Arbitration is a private dispute resolution mechanism whereby two or more parties agree to resolve their current or future disputes by an arbitral tribunal, as an alternative to adjudication by the courts or a public forum established by law. Parties by mutual agreement forgo their right in law to have their disputes adjudicated in the courts/public forum. Arbitration agreement gives contractual authority to the arbitral tribunal to adjudicate the disputes and bind the parties.
Dispute between lessor and lessee:
The tenancy in question was not protected under the rent control legislation and the rights and obligations were governed by the Transfer of Property Act.
Who will decide the arbitrability of dispute?
‘Who decides Arbitrability?’ can be crystallized as under:
(a) Ratio of the decision in Patel Engineering Ltd.on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016(with retrospective effect from 23.10.2015) and even post the amendments vide Act 33 of 2019 (with effect from 09.08.2019), is no longer applicable.
(b) Scope of judicial review and jurisdiction of the court under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.
Subject to any permissible reservations i.e.either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit.Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to61the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.
Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female.
Reservation is not rigid:
Reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.
The Respondent No.1 passed the final year MBBS Examination in January, 2019. She completed the one-year Compulsory Rotary Internship as a Resident Intern from 28.03.2019 to 27.03.2020 at Malla Reddy Narayana Multispecialty Hospital. Thereafter, she was awarded Bachelor of Medicine and Bachelor of Surgery Degree on11.06.2020. In the meanwhile, she appeared in the All-India National Eligibility-cum-Entrance Test (NEET)Medical PG Entrance examination, 2020 on 05.01.2020.She secured All India Rank-93563 with 327 marks in the NEET examination for admission into Post Graduation Medical Course. The Respondent No.1 was called for counselling and was given provisional admission to the MS (General Surgery) course in the Mop-up Phase (MQ)-P3 on 28.07.2020 and was allotted to the Respondent No.2- College under Management Quota. According to the provisional allotment order, Respondent No.1 was required to report before the Principal of Respondent No.2-College by 04:00 PM on 30.07.2020. In case of failure to report before Respondent No.2 -College within the prescribed time, the provisional selection of Respondent No. 1 shall be automatically cancelled.According to Respondent No.1, she approached Respondent No.2-College along with her father on29.07.2020 and 30.07.2020 for submission of certificates and payment of tuition fees as well as college fees. Inspite of her presence in Respondent No. 2-College, the admission of Respondent No.1 was not completed. On30.07.2020, the last date for admission into PG Medical Courses was extended till 30.08.2020 pursuant to the directions issued by this Court. Respondent No.1 made an attempt to meet the Chairman of Respondent No.2-College on 07.08.2020. However, she was not permitted to meet the Chairman. 3.Having left with no other alternative, Respondent No.1 filed a Writ Petition for seeking a declaration that denial of admission to her in the PG Medical Course for the academic year 2020-2021 as illegal. Respondent No.1 also sought a direction to Respondent No.2-College to grant admission in MS (General Surgery). Respondent No.2-College filed a counter in the Writ Petition in which it was stated that the University constituted a Committee for verification of original certificates and students who were allotted provisional admission by the University were directed to approach the said Committee for the purpose of verification of original certificates. Respondent No.2-College denied that Respondent No.1approached the College for admission on 29.07.2020 or 30.07.2020. In the next sentence the Respondent No.2-College averred that Respondent No.1 and her father visited the College on 29.07.2020 only for the purpose of enquiring about the admission procedure and the requisite fee. As Respondent No.1 did not avail the opportunity of admission, Respondent No.1-Collegecontended that Respondent No.5 was given admission on 11.08.2020.
By its judgment dated 18.09.2020, a Division Bench of the High Court allowed the Writ Petition and directed the Appellant to create a seat in MS (General Surgery)and to grant admission to Respondent No.1. The High Court disbelieved the statement of Respondent No.2-College that Respondent No.1 did not approach the College either on 29.07.2020 or 30.07.2020. The admission granted to Respondent No.5 who is 2000ranks below Respondent No.1 on 11.08.2020 was found fault with by the High Court. As Respondent No.1 was illegally denied admission by Respondent No.2-College,the High Court directed creation of a seat and to grant admission in MS (General Surgery) to her.
In S. Krishna Sradha case(supra), Supreme Court held as follows: