3.

Petition Styled As One Under Article 226 Would Not Bar High Court To Exercise Its Jurisdiction Which
Otherwise It Possesses: Supreme Court

[Case: Kiran Devi v. Bihar State Sunni Wakf Board; Citation: LL 2021 SC 195]

A bench comprising Justices Ashok Bhushan, S. Abdul Nazeer and Hemant Gupta observed that a petition
styled as one under Article 226 would not bar the High Court to exercise its jurisdiction which otherwise it
possesses under a Statute and/or under Article 227 of the Constitution.

In this case, the appellant's contention was that the order of the Wakf Tribunal could not be challenged by
way of writ petition before the High Court under Article 226 of the Constitution as only a revision in terms
of proviso to sub-section (9) of Section 83 of the Wakf Act could be preferred.

The bench noted that sub-section (9) of Section 83 of the Act confers power on the High Court to call for
and examine the records relating to any dispute, question or other matter which has been determined by
the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such
determination.

4. Hindu Undivided Family - No Presumption That Business Run By Karta In Tenented Premise Is Joint
Family Asset: Supreme Court

[Case: Kiran Devi v. Bihar State Sunni Wakf Board; Citation: LL 2021 SC 195]

Just because a business was run by a karta of a Hindu Undivided Family in a tenented premise, there is no
presumption that it is a joint Hindu family business, held a bench comprising of Justices Ashok Bhushan, S
Abdul Nazeer and Hemant Gupta. It observed that even if a male member had taken premises on rent, he
is tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any
evidence.

Referring to a precedent, the Supreme Court held that there is no presumption under Hindu Law that
business standing in the name of any member of the joint family is a joint business even if that member is
the manager of the joint family, unless it could be shown that the business in the hands of the coparcener
grew up with the assistance of the joint family property or joint familyfunds or that the earnings of the
business were blended with the joint family estate.

22. Right To Professional Education, Though Not Fundamental Right, Is Not Govt. Largesse; State Has
Affirmative Obligation To Facilitate Access At All Levels: SC

[Case: Farzana Batool v. Union of India & Ors.; Citation: LL 2021 SC 213]

A bench of Justices DY Chandrachud and MR Shah observed that the State has an affirmative obligation
to facilitate access to education, at all levels. "While the right to pursue higher (professional) education has
not been spelt out as a fundamental right in Part III of the Constitution, it bears emphasis that access to
professional education is not a governmental largesse. Instead, the State has an affirmative obligation to
facilitate access to education, at all levels", it observed.
The Court was considering writ petitions by two students, namely, Farzana Batool and Mohammad Mehdi
Waziri for directions to facilitate them to be admitted respectively at the Lady Hardinge Medical College,
Delhi and the Maulana Azad Medical College, Delhi in terms of the policy and guidelines issued by the Govt.
of India, Ministry of Health & Family Welfare through its Office Memorandum dated 9th April 2020 on
allocation of Ladakh Central Pool Seats in MBBS/BDS courses for 2020-21.

34. 'Ad-Hoc Judges Not An Alternative To Regular Appointments': Supreme Court Passes Guidelines On
Appointment Of Ad-Hoc Judges In HCs Under Article 224A

[Case: Lok Prahari v. Union of India & Ors.; Citation: LL 2021 SC 225]

A bench comprising of then CJI SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant passed a slew of
guidelines regarding the appointment of ad-hoc judges in High Courts under Article 224A of the
Constitution, to tackle the problem of mounting case arrears in High Courts.

While agreeing that the discretion of the High Court Chief Justice cannot be curtailed, the bench said that
certain general guidelines are needed so that the power under Article 224A is exercised in a transparent
manner. It laid down 5 trigger points which can activate the process under Article 224A:

(i) If the vacancies are more than 20% of the sanctioned strength; (ii) The cases in a particular category are
pending for over five years; (iii) More than 10% of the backlog of pending cases are over five years old; (iv)
The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject
matter or generally in the Court; (v) Even if there are not many old cases pending, but depending on the
jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than
the rate of filing over a period of a year or more.

