T H

10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

MOOT COURT & INTERNSHIP PAPER (LW- 5086)

SCHOOL OF LAW, KIIT DEEMED TO BE UNIVERSITY

IN THE HON’BLE HIGH COURT OF DORNE

WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION OF UNION OF WESTEROS

EMPLOYMENT RIGHTS & JUSTICE FORUM

… PETITIONER

V.

STATE OF DORNE

… RESPONDENT

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE

HON’BLE HIGH COURT OF DORNE

~ MEMORIAL FOR THE RESPONDENT ~

1
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

TABLE OF CONTENTS

LIST OF ABBREVIATIONS........................................................................................................... 3

INDEX OF AUTHORITIES ........................................................................................................... 4

STATEMENTS OF JURISDICTION ............................................................................................... 5

STATEMENT OF FACTS .............................................................................................................. 6

STATEMENT OF ISSUES RAISED ................................................................................................ 7

SUMMARY OF ARGUMENTS ...................................................................................................... 8

ARGUMENTS ADVANCED ........................................................................................................... 9

PRAYER .................................................................................................................................... 16

2
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

LIST OF A B B R E V I AT I O N S

SL. NO. ABBREVIATION EXPANSIONS

1. & AND

2. ¶ PARAGRAPH

3. AIR ALL INDIA REPORTER

4. ART. ARTICLE

5. DAS DORNE ADMINISTRATIVE SERVICE

6. DSPSC DORNE STATE PUBLIC SERVICE COMMISSION

7. ED. EDITION

8. ETC ET-CETERA

9. GOVT. GOVERNMENT

10. HC HIGH COURT

11. HON’BLE HONOURABLE

12. LTD. LIMITED

13. MAD MADRAS

14. PG. PAGE

15. PVT. PRIVATE

16. § SECTION

17. SC SUPREME COURT

18. SCC SUPREME COURT CASES

19. SCR SUPREME COURT RECORDS

20. V. VERSUS

21. VOL. VOLUME

3
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

INDEX OF AUTHORITIES

S L.
SUPREME COURT CASES CITATION PG.
NO.

1.

2.

S L.
HIGH COURT CASES CITATION PG.
NO.

1.

2.

S L.
CONSTITUTIONAL TEXT PG.
NO.

1. The Constitution Of India, 1950 Passim

S L. WEB RESOURCES
NO.

1. www.manupatrafast.com (MANUPATRA)

2. www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)

3. www.jstor.org (JSTOR)

4. www.scconline.com (SCC ONLINE)

5. www.westlaw.india.com (WEST LAW INDIA)

4
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

S TAT E M E N T S O F J U R I S D I C T I O N

The jurisdiction of the Hon’ble SC has been invoked under Art. 32 of the Constitution of Dorne.
Art. 226 of read as:
“226. Power of High Courts to issue certain writs-
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation
to the territories within which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority or the residence of
such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause (1),
without -
(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two weeks from the date on
which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the aid next day, stand vacated

5
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause (2) of Article 32.”

S TAT E M E N T OF FACTS

BACKGROUND

¶ 1. Dorne, is a state in the Union of Westeros which is educationally and economically

forward. The State established the Dorne State Public Service Commission, which comprises
of a chairman, senior IAS officer who are highly qualified and experienced in matters of
administration in different capacities. In the year 2012, where Dorne’s People’ Party were
ruling, the government informed the DPSC that there were 500 vacancies available in the
DSPSC cadre and directed it to recommend the names of candidates to be appointed in the
Cadre. DSPSC advertised for filling up of these 500 vacancies with essential qualification as
graduates below the age of 35.

THE CAUSE OF PROBLEM

¶ 2. Petyr Baelish, who hails from Vale, obtained a scholarship and secured admission in a
reputed law school of the state. He was one of the candidates in the written examination and
was declared successful in the written and main examinations. However, at the personal
interview he was awarded with one of the lowest scores, so he wasn’t included in the list
recommended for appointment. The State Govt. offered appointments to 500 different
candidates for a probation period of two years. In February 2013. Petyr came out in public that
he was contacted by a member of the DSPSC with a demand to pay 40 lakhs in order to find
his name in a list of candidates. Since he was raised with high moral values he declined to make
such a payment. Several newspapers started highlighting the extent of red-tapism in the PSPSC.
The State of Dorne went into polls due to pubic opinion and Dorne Bachao Party came into
power. The new Chief Minister Ned Stark terminated the employment of all 500 employees
after the findings of the Lokayukta.

