An inglorious quota: NRIs and the islands of exclusion - The Daily Guardian
Connect with us

Legally Speaking

An inglorious quota: NRIs and the islands of exclusion

If National Law Universities are to be considered islands of excellence, NRI quota is like providing sailing ship to the privileged class, while all others are swimming in the ocean of merit.

Published

on

The very first National Law University (NLU) was established in the year 1987 under the leadership of Professor N.R. Madhava Menon, a visionary educationist and a renowned jurist. Prof. Menon not only introduced the country with a new concept of legal education but also changed the perspective towards it. After almost thirty-three years of the establishment of the first NLU, the country has now twenty-three functional NLUs.

The concept of NLUs has indeed brought revolution and radical changes in legal education but at the same time, these institutions have been called out for being a hub of elites. In the year 2018-19, Increasing Diversity by Increasing Access (IDIA) published its report on the diversity of legal education by taking the sample space of five leading NLUs. The report had some baffling and yet speculated findings, the largest proportion of students (33.20%) hailed from a household with an annual income of over Rs. 15 lakh and hardly 7.5% of the total students belonged to income below Rs. 1 lakh. This report was further quoted by Justice Dr D.Y. Chandrachud in an event, Justice Chandrachud highlighted the class disparity (based on the financial background of the student). This report further affirms the allegation on NLUs of being a hub of elites and being exclusive in the sense of class disparity. Reason for the class disparity in NLUs is not straight jacket rather a complex situation. However, the cause and effect formula takes us to the accessibility and seat allocation in these institutions. There are numerous reasons for this disparity, but what seems like an encouraging factor for the disparity is recognition of reserved seats in these institutions based on the high fee-paying capacity of the candidates.

NLUs like many other educational institutions, reserves seats for Foreign Nationals/ non-resident Indians (NRIs)/ NRI-sponsored candidates. The admission on these reserved seats is either available to NRIs or in many cases anyone falling in the proximity of relationship with NRIs, who can pay the higher fees. However, having adequate resources to pay higher fees is more important than actually belonging to the community of NRIs. The apex court in PA Inamdar v. State of Maharashtra (2005) discussed the validity of these quotas. It was noted by the court that the students admitted under this quota neither are NRIs nor have any proximity and even called is as a “misnomer”. All these critical observations have no underlying significance since the court in the same judgement validated the NRI quota. The Supreme Court didn’t delve into the intricacies of the Constitution to adjudicate whether or not these reservations are constitutionally valid and rather justified it on the ground that “the emigrated NRIs had a desire to bring their children back to their country, not just for education but also so that their children could get reunited with Indian cultural ethos.”. Even after the validation provided for NRI Quota, the court was still sceptical on the same and therefore laid guidelines and conditions for the regulation in matters of admission related to NRIs. The only regulatory guideline is the cap of 15% on the NRI quota. The conditions in furtherance of this guideline laid down – that these seats must be utilised by bona fide NRIs only and the merit must not be given a complete go-by.

Fifteen years later a judgement by the High Court of Orissa in Ishika Patnaik vs. National Law University Odhisha and ors. (2020) brought the requirement and validity of these seats in the contemporary debate. A writ petition was filed by a candidate after her application was not considered for admission under NRIs category. The court observed that the NRIs Quota are “affront to meritorious candidates”, “reservation for elite class” and “unconstitutional”. This observation came few days after the judgement of Supreme Court which was also on the same lines calling NRI quota as “not sacrosanct” in Nilay Gupta v. Chairman Neet PG Medical and Dental Admission/Counselling Board (2020). In the Judgement of Nilay Gupta, the question before the court was to decide whether or not NRIs quota are mandatory in nature in private medical colleges. However, the contention here is not to go into the factual details of Nilay Gupta’s case but to highlight the scepticism of the apex court. To delve into the constitutionality and irregularities related to these quotas it is paramount to understand the term NRIs and how it is applied in its true sense in the context of NLUs.

WHO ARE NRIS?

