claim any relief and
accept such act or omission willingly and without protest, the
member of public who complaints of a secondary public injury
cannot maintain the action."

The Appellant has failed to prove that its association is acting on
behalf and in the interest of people who are or may be affected by the
grant of Environmental Clearance by Respondent No.1.

Having perused all the submissions and the documents filed by the
Appellant and the Respondents, the Authority conclude that the
Appellant organization - Jan Chetna is not an association of persons
likely to be affected by the order of the Environmental Clearance
granted to Respondent No.3 by Respondent No.1. Therefore, the
Appellant organization - Jan Chetna is not qualified to file an Appeal
before this Authority under Section 11(2)(c) of the NEAA Act, 1997.
Accordingly, the Appeal filed by the Appellant is not maintainable.”

7. Respondent No.1 challenged the aforesaid order in Writ Petition (C)
No. 8399 of 2009, which was described as a Public Interest Litigation and
prayed that order dated 31.12.2008 passed by NEAA may be set aside and a
direction be issued to NEAA to decide the appeal on merits. Respondent
No.1 claimed that it was a representative body of those affected by the
environmental clearance granted in favour of the appellant and, therefore,
it had the locus to challenge the decision taken by respondent No.2.

8. In the counter affidavit filed by the appellant, several objections
were taken to the maintainability of the petition. It was pleaded that in
the garb of filing a Public Interest Litigation, respondent No.1 was
seeking annulment of the order passed by NEAA and such relief could be
claimed only by filing a regular petition under Article 226 of the
Constitution, which is required to be heard and decided by a Single Judge.
The appellant also referred to the pendency of Writ Petition(C)
No.5534/2007 before the Chhattisgarh High Court and pleaded that the writ
petition filed before the Delhi High Court was an abuse of the process of
the Court. Another plea taken by the appellant was that the entire cause
of action for filing the petition had accrued in Chhattisgarh and the Delhi
High Court did not have the jurisdiction to entertain the petition filed by
respondent No.1.

9. The Division Bench of the High Court did take cognizance of the
objections taken by the appellant but did not deal with the same except the
one relating to territorial jurisdiction of the Delhi High Court and
overruled the same. On merits, the Division Bench relied upon judgment
dated 14.9.2009 passed by a coordinate Bench in LPA No.277/2009 Vedanta
Alumina Ltd. v. Prafulla Samantra and others wherein it was held that an
organisation, which is working in the area and is closely following the
issue of setting up of industries and impact thereof on the environment
falls in the category of a ‘person aggrieved’ and concluded that NEAA
committed serious error by dismissing the appeal of respondent No.1 on the
ground of lack of locus.

10. We have heard Dr. A.M. Singhvi, learned senior counsel for the
appellant and Shri Sanjay Parikh, learned counsel for respondent No.1 and
perused the record.

11. Shri Parikh made strenuous efforts to convince the Court that the
hypertechnical objection raised by the appellant should not be entertained
and in view of the judgment rendered by the Division Bench of the High
Court in Vedanta Alumina Ltd. v. Prafulla Samantra (supra), the special
leave petition should be dismissed.

12. We have considered the submission of the learned counsel but have not
felt impressed.

13. Chapter 3 Part A of the Delhi High Court Rules contains rules
relating to the practice of the High Court in the hearing of causes and
other matters. Part B contains rules relating to the jurisdiction of a
Single Judge and of Benches of the Court. The relevant clauses of Rule 1 of
Part B read as under:

“Part B

JURISDICTION OF A SINGLE JUDGE AND OF BENCHES
OF THE COURT

1. Cases ordinarily to be heard by a single Judge—Subject to the
provisos hereinafter set forth the following classes of cases
shall ordinarily be heard and disposed of by a Judge setting
alone:

(i) to (xvii) xxx xxx xxx

(xviii) (a) Application or petition under Article 226 of the
Constitution of India for the issue of any directions, orders or
writs in the nature of Mandamus, prohibition, quo-warranto or
certiorari for the enforcement of fundamental rights conferred
by Part III of the Constitution of India or for any other
purpose, except:

(i) Petitions where vires of Acts or statutory rules,
regulations, or bye-laws are challenged.

(ii) Petitions where personal liberty is involved.

(iii) Petitions pertaining to all Revenue/tax matters
including entertainment taxes, except Municipal Tax.

(iv) Petitions arising from the orders of the Board for
Industrial and Financial Reconstruction/Appellate Authority
for Industrial and Financial Reconstruction or seeking
directions to them; and

(v) Petitions pertaining to Public Interest litigation.

(vi) Petitions pertaining to the award to Tenders.

(vii) Petitions relating to Co-operative Societies.

(viii) Petitions being service matters of Armed Forces of
the Union.

(ix) Petitions arising out of Land Acquisition.

(x) Petitions concerning orders passed by the High Court on
the administrative side.

Provided that as regards pending cases, the learned single Judge
may hear the part-heard matters.

Explanation: The preliminary hearing for admission and final
disposal of applications and petitions pertaining to matters
mentioned in clause (i) to (x) of sub-rule (xviii)(a) above
shall however be before a Bench of two Judges and before a
Single Bench when there is no sitting of Division Bench.”

Rule 4, which relates to jurisdiction of a Bench of two Judges, also reads
as under:
“4. All cases to be disposed of by a Bench of two Judges save as
provided by law or by these rules—Save as provided by law or by
these rules or by special order of the Chief Justice, all cases
shall be heard and disposed of by a Bench of two Judges.”

14. A bare reading of the above reproduced provisions makes it clear that
the petition filed by respondent No.1 for quashing order dated 31.12.2008
could be heard only by Single Bench of the Delhi High Court. However, by
disguising the petition as a Public Interest Litigation, respondent No.1
succeeded in getting the same listed before the Division Bench of the High
Court. Unfortunately, the Division Bench did not deal with the objection
raised by the appellant to the maintainability of the petition filed by
respondent No.1 and proceeded to decide the matter on merits which, in our
considered view, was legally impermissible.

15. We are not suggesting that respondent No.1 had indulged in Bench
hunting but it needs to be emphasised that every Bench of the High Court
should scrupulously follow the relevant rules and should not violate
statutory provisions specifying its jurisdiction, else the sanctity of the
rules relating to distribution of causes between the Single, the Division
Bench and larger Benches will be lost.

16. In the result, the appeal is allowed and the impugned order is set
aside. The writ petition filed by respondent No.1 shall now be listed
before a Single Judge of the High Court, who shall decide the same without
being influenced by the observations contained in the impugned order or
this order.

17. While disposing of the appeal in the manner indicated above, we
consider it necessary to make it clear that this Court has not expressed
any opinion on the merits of the case and the parties shall be free to
advance all legally permissible arguments before the learned Single Judge
of the High Court.

…………………………J.
(G.S.SINGHVI)

…………………………J.
(V. GOPALA GOWDA)
NEW DELHI;
SEPTEMBER 19, 2013.
-----------------------
9

Paid Great Homage to Dr. M. Padmanabhacharlu on 18-9-2013 at Darbar Hall Mourya Inn Kurnool

శ్రీ T.G. వెంకటేష్ చిన్న నీటి పారుదల శాఖ మంత్రివర్యులు
శ్రీ M.D.Y. రామ మూర్తి సీనియర్ అడ్వకేట్
శ్రీ శ్రీ శ్రీ స్వామీజీ
శ్రీ రఘు రామయ్య
శ్రీ శివాజీ స్పూర్తి కేంద్రం

Saturday, September 14, 2013

What emerges from the above discussion can be summarized in the form of following directions: (i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. (ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information. (iii) Filing of affidavit with blank particulars will render the affidavit nugatory. (iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced. (v) We clarify to the extent that Para 73 of People’s Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. (vi) The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank. (vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her. 28) The Writ Petition is disposed of with the above directions.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40768
REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

1 WRIT PETITION (CIVIL) NO. 121 OF 2008

Resurgence India .... Petitioner (s)

Versus

Election Commission of India & Anr. .... Respondent(s)

2

J U D G M E N T

P.Sathasivam, CJI.

1) This writ petition, under Article 32 of the Constitution of India,
has been filed to issue specific directions to effectuate meaningful
implementation of the judgments rendered by this Court in
Union of India
vs. Association for Democratic Reforms and Another (2002) 5 SCC 294 and
People’s Union for Civil Liberties (PUCL) and Another vs. Union of India &
Anr. (2003) 4 SCC 399 and
also to direct the respondents herein to make it
compulsory for the Returning Officers to ensure that the affidavits filed
by the contestants are complete in all respects and to reject the
affidavits having blank particulars.
Background:
2) In order to maintain purity of elections and to bring transparency in
the process of election, this Court, in Association for Democratic Reforms
(supra), directed the Election Commission of India-Respondent No. 1 herein
to issue necessary orders, in exercise of its power under Article 324 of
the Constitution, to call for information on affidavit from each candidate
seeking election to the Parliament or a State Legislature as a necessary
part of his nomination paper furnishing therein information relating to his
conviction/acquittal/discharge in any criminal offence in the past, any
case pending against him of any offence punishable with imprisonment for 2
years or more, information regarding assets (movable, immovable, bank
balance etc.) of the candidate as well as of his/her spouse and that of
dependants, liability, if any, and the educational qualification of the
candidate.
3) Pursuant to the above order, the Election Commission, vide order
dated 28.06.2002, issued certain directions to the candidates to furnish
full and complete information in the form of an affidavit, duly sworn
before a Magistrate of the First Class, with regard to the matters
specified in Association for Democratic Reforms (supra). It was also
directed that non-furnishing of the affidavit by any candidate or
furnishing of any wrong or incomplete information or suppression of any
material information will result in the rejection of the nomination paper,
apart from inviting penal consequences under the Indian Penal Code, 1860.
It was further clarified that only such information shall be considered to
be wrong or incomplete or suppression of material information which is
found to be a defect of substantial character by the Returning Officer in
the summary inquiry conducted by him at the time of scrutiny of nomination
papers.
4) In People’s Union for Civil Liberties (PUCL) (supra),
though this
Court reaffirmed the aforementioned decision but also held that the
direction to reject the nomination papers for furnishing wrong information
or concealing material information and verification of assets and
liabilities by means of a summary inquiry at the time of scrutiny of the
nominations cannot be justified.
5) Pursuant to the above, the Election Commission, vide order dated
27.03.2003, held its earlier order dated 28.06.2002 non-enforceable with
regard to verification of assets and liabilities by means of summary
inquiry and rejection of nomination papers on the ground of furnishing
wrong information or suppression of material information.
6) Again, the Election Commission of India, vide letter dated 02.06.2004
directed the Chief Electoral Officers of all the States and Union
Territories that where any complaint regarding furnishing of false
information by any candidate is submitted by anyone, supported by some
documentary evidence, the Returning Officer concerned should initiate
action to prosecute the candidate concerned by filing formal complaint
before the appropriate authority.
Brief facts:
7) In the above backdrop, the brief facts of the case in hand are as
under:-
Resurgence India-the petitioner herein is a non-governmental
organization (NGO) registered under the Societies Registration Act, 1860
and is working for social awakening, social empowerment, human rights and
dignity. During Punjab Legislative Assembly Elections, 2007, the
petitioner-organization undertook a massive exercise under the banner
“Punjab Election Watch’ and affidavits pertaining to the candidates of six
major political parties in the State were analyzed in order to verify their
completeness. During such campaign, large scale irregularities were found
in most of the affidavits filed by the candidates.
8) On 09.02.2007, the petitioner-organization made a representation to
the Election Commission of India regarding large number of non-disclosures
in the affidavits filed by the contestants in the State of Punjab and poor
level of scrutiny by the Returning Officers. Vide letter dated 20.02.2007,
the Election Commission of India expressed its inability in rejecting the
nomination papers of the candidates solely due to furnishing of
false/incomplete information in the affidavits in view of the judgment in
People’s Union for Civil Liberties (PUCL) (supra).
9) Being aggrieved of the same, the petitioner-organization has
preferred this petition for the issuance of a writ of mandamus to make it
compulsory for the Returning Officers to ensure that the affidavits filed
by the contestants should be complete in all respects and to reject those
nomination papers which are accompanied by incomplete/blank affidavits.
The petitioner-organization also prayed for deterrent action against the
Returning Officers in case of acceptance of such incomplete affidavits in
order to remove deficiencies in the format of the prescribed affidavit.
10) Heard Mr. Prashant Bhushan, learned counsel for the petitioner-
organization, Ms. Meenakshi Arora, learned counsel for the Election
Commission of India-Respondent No. 1 herein and Mr. A. Mariarputham,
learned senior counsel for the Union of India.
Prayer/Relief Sought for:

Stand of the Petitioner-Organization:

11) The Petitioner-organization pleaded for issuance of appropriate
writ/direction including the writ of mandamus directing the respondents
herein to make it compulsory for the Returning Officers to ensure that the
affidavits filed by the candidates are complete in all respects and to
reject those nomination papers, which are accompanied by blank affidavits.

Stand of the Election Commission of India:

It is the stand of the Election Commission of India that the judgment in
People’s Union for Civil Liberties (PUCL) (supra) does not empower the
Returning Officers to reject the nomination papers solely due to furnishing
of false/incomplete/blank information in the affidavits signed by the
candidates. In succinct, they put forth the argument that they do not have
any latitude for rejecting the nomination papers in view of the above
mentioned judgment. However, learned counsel for the Election Commission
of India made an assertion that the Election Commission too is of the
opinion that incomplete nomination papers must be rejected. Hence, the
Election Commission of India sought for clarification in that regard.

Stand of the Union of India:

The Union of India also put forth the similar contention as raised by the
Election Commission. Interestingly, the Union of India also raised a query
as to how this Court will be justified in accepting the nomination paper
with false information but rejecting the nomination paper for filing
affidavit with particulars left blank and hence prayed that both the
abovesaid situations must be treated at par.

Discussion:

12) Both the petitioner-organisation and the respondent/UOI sought
divergent remedies against the same situation viz., wherein the affidavit
filed by the candidate stating the information given as correct but the
particulars of the same are left blank. The petitioner-organisation is
seeking for rejection of nomination paper in such a situation whereas the
Union of India is pleading for treating it at par with filing false
affidavit and to prosecute the candidate under Section 125A of the
Representation of the People Act, 1951 (in short ‘the RP Act’).

13) In order to appreciate the issue involved, it is desirable to refer
the relevant provisions of the RP Act. Sections 33A, 36 and 125A of the RP
Act read as under:

“33A. Right to information.—(1) A candidate shall, apart from
any information which he is required to furnish, under this Act
or the rules made thereunder, in his nomination paper delivered
under sub-section (1) of section 33, also furnish the
information as to whether –

(i) he is accused of any offence punishable with imprisonment
for two years or more in a pending case in which a charge has
been framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence [other than any
offence referred to in sub-section (1) or sub-section (2), or
covered in sub-section (3), of section 8] and sentenced to
imprisonment for one year or more.

(2) The candidate or his proposer, as the case may be, shall, at
the time of delivering to the returning officer the nomination
paper under sub-section (1) of section 33, also deliver to him
an affidavit sworn by the candidate in a prescribed form
veryfying the information specified in sub-section (1).

(3) The returning officer shall, as soon as may be after the
furnishing of information to him under sub-section (1), display
the aforesaid information by affixing a copy of the affidavit,
delivered under sub-section (2), at a conspicuous place at his
office for the information of the electors relating to a
constituency for which the nomination paper is delivered.

36. Scrutiny of nomination.—(1) On the date fixed for the
scrutiny of nominations under section 30, the candidates, their
election agents, one proposer of each candidate, and one other
person duly authorized in writing by each candidate, but no
other person, may attend at such time and place as the returning
officer may appoint; and the returning officer shall give them
all reasonable facilities for examining the nomination papers of
all candidates which have been delivered within the time and in
the manner laid down in section 33.

(2) The returning officer shall then examine the nomination
papers and shall decide all objections which may be made to any
nomination and may, either on such objection or on his own
motion, after such summary inquiry, if any, as he thinks
necessary, reject any nomination on any of the following
grounds:—

(a) that on the date fixed for the scrutiny of nominations the
candidate either is not qualified or is disqualified for being
chosen to fill the seat under any of the following provisions
that may be applicable, namely: Articles 84, 102, 173 and 191,

Part II of this Act, and sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of 1963); or

(b) that there has been a failure to comply with any of the
provisions of section 33 or section 34 ; or

(c) that the signature of the candidate or the proposer on the
nomination paper is not genuine.