MATTER OF DISPUTE RESOLUTION

¶ 3. The terminated officials formed an association called Employment Rights and Justice
Forum (ERJF) demanding their reinstatement. The State was rocked by hunger strikes, morchas
and wide spread discussions. The State Govt. was firm in its decision and directed the DPSC

6
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

to recommend names of candidates for filling up of 500 vacancies in the DAS cadre afresh.
Aggrieved by the notifications of the State Govt. ERJF filed a writ petition before the High
Court of Dorne in 2014.

S TAT E M E N T O F I S S U E S R A I S E D

I.

WHETHER THE PETITION IS MAINTAINABLE BEFORE HON’BLE HIGH COURT OF DORNE?

II.

WHETHER THE STATE GOVERNMENT VIOLATED ARTICLE 14 OF THE CONSTITUTION?

III.

WHETHER THE APPOINTMENT OF DORNE ADMINISTRATIVE SERVICE OFFICERS IS BEYOND

THE SCOPE OF LAW?

7
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

SUMMARY OF ARGUMENTS

I. THE PETITION IS MAINTAINABLE BEFORE HON’BLE HIGH COURT OF DORNE.

¶ 1. It is humbly submitted that the writ of Mandamus is not maintainable before this Hon’ble
Court of Dorne, since it is not the proper forum for adjudication of this dispute. The alternative
and relevant forum provided under the law for adjudication of such disputes is the Central
Administrative Tribunal (CAT).

II. THE STATE GOVERNMENT DID NOT VIOLATE ARTICLE 14 OF THE CONSTITUTION.

¶ 1. The counsel for the respondent would humbly like to submit that the respondent has
decided to relax the age of the terminated officers by two years in promote to promote equality
of opportunity under Articles 14 and 16 of the Constitution. Therefore, the State has not
violated Articles 14 of the Constitution of Westeros.

III. THE APPOINTMENT OF DORNE ADMINISTRATIVE SERVICE OFFICERS IS BEYOND

THE SCOPE OF LAW.

¶ 1. The revelations of Mr Baelish and the investigations carried out by the Lokayukta clearly
exposed the irregularities in the appointment of the DAS cadre officials. When the irregularities
caused in the appointment are so widespread that it is difficult to determine who were benefited
or who were deprived due to such irregularities, it is difficult to issue show cause notice to each
and every individual and the only way out is the cancellation of such selection. Hence, the
appointment of such officers was beyond the scope of law.

8
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

A R G U M E N T S A D VA N C E D

I. THE PETITION IS MAINTAINABLE BEFORE HON’BLE HIGH COURT OF DORNE.

¶ 1. It is submitted before this Hon’ble Court that when an effective alternative remedy is
available, a writ petition cannot be maintained. Further, the writ is not maintainable on account
of non-contravention of any fundamental right.

¶ 2. A writ is an extraordinary relief, granted only upon the exhaustion of an existing alternative
remedy in a statute. Further, the writ remedy cannot be used as an alternative remedy or as
means to adjudge any factual inconsistencies as done in appellate courts. In the case of Madhya
Pradesh Industries Ltd. v. Income Tax Officer1 the Supreme Court has held that, when there
existed an adequate alternative remedy, then the writ petition would be dismissed by the court
in limine. The petitioners, in the case at hand, did not exercise the proper course of action
provided by the alternative remedies before filing the writ petition.

¶ 3. That it is submitted before this Hon’ble Court that the Hon’ble Supreme Court has drawn
certain exceptions to the Rule of alternative remedy, i.e., where the statutory authority has not
acted in accordance with the provisions of the enactment in question, or in defiance of the
fundamental principles of judicial procedure, or has resorted to invoking the provisions which
are repealed, or when an order has been passed in total violation of the principles of natural
justice (Commissioner of Income Tax and Ors. v. Chhabil Dass Agarwal2). That in the present
petition, the Petitioner has failed to show that Municipal authority has not acted in accordance
with the provisions or an order has been passed in total violation of the principles of natural
justice.

¶ 4. It is also pertinent to mention herein that the Petitioner could have approached the Central
Administrative Tribunal before approaching the High Court. It is submitted that steps taken or
documents asked by Respondent authority, is not in contravention of any fundamental right
and therefore it is submitted that the writ petition to this regard cannot be maintainable. In the

1
1965 57 ITR 637 SC.
2
2014 (1) SCC 603.

9
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

case of L Chandra Kumar v. UOI3, however the seven-judge Bench of Supreme Court upheld
that the constitutional jurisdiction conferred on the on High Courts under Art 226 and 227 of
the Constitution was a inevitable part of basic structure and essential attribute which could not
be curtailed and truncated. The legal position is that the CAT exercises original jurisdiction
under the Act. A party aggrieved with by a decision of such tribunal can approach the High
Court under Articles 226 and 227.

¶ 5. It is humbly submitted by the Respondent that the writ filed by the Petitioner is not
maintainable due to the existence of an adequate alternative remedy and there is no violation
of any fundamental right. The present writ petition is liable to be dismissed for want of
jurisdiction

II. THE STATE GOVERNMENT DID NOT VIOLATE ARTICLE 14 OF THE CONSTITUTION.

It is a humble submission before the Hon’ble HC that in Union of India v. P.K. Roy and Ors.4,
the Supreme Court has reiterated time and again that the doctrine of natural justice cannot be
imprisoned within the strait-jacket of rigid formula and its application would depend upon the
scheme and policy of the statute and relevant circumstances involved in a particular case.
Further in S.K. Kapoor v. Jag Mohan5, the Supreme Court has observed that where on admitted
or undisputed fact, only on conclusion is possible and under the law only one penalty is
permissible, the Court may not issue the writ to compel the observance of the principles of
natural justice as it would amount to issuing a futile writ. The Court can review only to correct
the error of law or fundamental procedural requirements which lead to manifest injustice or
Court can interfere with the impugned order if the same has been passed in flagrant violation
of the principles of natural justice.6

As observed by the Supreme Court in Suresh Koshi George v. University of Kerala7, the rules
of natural justice are not embodied rules. What particular rule of natural justice should apply
to a given case must depend to a great extent on the tacts and circumstances of that case, the

3
1997 (2) SCR 1186.
4
AIR 1968 SC 850. See also Channabasappa Basappa Happali v. State of Mysore, AIR 1972 SC 32 and Kumaon
Mandal Vikas Nigam Ltd. v. Girja Shankar Pandey and Ors., (2001) 1 SCC 182
5
AIR 1981 SC 136.
6
Rae Bareli Kshetriya Gramin Bank v. Bhola Nath and Ors. AIR 1997 SC 1908.
7
Civil Appeal No. 990 of 1968, dated 15.7.1968.

10
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

framework of the law under which the inquiry is held and the constitution of the tribunal or
body of persons appointed for that purpose. The aim of the rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of justice whenever a complaint is made
before a court that some principle of natural justice had been contravened the court has to
decide whether the observance of that rule was necessary for a just decision in the facts of that
case.8

In Union of India v. Tulsiram Patel9 the Court was of the opinion that not only can the principles
of natural justice can be modified but in exceptional cases they can even be excluded.

The requirements of natural justice vary with the varying Constitution of the different quasi
judicial authorities and the statutory provisions under which they function.

8
A.K. Kraipak v. Union of India AIR 1970 SC 150.
9
AIR 1985 SC 1416.

11
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

I I I . THE APPOINTMENT OF DORNE ADMINISTRATIVE SERVICE OFFICERS IS BEYOND

THE SCOPE OF LAW.

It is humbly point out that from the facts with the newspaper reports and the Lokayukta’s
findings it is clear that prima facie there were clear irregularities and corruption involved in
the appointment of the 500 DAS Cadre officials

On arguing forward with the third issue from the defendant’s side the pleader most respectfully
wants to begin that after receiving complaint under section 2(e) of the Lokpal and Lokayukta
Act of 201310 the Lokayukta carried out thorough investigations under the head of the Enquiry
with vide section 11 of the Lokayukta Act headed by the Director of Inquiry for the purpose
of conducting preliminary inquiry into any alleged offence . The Lokayukta can inquire into
the allegations of misconduct against the public servant while acting in the official capacity
and not otherwise. This very well falls within the jurisdiction of Lokpal and lokayukta Acts’s
section 14.

