ADVOCATE P.

SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT

COMPETITION - 2022

TEAM CODE: GANGA

ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT

COMPETITION– 2022

BEFORE THE HON’BLE HIGH COURT OF KALYANA

IN THE MATTER OF:

CHAMBER OF PRIVATE SECTOR ... PETITIONER

V.

STATE OF KALYANA ... RESPONDENT

WRIT PETITION NO. ___/2021

ON SUBMISSION TO THE HON’BLE HIGH COURT OF KALYANA

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

TABLE OF CONTENTS

Table of Contents.............................................................................................................................2

Index of Authorities.........................................................................................................................4

Statement of jurisdiction..................................................................................................................5

Statement of facts............................................................................................................................6

Statement of Issues..........................................................................................................................8

Summary of arguments....................................................................................................................9

Arguments advanced.....................................................................................................................11

1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF

KALYANA IS MAINTAINABLE.......................................................................................11

1.1. THAT THE CHAMBER OF PRIVATE SECTOR HAS LOCUS STANDI TO FILE THE

PRESENT PETITION....................................................................................................................11

2. THAT THE STATE OF KALYANA HAS NO LEGISLATIVE COMPETENCE TO

PASS THE LEGISLATION...................................................................................................11

2.1. THE SAID ACT IS UNREASONABLE, ARBITRARY AND UNJUSTIFIED.............................12

3. THAT THE PRIVATE SECTOR CONCERN DOES NOT FALL UNDER THE
DEFINITION OF STATE......................................................................................................12

3.1. THE STATE CANNOT THRUST UPON THE PRIVATE SECTOR CONCERN TO COMPLY

WITH THE LEGISLATION...........................................................................................................12

4. THAT THE LEGISLATIVE EXERCISE OF THE STATE IS REPUGNANT TO

THE CONSTITUTIONAL RIGHTS OF EQUALITY........................................................12

4.1. ARTICLE 14 HAS BEEN VIOLATED.................................................................................12

4.2. ARTICLE 15 HAS BEEN VIOLATED.................................................................................12

4.3. ARTICLE 16 HAS BEEN VIOLATED.................................................................................12

 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

5. THAT THE SAID LEGISLATION CONTRAVENES RIGHT TO CARRY ON

BUSINESS................................................................................................................................13

5.1. THE ACT CURTAILS THE FREEDOM TO PRACTISE PROFESSION, CARRY ON ANY

OCCUPATION, TRADE OR BUSINESS..........................................................................................13

5.2. THE ACT TRIES TO IMPOSE DEEP AND UNREGULATED CONTROL OVER THE PRIVATE

SECTOR CONCERN.....................................................................................................................13

6. THAT THE GOVERNMENT IS ESTOPPED FROM SUPERIMPOSING THE

ACT ON THE PRIVATE SECTOR AFTER ATTRACTING THEM TO INVEST IN
THE STATE WITH CONCESSIONS...................................................................................13

7. THAT THE RULE MADE UNDER THE SAID LEGISLATION IS CONTRARY

TO THE OBJECT OF THE ACT..........................................................................................13

Prayer.............................................................................................................................................14
ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

INDEX OF AUTHORITIES
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for the petition filed before this
Honourable Court. The petition invokes its writ jurisdiction under Article 226 of the
Constitution of India. It sets forth the facts and the laws on which the claims are based.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