Advocate Chirayu Jain in a research report published in the year 2018, pointed out that there lies no uniformity in the definitions of NRIs. NLUs that reserves seats under this category have varied definitions and applicability. For instance, National Law Institute University, Bhopal (NLIU) has reserved 17 seats for NRI/NRI-sponsored candidates, whereas National Law School of India University (NLSIU), Bengaluru and National Academy of Legal Studies and Research (NALSAR), Hyderabad have five and twenty-four seats respectively reserved for Foreign Nationals. According to Jain, universities including both NLSIU and NALSAR along with other NLUs admits students subject to the possession of a foreign passport. However, neither the websites nor the admission notification of these universities provides any details of what falls within the category of “Foreign Nationals”. Many NLUs have chosen to tailor the category as per their satisfaction this could be understood by looking at the distinction of categorisation by NLIU Bhopal which accepts candidates sponsored either by a first degree or second degree NRIs and Tamil Nadu National Law School (TNNLS), Tiruchirappalli which further creates hierarchy: those with NRI parents are to be preferred over those with NRI guardians, while both to be preferred over NRI-sponsored. The categorisation by these NLUs is not only confound but provides leverage for irregularities. In the Elusive Island of Excellence (report of 2016) by Advocate Chirayu Jain and other students from NLSIU, which is an extensive study of NLSIU. It was found that out of 21 foreign nationals, 17 of them completed their schooling in India, however, they turned into a foreign nationals for the sake of an undergraduate course. The ambiguity and absence of any uniform definition have been potential threats to transparent admissions and further jeopardises the condition laid down in P A Inamdar, of providing seats to bona fide NRI candidates. The other condition which deals with the “merit” also falls under scrutiny for a logical reason that if there are any irregularities, how merit would be saved.

WAVERING MERITOCRACY

Recalling the vision of Prof. Menon again the idea behind establishing the concept of NLU was to bring the best out of the best. The pan India exam conducted in furtherance of this vision resulted in the induction of students who are serious towards the legal field. Even in P A Inamdar, out of all the conditions laid down, the court emphasised upon that the merit must not be given a complete go-by. However, the self-categorisation and non-uniformity of NRIs quota have put this condition under a complete violation. TNNLS, for instance, creates categorisation and provides preference to one kind of NRIs over the other, while NLSIU gives preference to South Asian Association for Regional Cooperation (SAARC), does this preferential treatment even under the same quota directs towards the death of meritocracy?

While a lot of NLUs like Maharashtra National Law University (MNLU), Mumbai, Hidayatullah National Law University (HNLU) considers only the ranking of CLAT even for this quota. There is no scope of debate that there vests a large gap between the ranks of general category and NRIs. The first list cut-off rank for this year in NLIU Bhopal in the general category was all India rank (AIR) 526 whereas for NRIs quota it was AIR 2543. Similarly, in HNLU the first list cut-off for general category was AIR 696 and for NRIs, it went down to AIR 4087. The statistic is for a handful of NLUs which consider CLAT AIR while giving admission to NRIs. While it is easy to analyse and compare the merit of in these institutes for NRIs/NRI-sponsored category, it becomes almost the discretion of institute such as NALSAR which rather provides direct admissions for foreign national category without CLAT.

The sharp decline in the AIR when moving from general category to NRI is alarming and indicative towards a decrease in meritocracy. While meritocracy is not the sole criteria for the determination of the ability of any individual but it is unreasonable to provide a special set of candidates with a ship to reach the island of excellence (NLUs) while all the others are swimming through the ocean. This decline merit is not only subject to CLAT examination but also during the course curriculum. The same study of 2016 further concluded that in NLSIU, foreign nationals are the worst performers academically. The study demonstrates that in the year 2015, the overall average cumulative Grade Point Average (CGPA) was recorded to be 4.70 out of 7.00. The general category students had a CGPA of 4.96, whereas foreign nationals were found to have an average CGPA of only 3.97, this remains even lower to the caste-based reserved candidates. For instances, Scheduled Caste (SC) students had a better CGPA of 4.06. However, Scheduled Tribe (ST) students had scored 3.9, which is lower than the foreign national students. If seen in the context, a larger proportion of ST students (19.4%) found themselves not fluent in English as compared to 4.8% of foreign national. While SC/ST students are called out for their reservation and merit very frequently NRIs do get away with it without any public intimidation.

A simple comparison between the meritocracies of caste-based reservation and NRI quota doesn’t come from the realm of rationality. One category has been provided with reservation as a form of compensation for a thousand years of exploitation and to provide them with adequate representation in the mainstream. Whereas the other category relies on the class differentia and the ability to pay a higher fee than the regular candidate, which also signifies the privileges and abundance of resources. Yet, there is only a meagre difference between the academic records of both.

In the judgment of Inamdar, the findings of Chief Justice R C Lahotri were also on similar lines, where he found “that admissions were being granted to less meritorious students just because they could afford to pay the higher fees sought”. The statistics only affirms the findings of the Chief Justice. While speaking for the NRI quota, the Supreme Court emphasized that the merit should not be given a complete go-by. It seems that the NLUs have let down the Supreme Court.