(3) Nothing contained in clause (b) or clause (c) of sub-section
(2) shall be deemed to authorize the rejection of the nomination
of any candidate on the ground of any irregularity in respect of
a nomination paper, if the candidate has been duly nominated by
means of another nomination paper in respect of which no
irregularity has been committed.

(4) The returning officer shall not reject any nomination paper
on the ground of any defect which is not of a substantial
character.

(5) The returning officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of section 30 and
shall not allow any adjournment of the proceedings except when
such proceedings are interrupted or obstructed by riot or open
violence or by causes beyond his control:

Provided that in case an objection is raised by the returning
officer or is made by any other person the candidate concerned
may be allowed time to rebut it not later than the next day but
one following the date fixed for scrutiny, and the returning
officer shall record his decision on the date to which the
proceedings have been adjourned.

(6) The returning officer shall endorse on each nomination paper
his decision accepting or rejecting the same and, if the
nomination paper is rejected, shall record in writing a brief
statement, of his reasons for such rejection.

(7) For the purposes of this section, a certified copy of an
entry in the electoral roll for the time being in force of a
constituency shall be conclusive evidence of the fact that the
person referred to in that entry is an elector for that
constituency, unless it is proved that he is subject to a
disqualification mentioned in section 16 of the Representation
of the People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination papers have been
scrutinized and decisions accepting or rejecting the same have
been recorded, the returning officer shall prepare a list of
validly nominated candidates, that is to say, candidates whose
nominations have been found valid, and affix it to his notice
board.

125A. Penalty for filing false affidavit, etc.—A candidate who
himself or through his proposer, with intent to be elected in an
election,-

(i) fails to furnish information relating to sub-section (1) of
section 33A; or

(ii) gives false information which he knows or has reason to
believe to be false; or

(iii) conceals any information, in his nomination paper
delivered under sub-section (1) of section 33 or in his
affidavit which is required to be delivered under sub-section
(2) of section 33A, as the case may be, shall, notwithstanding
anything contained in any other law for the time being in force,
be punishable with imprisonment for a term which may extend to
six months, or with fine, or with both.”

14) In view of the above, the power to reject the nomination paper by the
Returning Officer on the instance of candidate filing the affidavit with
particulars left blank can be derived from the reasoning of a three-Judge
Bench of this Court in
Shaligram Shrivastava vs. Naresh Singh Patel (2003) 2 SCC 176.
In the aforesaid case, the nomination paper of a candidate got
rejected at the time of scrutiny under Section 36(2) of the RP Act on the
ground that he had not filled up the proforma prescribed by the Election
Commission wherein the candidate was required to state whether he had been
convicted or not for any offence mentioned in Section 8 of the RP Act. In
actual, the candidate therein had filed an affidavit stating that the
information given in the proforma was correct but the proforma itself was
left blank.
The candidate therein coincidentally raised somewhat similar
contention as pleaded by the Union of India in the present case. The
candidate pleaded that his nomination paper could not be rejected on the
ground that he had not filled up the proforma prescribed since no such
proforma was statutorily provided under the provisions of the Act or under
the rules framed there under. It was contended that the Commission could not
legislate to prescribe a proforma; at best it can only be an executive
instruction of the Election Commission whereas the petitioner had filled
the proforma prescribed under the Rules, which did not suffer from any
defect.

15) Although, the grounds of contention may not be exactly similar to the
case on hand but the reasoning rendered in that verdict will come in aid
for arriving at a decision in the given case. In order to arrive at a
conclusion in that case, this Court traversed through the objective behind
filing the proforma. The proforma mandated in that case was required to be
filed as to the necessary and relevant information with regard to the
candidate in the light of Section 8 of the RP Act. This Court further held
that at the time of scrutiny, the Returning Officer is entitled to satisfy
himself whether the candidate is qualified and not disqualified, hence, the
Returning Officer was authorized to seek such information to be furnished
at the time or before scrutiny. It was further held that if the candidate
fails to furnish such information and also absents himself at the time of
the scrutiny of the nomination papers, then he is obviously avoiding a
statutory inquiry being conducted by the Returning Officer under Section
36(2) of the RP Act relating to his being not qualified or disqualified in
the light of Section 8 of the RP Act. It is bound to result in defect of a
substantial character in the nomination. This Court further held as under:-