STATEMENT OF FACTS

1. The State of Kalyana has adopted a major policy decision in 2018 in order to improve the
living conditions of its people and by virtue of this (new major policy decision) attracted
huge investments in various sectors by offering lands at subsidised prices, free water,
exemption from taxes and electricity.
2. As a result of incentives there has been massive growth in the mining operations and
industrial activities which generated more employment opportunities.
3. Since people of Kalyana were not used to employment related mining and industrial
activities, people from other states came to Kalyana and occupied these new jobs and the
people of Kalyana (locals) were employed majorly only in clerical, non-skilled and
menial jobs.
4. The local people were not happy as the outsiders occupied more percentage of jobs and
the local people continued to suffer from property and this resentment resulted in fight
between the locals and outsiders. And this led to the formation of Kalyana people’s
welfare organisation by the locals, which is a federation of 30 local associations from 30
districts from the state.
5. The locals and the organisation started bringing pressure on the government to adopt
policy for protection of interest of the locals by calling strikes and Bandhs which turned
in violence destruction of public property, Since the government was a coalition
government it could not adopt any policy to protect the interests of the locals
apprehending election results in the upcoming elections as the coalition partners are from
neighbouring states.
6. The regional party took full advantage of the situation, promised reservation for locals in
private sectors if their party is voted to power in the election, the regional party came out
with a catchy slogan that “jobs in Kalyana for residents of Kalyana”. This appealed to the
people and the regional party was voted to power with absolute majority in the 2021
elections. The regional party which is voted to power kept its word and enacted The
Kalyana State Equal Opportunity of Employment in the Private Sector Act, 2021.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

7. The Kalyana State Equal Opportunity Employment in Private Sector Act 2021,
provides for equal employment opportunities for the local residents in private sector,
it also seeks to secure and promote the interests of the investors, and to insulate them
from political interference. The Act is applicable to private sector companies,
societies, trusts, limited liability partnerships, etc. which employs more than 20
people and who have taken any incentives from the State. In addition, the Act
provides for 50% of the skilled and 80% of unskilled jobs reservation for the locals.
Persons who have lived in the State of Kalyana for 15 years prior to the date of
employment are eligible. The State Government is authorised to notify a list of
skilled jobs to which the Act applies, skilled jobs are defined to be those jobs that
require the applicants to be technically qualified. All State laws relating to the public
employment shall equally apply to the private sectors concern. The private sector has
to comply with the requirements of the said Act by 2025, in case of non-compliance
must return any benefit received from the government.
8. The government also enacted Rules for the said Act, 2021 by which it prohibited the
employee’s parties including the student wings of political parties.
9. The private sector companies formed group by name Chamber of Private Sector and filed
a writ petition in the HC of Kalyana challenging the constitutional validity of Act, 2021.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

STATEMENT OF ISSUES

I. Whether the writ petition filed by the Chamber of Private Sector at the High Court of
Kalyana is maintainable?

II. Whether the State of Kalyana has Legislative Competence to pass the legislation?

III. Whether the private sector concern falls within the ambit of Art. 12 of the Constitution?

IV. Whether legislative exercise of the State is repugnant to the constitutional rights of
equality?

V. Whether the said legislation contravenes the right to carry on business?

VI. Whether the government is estopped from superimposing the Act on the private sector after
attracting them to invest in the state with concessions?

VII. Whether the rule made under the said legislation is in consonance with the object of the
Act?
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

SUMMARY OF ARGUMENTS

I. THAT THE WRIT PETITION FILED BEFORE THE HIGH COURT OF

KALYANA IS MAINTAINABLE.

II. THAT THE STATE OF KALYANA HAS NO LEGISLATIVE COMPETENCE

TO PASS THE LEGISLATION.

III. THAT THE PRIVATE SECTOR CONCERN DOES NOT FALL UNDER THE
DEFINITION OF STATE.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

IV. THAT THE LEGISLATIVE EXERCISE OF THE STATE IS REPUGNANT

TO THE CONSTITUTIONAL RIGHTS OF EQUALITY.

V. THAT THE SAID LEGISLATION CONTRAVENES RIGHT TO CARRY ON

BUSINESS.

VI. THAT THE GOVERNMENT IS ESTOPPED FROM SUPERIMPOSING THE

ACT ON THE PRIVATE SECTOR AFTER ATTRACTING THEM TO
INVEST IN THE STATE WITH CONCESSIONS.

