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--------------- Print Magazine --------------
  May 2016
  April 2016


Admission to the medical courses (MBBS and BDS) has been consistently a subject of judicial scrutiny and review for more than three decades. As observed, one can hardly find any infirmities, inaccuracies or impracticalities in the prescribed scheme and notifications in regard to the process of selection and grant of admission. It is the arbitrary and colourable use of power and manipulation in implementation of the schedule as well as the apparently perverse handling of the process by the concerned persons or the authorities involved, in collusion with the students or otherwise, that have rendered the entire admission process faulty and questionable before the courts.

The rule of merit for preference of courses and colleges admits no exception. As held by the Apex Court, it is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur. Wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of the Supreme Court and violative of the Rules, regulations and conditions of the prospectus, causing prejudice to the rights of the students, the court shall award compensation to such students as well as direct initiation of disciplinary action against the erring officers/officials. Where the admissions given by the concerned authorities are found by the courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not by itself a ground to permit them to continue with the course.

Asha v. Pt. B.D. Sharma, University of Health Sciences , Civil App. No. 5055 of 2012; Decided on 10-7-2012 (SC) [Swatanter Kumar and Ranjan Gogoi, JJ.]

DIVORCE: Mental Cruelty by Wife

The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

In the instant case, the husband comes from a respectable family engaged in business. The two sons were staying with the father. The conduct of wife and circumstances made it graphically clear that the wife had really humiliated her husband and caused mental cruelty. She had publicized in the newspapers that he was a womaniser and a drunkard. She had made wild allegations about his character. She had made efforts to prosecute him in criminal litigations under sections 494 and 498A, IPC, which she had failed to prove. Cumulative effect of the evidence brought on record clearly established a sustained attitude of causing humiliation and calculated torture on the part of the wife to make the life of the husband miserable. The Supreme Court held that with this mental pain, agony and suffering, the husband could not be asked to put up with the conduct of the wife and to continue to live with her. Therefore, he was held entitled to a decree for divorce.

Vishwanath v . Sau Sarla Vishwanath , C.A. No. 4905 of 2012; Decided on 4-7-2012 (SC) [Deepak Verma and Deepak Misra, JJ.]

RAPE OF MINOR CHILD: Chemical Analyst Report

In the instant case, there were two contradictory reports of chemical analysis of the sample of vaginal swab and smear. First sample was taken on the day of the incident itself and it reported that the sample did not show the presence of spermatozoa. The second sample taken ten days later was to the contrary. The Supreme Court held that the second report of the analysis could not be ignored as no motive and interest could be attributed to the Doctor who had conducted the second round of medical examination. In the present case the prosecution had clearly proved and established the circumstances which necessitated the second medical examination of the victim and a second set of sample of vaginal swab and smear to be taken. The aforesaid exercise was carried out on the basis of the application filed by the mother of the victim before the court of the Judicial Magistrate as she had serious doubts with regard to the fairness of the doctors in the District Hospital who had carried out the first medical examination and had taken the samples of vaginal swab and smear on the date of the occurrence.

O.M. Baby (Dead) by LRs. v. State of Kerala , 2012 (6) SCALE 159 (SC); Decided on 3-7-2012 in Crl. A. No. 133 of 2007 [Swatanter Kumar and Ranjan Gogoi, JJ.]

SERVICE LAW: Compassionate Appointments

Appointment on compassionate ground cannot be claimed as a matter of right. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable his family to get over sudden financial crisis and not to confer a status on the family. Thus, an applicant cannot claim appointment in a particular class/ group of post. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or Article 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service.

Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

Union of India v. Shashank Goswami , 2012 (5) SCALE 740 (SC)


As held, undoubtedly, public money should be recovered and recovery should be made expeditiously. But it does not mean that the financial institutions which are concerned only with the recovery of their loans, may be permitted to behave like property dealers and be permitted further to dispose of the secured assets in any unreasonable or arbitrary manner in flagrant violation of statutory provisions. The recovery of the public dues must be made strictly in accordance with the procedure prescribed by law.

The authority is duty bound to decide as to whether sale of part of the property would meet the outstanding demand. Valuation is a question of fact and valuation of the property is required to be determined fairly and reasonably.

Ram Kishun v. State of U.P ., C.A. No. 6204 of 2009; Decided on 24-5-2012 (SC) [Dr. B.S. Chauhan and Dipak Misra, JJ.] [2012 (5) SCALE 673]

CRIMINAL TRIAL: Deaf and Dumb Witness

A deaf and dumb person is a competent witness. The object of enacting the provisions of section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed.

When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.

State of Rajasthan v. Darshan Singh , Crl. A. No. 870 of 2007; Decided on 21-5-2012 (SC) [Dr. B.S. Chauhan and Dipak Misra, JJ.]

ARBITRATION: Death of named Arbitrator

The question raised in a very recent case was as to whether on the death of a named arbitrator, the arbitration agreement survives or not.

Existence of an arbitration agreement was not in dispute, the question was about its enforceability on the death of the named arbitrators. The Apex Court has held the arbitration clause would have life so long as any question or dispute or difference between the parties exists unless the language of the clause clearly expresses an intention to the contrary. The question may also arise in a given case that the named arbitrators may refuse to arbitrate disputes, in such a situation it is possible for the parties to appoint a substitute arbitrator unless the clause provides to the contrary. Objection can be raised by the parties only if there is a clear prohibition or debarment in resolving the question or dispute or difference between the parties in case of death of the named arbitrator or their non-availability, by a substitute arbitrator. In the absence of such debarment or prohibition of appointment of a substitute arbitrator, the court's duty is to give effect to the policy of law that is to promote efficacy of arbitration.

ACC Ltd . v. Global Cements Ltd., SLP (C) No. 17689 of 2012; Decided on 11-6-2012 (SC) [K.S. Radhakrishnan and Jagdish Singh Khehar, JJ.]

LL.M. (Medalist)

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