“17. In the case in hand the candidate had failed to furnish such
information as sought on the pro forma given to him and had also
failed to be present personally or through his representative at the
time of scrutiny. The statutory duty/power of Returning Officer for
holding proper scrutiny of nomination paper was rendered nugatory. No
scrutiny of the nomination paper could be made under Section 36(2) of
the Act in the light of Section 8 of the Act. It certainly rendered
the nomination paper suffering from defect of substantial character
and the Returning Officer was within his rights in rejecting the
same.”

16) It is clear that the Returning Officers derive the power to reject
the nomination papers on the ground that the contents to be filled in the
affidavits are essential to effectuate the intent of the provisions of the
RP Act and as a consequence, leaving the affidavit blank will in fact make
it impossible for the Returning Officer to verify whether the candidate is
qualified or disqualified which indeed will frustrate the object behind
filing the same. In concise, this Court in Shaligram (supra) evaluated the
purpose behind filing the proforma for advancing latitude to the Returning
Officers to reject the nomination papers.

17) In the light of the above reasoning, now let us assess the facts of
the given case. In Association for Democratic Reforms (supra), this Court
arrived at a decision that the members of a democratic society should be
sufficiently informed so that they may influence intelligently the
decisions which may affect themselves and it would include their decision
of casting votes in favour of a particular candidate. This Court further
held that if there was a disclosure by a candidate with regard to his
criminal antecedents, assets and liabilities and educational qualification,
then it would strengthen the voters in taking appropriate decision of
casting their votes. This Court further stated as under:-

“38. If right to telecast and right to view to sport games and
right to impart such information is considered to be part and
parcel of Article 19(1)(a), we fail to understand why the right of
a citizen/voter - a little man - to know about the antecedents of
his candidate cannot be held to be a fundamental right under
Article 19(1)(a). In our view, democracy cannot survive without
free and fair election, without free and fairly informed voters.
Votes cast by uninformed voters in favour of X or Y candidate would
be meaningless. As stated in the aforesaid passage, one-sided
information, disinformation, misinformation and non-information,
all equally create an uninformed citizenry, which makes democracy a
farce. Therefore, casting of vote by a misinformed and non-informed
voter or a voter having one-sided information only is bound to
affect the democracy seriously. Freedom of speech and expression
includes right to impart and receive information, which includes
freedom to hold opinions. Entertainment is implied in freedom of
'speech and expression' and there is no reason to hold that freedom
of speech and expression would not cover right to get material
information with regard to a candidate who is contesting election
for a post which is of utmost importance in the democracy.

46. …4. To maintain the purity of elections and in particular to
bring transparency in the process of election, the Commission can
ask the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would
include transparency of a candidate who seeks election or re-
election. In a democracy, the electoral process has a strategic
role. The little man of this country would have basic elementary
right to know full particulars of a candidate who is to represent
him in Parliament where laws to bind his liberty and property may
be enacted.

…7. Under our Constitution, Article 19(1)(a) provides for freedom
of speech and expression. Voters's speech or expression in case of
election would include casting of votes, that is to say, voter
speaks out or expresses by casting vote. For this purpose,
information about the candidate to be selected is a must. Voter's
(little man-citizen's) right to know antecedents including criminal
past of his candidate contesting election for MP or MLA is much
more fundamental and basic for survival of democracy. The little
man may think over before making his choice of electing law-
breakers as law-makers.”

18) Thus, this Court held that a voter has the elementary right to know
full particulars of a candidate who is to represent him in the Parliament
and such right to get information is universally recognized natural right
flowing from the concept of democracy and is an integral part of Article
19(1)(a) of the Constitution. It was further held that the voter's speech
or expression in case of election would include casting of votes, that is
to say, voter speaks out or expresses by casting vote. For this purpose,
information about the candidate to be selected is a must. Thus, in
unequivocal terms, it is recognized that the citizen’s right to know of the
candidate who represents him in the Parliament will constitute an integral
part of Article 19(1)(a) of the Constitution of India and any act, which is
derogative of the fundamental rights is at the very outset ultra vires.