On further moving ahead with this point of the argument the counsel would like to point out
the difference of time in between the date of filing of the findings to the State Government in
the was in month of April 2013, in accordance with the Dorne Lokayukta Act of 1993 and the
date of termination of the services of all the 500 officers in the DAS Cadre with effect from 1st
August 2014 as per the Notification issued by the State Government. The gap in between is of
almost 15 months. The findings were brought out before the public when State of Dorne went
to polls and due to public opinion in print and electronic media weighing heavily against the
PPP in view of large scale .corruption. This clearly points it out that the terminated 500 officials
of DAS Cadre were aware of the findings of the Lokayukta. And so ample time was provided
to them to raise objection against the findings and prove themselves innocent.

So, now it can be clearly concluded from the above facts that 500 terminated officials of DAS
Cadre were given sufficient time to raise objection and prove themselves innocent within the
one-month notice period, he we focus on above facts apart from notice period the whole issue

10
Section 2( e) of The Lokpal and Lokayukta Act,2013: "complaint" means a complaint, made in such form as
may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of
Corruption Act, 1988.

12
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

started from early February of 2013 when Mr Baelish, came in public, they also had one year
time in between but nothing was done then or in notice period of 1 month.

The SC in Maneka Gandhi11, has laid down a triple test for any law to be considered to be in
accordance with the ‘Procedure established by law’: (1) The law must prescribe a procedure
(2) the procedure must satisfy the requirements of Arts. 14 and 19 (3) and, it should be just,
fair and reasonable.

It is submitted that Article 14 as including the principles of reasonableness only requires the
government to act on reasonable grounds.12 The court function is to check whether the decision
taken is fair and free from the taint of unreasonableness and has substantially complied with
the norm of procedure.13 The impugned circular is no way takes away FRs or vitiates any
procedure established by law. Article 14 ensures fairness and guarantees against arbitrariness.It
provides every action of the Government must be informed by reasons14 and guided by public
interest.

It is contented before the Hon’ble Court that the termination was done absolutely as per
procedure established by law with the principles of natural justice basing on the following:

i. After receiving the complaint, proper investigation was carried out by the Lokayukta
and it submitted its findings to the State Government in the month of April 2013 as per
the Dorne Lokayukta Act and the Prevention of Corruption Act, 1988 pointing that the
appointment was corrupted.

ii. Sufficient time was provided to the 500 DAS Cadre officials to raise objection and
prove themselves innocent before the new state government decided to terminate them
in July 2014.

iii. Even a notice of one month was issued before the termination and no objection was
raised by the petitioners during that period also.

iv. And after following the due process of law with principles of natural justice the
termination was done.

11
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
12
Durga Das Basu's Commentary on the Constitution of India, 1360 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
13
Fertilizer Corpn Kamgar Union v. Union of India, (1981) 1 SCC 568, 584.
14
D.D Basu Commentary on the Constitution of India, 3156 (8th ed., Vol. 3, 2014).

13
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

It is submitted that principles of natural justice have not been infringed by State Government
while terminating the DAS employee. It is further submitted that there is no specific definition
of principles of natural justice. Thus, application of principles of natural justice depends and
varies upon the facts and circumstances of each case. “It is not only difficult but also not
advisable to spell out any straightjacket formula which can be applied to all cases universally
without variation.”15 ‘Oral or personal hearing is not regarded as inevitable or indispensable
ingredient of natural justice in all cases. Natural justice does not necessarily predicate a
personal hearing unless the context requires otherwise’.16 Whether an opportunity should be
by written representation or personal hearing depends upon the facts of each case.