15. OBC Reservation Cannot Exceed 50%: Supreme Court Reads Down Section 12(2)(c) Maharashtra Zilla
Parishads and Panchayat Samitis Act

[Case: Vikas Kishanrao Gawali v. State Of Maharashtra; Citation: LL 2021 SC 132]

The Supreme Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis
Act, 1961 which provides reservation of 27 per cent of seats in the Zilla Parishads and Panchayat Samitis.

"Reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not
exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together," the bench
comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed.

The court said that the rigid interpretation of the provision would be violative of the dictum laid down by the
Constitution bench in K. Krishna Murthy (Dr.) & Ors. v. Union of India, (2010) 7 SCC 202 that the State
legislations providing for reservation of seats in respect of OBCs, it must ensure that in no case the
aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50% of the seats
in the concerned local bodies.

20. Reservation Category Candidates Who Make It On Their Own Merit Have To Be Adjusted Against
General Category : SC Reiterates
[Case: State of Tamil Nadu & Ors. v. K Shobhana Etc; Citation: LL 2021 SC 138]

A three judge bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh
Roy reiterated that reservation category candidates, who score more than the cut-off marks for the general
category candidates, have to be adjusted against general category based on their meirt and not reserved
category.

"The principle that such of the reservation category candidates who make it on their own merit have to be
adjusted against the general category candidates has not been in doubt", the Court observed.

48. Selections To Public Employment Should Be On The Basis Of Merit: Supreme Court

[Case: Anmol Kumar Tiwari v. State of Jharkhand; Citation: LL 2021 SC 102]

A bench comprising Justices L. Nageswara Rao and Indira Banerjee observed that the selections to public
employment should be on the basis of merit. "Appointment of persons with lesser merit ignoring those who
have secured more marks would be in violation of the Articles 14 and 16 of the Constitution of India," the Court
observed while agreeing with the High Court.

In this case, the appointees to the posts of Police Sub-Inspectors, Attendants (Sergeant) and Company
Commanders by the Home Department of the Government of Jharkhand were terminated on the ground
that the select list was prepared wrongly by ignoring merit of candidates and by giving undue importance
to the preferences given by them. Allowing the writ petition filed by these appointees who were terminated,
the Jharkhand High Court observed that they cannot be held responsible for the irregularities committed by
the authorities in the matter of their selection and there is no allegation of fraud or misrepresentation on
their part. The High Court dismissed these applications.

Impart Gender Sensitization Training To Judges; Include Such Courses In LLB & AIBE Syllabus: Supreme
Court

[Case: Aparna Bhat v. State of Madhya Pradesh; Citation: LL 2021 SC 168]

A bench comprising Justices AM Khanwilkar and S. Ravindra Bhat suggested that gender sensitization
training should be imparted to Judges and public prosecutors. In doing so, the bench also observed that
each High Court should formulate a module on judicial sensitivity to sexual offences, to be tested in the
Judicial Services Examination. It also directed the Bar Council of India to take steps to include such courses
as part of LLB and AIBE syllabus.

"The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be
made part of the training of young judges, as well as form part of judges' continuing education with respect to
gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that
can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary
consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably
within three months," the bench said.
20. Reservation Category Candidates Who Make It On Their Own Merit Have To Be Adjusted Against
General Category : SC Reiterates

[Case: State of Tamil Nadu & Ors. v. K Shobhana Etc; Citation: LL 2021 SC 138]

A three judge bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh
Roy reiterated that reservation category candidates, who score more than the cut-off marks for the general
category candidates, have to be adjusted against general category based on their meirt and not reserved
category.

"The principle that such of the reservation category candidates who make it on their own merit have to be
adjusted against the general category candidates has not been in doubt", the Court observed.