PRO-NRI ARGUMENTS

The concept of NLU lies on the foundation of autonomy and protection from any outer interference in the matters related to the internal functioning of the university. Legal departments under various State and Central universities have crippled down and the quality of legal education has faded. This is the result of multiple factors, but interference from outside makes it even more cumbersome for these universities to experiment with new courses and curriculum since the process is very long and tiresome. In NLUs, decision making is comparatively faster, which has resulted in better qualitative education. However, this autonomy comes with a price, while traditional Central and State universities are flourished with funds, NLUs are seen as a self-sustaining model. Many NLUs are provided with one-time fund assistant for setting up of university and infrastructure and few NLUs are partially funded by the respective State governments, even in the latter scenario funds are not enough to maintain top-notch education model. These universities function majorly on the revenue generated budget, where the fee paid by students are utilised for the payment of salaries to the teachers, administrative staff and ground staff.

Amidst dearth of funds and hassle to provide quality legal education, the fee differential between a regular student and an NRI student act as an allurement for the NLUs. The flow of fund in the form of higher fees from NRIs to financially secure the institute was also recognised by the court in Inamdar’s judgement. However, with this affirmation, the court also added that these funds collected from NRIs must be utilised for subsidising the education of students hailing from economically weaker sections of the society.

Jain, in his study (2018) provided statistics which proves how only a negligible percentage of the total fee collected from NRIs are used for subsiding education of students from the weaker background. The statistics provide that the highest utilisation of the NRIs fund to subsidise fee for students from the weaker background is done by MNLU, Mumbai, which is 7.55%. The subsidy percentage of NLSIU, NALSAR didn’t even cross 3%.

What the court didn’t consider that these are educational institutions and not barter houses, the deficit created by insufficient funding could not be equalised through charging a set of candidates’ higher fee and providing them seats. Rather, the funding from NRI quota could be prone to misuse and commercialisation of education. Speaking about the commercialisation of education, it’s important to bring in the philosophy of Ambedkar on education. Dr Ambedkar, in Bombay Legislative Council in the year 1927 spoke in length and breadth on how the colleges financed through the fee collected are not imparting education but are commercialising it. According to him education is not quid pro quo and must be “cheapened”, with cheapened Ambedkar meant that the funding must come from the State rather than dependence on the fees. Further, “Socialism” in the Preamble of Indian Constitution in its true essence duty bounds the State from ceasing any such commercialisation, at least in the public institutions.

THE WAY AHEAD

The structural loophole in the NLUs has deprived many meritorious and hardworking students of getting into the desired institutions, just because they couldn’t afford to pay higher fees. The seats which could have helped many such students to reach their goals, but these seats were served to already privileged and elites. The irregularities in the admission procedure rather suggest that anyone with deep pockets can get admission in these institutions by surpassing the merit. In recent times, these institutions are still far from the dream of Prof. Madhava Menon and are currently acting as an instrument of exclusion.

The regulations and conditions in the form of safety valve from arbitrary misuse laid down by the Supreme Court in the judgement of Inamdar, are violated by most of the NLUs. These institutions at the place of aligning to the conditions, work on whims and fancies. The arbitrariness in the selection process does lead to class disparity and failure of ideal objectives behind setting up of these institutions.

The recent judgment of the Supreme Court in Nilaya Gupta followed by the judgement of Ishika Patnaik by Orissa High Court suggests that now courts are critically scrutinising this quota. Nullity of the quota is expected soon, else exclusionary system will keep depriving candidates of their rightful seats. Till the time strict scrutiny of NRI quota is done on the Constitutional merits, NLUs would remain a paradoxical dream.

A judgement by the High Court of Orissa in Ishika Patnaik vs. National Law University Odisha and ors (2020) brought the requirement and validity of these seats in the contemporary debate. A writ petition was filed by a candidate after her application was not considered for admission under NRIs category. The court observed that the NRIs’ quota is an ‘affront to meritorious candidates’.

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

Published

on

The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

Continue Reading

Legally Speaking

DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

Published

on

plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

Continue Reading

Legally Speaking

ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

Published

on

The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

Continue Reading

Legally Speaking

SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

Published

on

The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

Continue Reading

Legally Speaking

IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC

Published

on

The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.

FACTS OF THE CASE:

The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.

The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.

MUMBAI NCLT PROCEEDINGS

An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.

the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.

NCLT DECISION:

An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.

It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.

NCLT PROCEEDINGS:

An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.

The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.

Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.

The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.

Continue Reading

Legally Speaking

ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS

Published

on

The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.

The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.

An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.

Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.

on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.

The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.

the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.

It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.

The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.

It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.

Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.

Continue Reading

Trending