In the judgment of the case – Sunil Rathee & others v. The State of Haryana & Others, delivered on July 23, 2020, the Supreme Court has explained two conditions, based on which the Apex-Court can withdraw a case from a High Court to itself, exercising the power to do so, vested in it under the Article 139A of the Constitution of India.
The provision of Article 139A of the Constitution relating to withdrawal of a case by the Supreme Court from a High Court to itself on the ground of pendency before the Supreme Court of a case involving same or similar questions of law, contemplates fulfillment of two conditions. First, in the case before the Supreme Court, the questions of law involved ought to be the same or substantially the same as those involved in the case in the High Court, the withdrawal of which can be asked for.
Secondly, the Supreme Court, while exercising the jurisdiction vested in it under Article 139A of the Constitution must be satisfied that such questions are substantial questions of general importance. Such satisfaction can be on the SC’s own motion, on an application made by the Attorney General or on the basis of an application made by a party to any such case.
One of the key points involved in the appeal of the State of Gujarat in the case of Ms Dulari Mahesh Basgare & another (Civil Appeal Nos. 9546-9549/2016) is as to whether the Ordinance involved therein is contrary to the ratio laid down by this Court in Indra Sawhney v. Union of India-[ (1992) Supp (3) 217] or not. The writ petition before the Punjab and Haryana HC is also anchored on the same authority, in assailing the notification of September 27, 2013. The SC has been also satisfied that the writ petition pending before the Punjab and Haryana HC as also the appeal in the case of State of Gujarat involve substantially the same questions of law and these questions are of general importance.
The fact that the Gujarat Ordinance was promulgated before coming into effect of the Constitution (103rd Amendment) Act, 2019 does not have significant distinguishing impact so far as the questions forming the basis of the said Civil Appeal and the writ petition pending before the Punjab and Haryana HC are concerned.
The decision In the case of Commissioner of Services Tax v. Sri Selvaganapathy and Co. [2018(4)SCC 578] was cited by the State respondents in support of their contention that the pending writ proceedings could wait for the final outcome of the Civil Appeal.
On behalf of the petitioners, on the other hand, the case of L.K.Venkat v. Union of India – [2012 (5) SCC 292] was referred to. This was a case arising out of a writ petition filed in the Madras HC for quashing of order of rejection of clemency petition by the President. In that case, one of the grounds for seeking transfer was that questions advanced in the writ petition was identical to the question raised in two other cases pending before the Supreme Court.
The Supreme Court found in the case of L.Venkat that the common question was whether long delay in deciding a mercy petition entitled the convict to seek commutation of death sentence or not. The petition was allowed by the Supreme Court.
Article 139A vests the SC with jurisdiction to direct transferor withdrawal of a case pending in a HC to itself on two grounds. On satisfaction of these conditions, the Supreme Court can issue direction in exercise of its discretion for withdrawing the case for disposal of the same by itself. The manner of exercising such discretion would vary from case to case.
The decision of the SC in Sri Selvaganpathy & Co. case cannot be held to have laid down any absolute proposition of law guiding transfer or withdrawal of a case from HC to the SC. The course mandated by the SC in that particular case was in the facts of that particular case.
So far as the three intervention applications are concerned, in dealing with a petition under article 139A of the Constitution of India, according to the SC there was no reason to allow the applicants’ plea for being impleaded. The Court saw no reason of any possibility of their interests getting prejudiced, if the SC directed withdrawal of the writ petition from the Punjab & Haryana HC to itself.
Once the writ petition is withdrawn or transferred to the SC, they can always come back with similar plea for impleadment and with this observation, the SC dismissed all the three applications.
In this case the petitioners had sought transfer of a writ petition pending in the P&H High Court to the SC. The main ground for making this plea has been that the SC is hearing certain appeals on near identical point to the one which forms subject of controversy in that writ petition. In the writ petition a notification issued by the State of Haryana bearing dated September 27, 2013 is under challenge. Under this notification 10 pc vertical reservation for economically backward persons in general category in certain fields of public employment has been provided. According to the petitioners, such reservation would take the total number of reserved posts beyond the 50 pc limit laid down by the SC in the Indra Sawhney’s decision.
The SC has pointed out that points involved in the said civil appeal and the writ petition pending in the P&H HC require adjudication of substantially the same questions of law. These questions have arisen in two different States and in the SC’s opinion these are substantial questions of general importance.
Accordingly, the SC has directed withdrawal of the WP 7607/2019 pending in the P&H HC to itself for disposal of the said petition and allowed the Transfer Petition.