19) With this background, Section 33A of the RP Act was enacted by Act 72
of 2002 with effect from 24.08.2002. Thus, the purpose of the Act 72 of
2002 was to effectuate the right contemplated in Association for Democratic
Reforms (supra). However, the legislators did not incorporate all the
suggestions as directed by this Court in the above case but for mandating
all the candidates to disclose the criminal antecedents under Section 33A
by filing an affidavit as prescribed along with the nomination paper filed
under Section 33(1) of the RP Act so that the citizens must be aware of the
criminal antecedents of the candidate before they can exercise their
freedom of choice by casting of votes as guaranteed under the Constitution
of India. As a result, at present, every candidate is obligated to file an
affidavit with relevant information with regard to their criminal
antecedents, assets and liabilities and educational qualifications.

20) Let us now test whether the filing of affidavit stating that the
information given in the affidavit is correct but leaving the contents
blank would fulfill the objective behind filing the same. The reply to this
question is a clear denial. The ultimate purpose of filing of affidavit
along with the nomination paper is to effectuate the fundamental right of
the citizen under Article 19(1)(a) of the Constitution of India. The
citizens are required to have the necessary information at the time of
filing of the nomination paper in order to make a choice of their voting.
When a candidate files an affidavit with blank particulars, it renders the
affidavit itself nugatory.

21) For that purpose, the Returning Officer can very well compel a
candidate to furnish information relevant on the date of scrutiny. We were
appraised that the Election Commission already has a standard draft format
for reminding the candidates to file an affidavit as stipulated. We are of
the opinion that along with the above, another clause may be inserted for
reminding the candidates to fill the blanks with the relevant information
thereby conveying the message that no affidavit with blank particulars will
be entertained. We reiterate that it is the duty of the Returning Officer
to check whatever the information required is fully furnished at the time
of filing of affidavit with the nomination paper since such information is
very vital for giving effect to the ‘right to know’ of the citizens. If a
candidate fails to fill the blanks even after the reminder by the Returning
Officer, the nomination paper is fit to be rejected. We do comprehend that
the power of Returning Officer to reject the nomination paper must be
exercised very sparingly but the bar should not be laid so high that the
justice itself is prejudiced.

22) We also clarify to the extent that in our coherent opinion the above
power of rejection by the Returning Officer is not barred by Para 73 of
People’s Union for Civil Liberties (PUCL) (supra) which reads as under:-

“73. While no exception can be taken to the insistence of affidavit
with regard to the matters specified in the judgment in Assn for
Democratic Reforms case, the direction to reject the nomination paper
for furnishing wrong information or concealing material information
and providing for a summary enquiry at the time of scrutiny of the
nominations, cannot be justified. In the case of assets and
liabilities, it would be very difficult for the Returning Officer to
consider the truth or otherwise of the details furnished with
reference to the 'documentary proof'. Very often, in such matters the
documentary proof may not be clinching and the candidate concerned may
be handicapped to rebut the allegation then and there. If sufficient
time is provided, he may be able to produce proof to contradict the
objector's version. It is true that the aforesaid directions issued by
the Election Commission are not under challenge but at the same time
prima facie it appears that the Election Commission is required to
revise its instructions in the light of directions issued in Assn for
Democratic Reforms case and as provided under the Representation of
the People Act and its third Amendment.”

23) The aforesaid paragraph, no doubt, stresses on the importance of
filing of affidavit, however, opines that the direction to reject the
nomination paper for furnishing wrong information or concealing material
information and providing for a summary inquiry at the time of scrutiny of
the nominations cannot be justified since in such matters the documentary
proof may not be clinching and the candidate concerned may be handicapped
to rebut the allegation then and there. This Court was of the opinion that
if sufficient time is provided, the candidate may be in a position to
produce proof to contradict the objector's version. The object behind
penning down the aforesaid reasoning is to accommodate genuine situation
where the candidate is trapped by false allegations and is unable to rebut
the allegation within a short time. Para 73 of the aforesaid judgment
nowhere contemplates a situation where it bars the Returning Officer to
reject the nomination paper on account of filing affidavit with particulars
left blank. Therefore, we hereby clarify that the above said paragraph will
not come in the way of the Returning Officer to reject the nomination paper
if the said affidavit is filed with blank columns. The candidate must take
the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or
‘Not known’ in the columns and not to leave the particulars blank, if he
desires that his nomination paper be accepted by the Returning Officer.