It has been held that ‘it would not be correct to say that for any infraction or violation of a fact
of natural justice or a rule incorporating such fact the order passed altogether is void and has
to be set aside. A substantive provision is normally to be complied with and the theory of
substantial compliances or the test of prejudices is not applicable to such cases’. 17 It is
submitted that in the present case principles of natural justice have been followed due to the
following reason:

The Hon’ble Supreme Court held that merely because the party was not given oral hearing, an
order cannot be set aside. ‘Not being given an opportunity of oral hearing cannot always be
equated to situation “where no opportunity” is given to a party to submit his explanation at all,
before an order is passed causing civil consequences, especially when there is no request for
personal hearing. The tribunal is not expected to suo moto request to have oral submission.’18

In the present case there was no requirement to grant hearing as the discussions between the
state government and Drone Administrative service were taken into consideration before
passing of termination order, thus the matter was decided on merits. Further, it has clearly
enumerated in the facts of the case that the petitioner never requested for an oral hearing. The
employees of the Drone Administrative Service were provided with proper notice before the
issuance of the termination and there were no request from there side regarding the hearing.
‘What, however the courts insists upon is that the person affected should have an opportunity
of adequately meeting the case against him and presenting his case, and this may be achieved

15
CCI v. SAIL (2010) 10 SCC 744, 777.
16
Gouranga Chakrabarthy v. Tripura (1989) 3 SCC 1321
17
D.D. Basu Commentary on Const. of India, Justice S.S. Subramani, Vol. 2, Lexis Nexis, 9 th ed. , 2014
18
Nirma Industries. V. SEBI, (2013) 8 SCC 20

14
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

through written memorandum and explanation and not necessarily through an oral hearing. If
this minimum does not take place, then principles of natural justice are violated.’19

In the present case the state government had given reasons after taking into consideration all
the circumstances, thus it cannot be contended that there was violation of principles of natural
justice. ‘If after taking into account all relevant circumstances, a bona fide action is taken the
same cannot be set aside simply on the ground that opportunity of oral hearing was not given.’20

‘To sustain a complaint of non-compliance of principles of natural justice, one must establish
that one has been prejudiced thereby for non-compliance with principles of natural justice’.21
Therefore, it is necessary that non observance of principles of natural justice has prejudicially
affected the petitioner. In UOI v. Alok Kumar22, Supreme Court stated “earlier in some cases,
Supreme Court has taken the view that breach of natural justice was itself prejudice and no
other de facto prejudice needs to be proved. Where rules are merely directory, element of de
facto prejudice needs to be pleaded and shown. With development of law, these rules are
somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature
where there is violation of non-mandatory rules or violation of natural justice as is understood
in common parlance”. In the present case no prejudice has occurred to the petitioner as state
government has taken into consideration the discussions of Drone Administrative Services
employee and also provided them one month notice before termination of their employment.

If importing the right to be heard has the “effect of paralyzing the administrative process” or
the need for “promptitude or the urgency of the situation so demands, natural justice could be
avoided.”23 Court has to mindful to realities, the appointing officers of the Drone
Administrative Services were indulged in corrupt practice and there was prima facie visible
from the fact of the case that there were irregularities in the appointment process. Further, the
after the matter has been properly investigated under the Lokayukta Act and the findings were
against the petitioners. Thus allowing oral hearing may hamper the administrative process of
state government.

19
Ondal Coal Co. v. Sonepur Coalfields, AIR 1970 Cal. 391
20
UOI v. Amrit Singh, AIR 1991 SC 564
21
Board of Directors, Himachal Pradesh Transport Corp. v. K.C. Rahi, (2008) 11 SCC 502, 504 (para 7)
22
(2010) 5 SCC 349
23
Umarani v. Registrar Co-op Societies (2004) 7 SCC 112

15
MEMORIAL FOR THE RESPONDENT
 T H
10 SEMESTER - MOOT COURT & INTERNSHIP PAPER (LW- 5086)

It is thus clear that the object and purpose of the principles of natural justice have to be
considered and not mere following of principles of natural justice. In the present case though
oral hearing has not occurred all the principles of natural justice objectives have been achieved.
Therefore, it cannot be pleaded that principles of natural justice have not been adhered to.

P R AY E R

In the lights of the facts stated, issues raised, arguments advanced and authorities cited, the
Petitioner most humbly and respectfully prays and requests to the Hon’ble Court to:

1. That State government did not violate Article 14 of the Constitution and and the same
must be held valid.
2. That the appointment of officer to the administrative post must be held valid and
proper to serve justice.
3. Pass any order(s) that the Hon’ble Court may deem fit in the interest of equity, justice
and good conscience.

And for this act of kindness the counsel for the Petitioner shall duty bound forever pray

Sd/-

Counsel for the Respondent

16
MEMORIAL FOR THE RESPONDENT