24) At this juncture, it is vital to refer to Section 125A of the RP Act.
As an outcome, the act of failure on the part of the candidate to furnish
relevant information, as mandated by Section 33A of the RP Act, will result
in prosecution of the candidate. Hence, filing of affidavit with blank
space will be directly hit by Section 125A(i) of the RP Act. However, as
the nomination paper itself is rejected by the Returning officer, we find
no reason why the candidate must again be penalized for the same act by
prosecuting him/her.

25) If we accept the contention raised by Union of India, viz., the
candidate who has filed an affidavit with false information as well as the
candidate who has filed an affidavit with particulars left blank should be
treated at par, it will result in breach of fundamental right guaranteed
under Article 19(1)(a) of the Constitution, viz., ‘right to know’, which is
inclusive of freedom of speech and expression as interpreted in Association
for Democratic Reforms (supra).

26) In succinct, if the Election Commission accepts the nomination papers
in spite of blank particulars in the affidavits, it will directly violate
the fundamental right of the citizen to know the criminal antecedents,
assets and liabilities and educational qualification of the candidate.
Therefore, accepting affidavit with blank particulars from the candidate
will rescind the verdict in Association for Democratic Reforms (supra).
Further, the subsequent act of prosecuting the candidate under Section
125A(i) will bear no significance as far as the breach of fundamental right
of the citizen is concerned. For the aforesaid reasons, we are unable to
accept the contention of the Union of India.

27) What emerges from the above discussion can be summarized in the form
of following directions:

(i) The voter has the elementary right to know full particulars of a
candidate who is to represent him in the Parliament/Assemblies and such
right to get information is universally recognized. Thus, it is held that
right to know about the candidate is a natural right flowing from the
concept of democracy and is an integral part of Article 19(1)(a) of the
Constitution.

(ii) The ultimate purpose of filing of affidavit along with the nomination
paper is to effectuate the fundamental right of the citizens under Article
19(1)(a) of the Constitution of India. The citizens are supposed to have
the necessary information at the time of filing of nomination paper and for
that purpose, the Returning Officer can very well compel a candidate to
furnish the relevant information.

(iii) Filing of affidavit with blank particulars will render the affidavit
nugatory.

(iv) It is the duty of the Returning Officer to check whether the
information required is fully furnished at the time of filing of affidavit
with the nomination paper since such information is very vital for giving
effect to the ‘right to know’ of the citizens. If a candidate fails to fill
the blanks even after the reminder by the Returning Officer, the nomination
paper is fit to be rejected. We do comprehend that the power of Returning
Officer to reject the nomination paper must be exercised very sparingly but
the bar should not be laid so high that the justice itself is prejudiced.

(v) We clarify to the extent that Para 73 of People’s Union for Civil
Liberties case (supra) will not come in the way of the Returning Officer to
reject the nomination paper when affidavit is filed with blank particulars.

(vi) The candidate must take the minimum effort to explicitly remark as
‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave
the particulars blank.

(vii) Filing of affidavit with blanks will be directly hit by Section
125A(i) of the RP Act However, as the nomination paper itself is rejected
by the Returning Officer, we find no reason why the candidate must be again
penalized for the same act by prosecuting him/her.

28) The Writ Petition is disposed of with the above directions.

……….…………………………CJI.

(P. SATHASIVAM)

………….…………………………J.

(RANJANA PRAKASH DESAI)

………….…………………………J.

(RANJAN GOGOI)

NEW DELHI;
SEPTEMBER 13, 2013.

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Thursday, September 19, 2013

Paid Great Homage to Dr. M. Padmanabhacharlu on 18-9-2013 at Darbar Hall Mourya Inn Kurnool

Saturday, September 14, 2013