VII. THAT THE RULE MADE UNDER THE SAID LEGISLATION IS

CONTRARY TO THE OBECT OF THE ACT.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

ARGUMENTS ADVANCED

1. THAT THE WRIT PETITION FILED WITH THE HIGH COURT OF

KALYANA IS MAINTAINABLE:

The writ jurisdiction of the High Courts’ flows from Art. 226 1, which confers wide powers

enabling the court to issue writs, directions, orders for the enforcement of fundamental rights

or legal rights2. Exercise of writ jurisdiction in the High Court is discretionary in nature. It is

submitted that the writ petition is maintainable on primarily two grounds: 1.1. That the

chamber of private sector has locus standi to file the present petition; 1.2. That the right to

practise any profession, or to carry on any occupation, trade or business stand violated.

1.1. THAT THE CHAMBER OF PRIVATE SECTOR HAS LOCUS STANDI TO FILE THE PRESENT

PETITION

In public law, the rule that only the aggrieved person is entitled to seek judicial redress

has been liberalized to include any “public-spirited individual” or “association”. In case a

class of people have a collective grievance, even an unrecognised association may initiate

writ proceedings. In instances of public wrong or injury, if an act or omission by the State

runs contrary to the Constitution then any member of the public or association has locus

standi.

1
Power of High Courts to issue certain writs under Art. 226.
2
H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4 th ed., vol. 2, 2007 at p. 1586.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

1.2. THAT THE RIGHT TO PRACTISE ANY PROFESSION, OR TO CARRY

ON ANY OCCUPATION, TRADE OR BUSINESS STAND VIOLATED.

If the right guaranteed under Art. 19 stands to be violated, it is open for the aggrieved
person to seek judicial redress under Art. 226. It, is herein submitted that the fundamental
right under Art 21 may stand infringed.

2. THAT THE STATE OF KALYANA HAS NO LEGISLATIVE COMPETENCE TO

PASS THE LEGISLATION.

2.1. THE SAID ACT IS UNREASONABLE, ARBITRARY AND UNJUSTIFIED

3. THAT THE PRIVATE SECTOR CONCERN DOES NOT FALL UNDER THE
DEFINITION OF STATE.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

3.1. THE STATE CANNOT THRUST UPON THE PRIVATE SECTOR CONCERN TO COMPLY WITH
THE LEGISLATION

By Act 2021, The State has extended the operation of its laws relating to reservation in
public employment to the private sector and this is unconstitutional, because Art. 19(1)
(g) read with Art. 19(6) state can make law in relation to freedom to carry on any trade or
business prescribing professional or technical qualification to carry trade or business and
state can make law to carry on any trade or business by the state or by company owned or
controlled by the state to the exclusion of , complete or partial ,control of others.
Thus Article 19(6) it makes it clear that state can make law prescribing professional or
technical qualification necessary for carrying on trade or business and a law excluding all
others from carrying a particular trade or business.
Thus the state has, under the scheme of the constitution has no power to extend its laws
relating to reservation in public employment to promote private sector companies,
sectors, trust and CCP etc.

4. THAT THE LEGISLATIVE EXERCISE OF THE STATE IS REPUGNANT TO

THE CONSTITUTIONAL RIGHTS OF EQUALITY.

The Act is violative of Article 14 (i.e., right of every citizen to be treated equally irrespective of
their place of birth), Article 16(2) (i.e., restriction on discrimination against citizens on the
grounds of place of birth or residence) and Article 19(1)(g) (i.e., right to practice any profession,
carry on any occupation, trade, or business) of the Constitution.

Employment under the state under concurrent list says that the state has power to make law
in relation to employment under the state and not in private sector. Further state also has
power to make laws to create employment so as to eradicate unemployment in sector in
which state has control or major stakes.
Further item number 23 in the concurrent list also empower the state to make laws with
respect to social security and social insurance which basically relates to pension, gratuity and
insurance.

4.1. ARTICLE 14 HAS BEEN VIOLATED

 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

Art. 14 of the constitution guarantees equal protection of law and equality before law 3. Further
Art. 14 also strikes against arbitrary action on the part of the state and the action includes
enacting arbitrary laws.
In E. P. Royappa v. state of Tamil Nadu4, the Supreme Court gave a new dimension to Art. 14
by propounding a new concept of equality. Justice Bhagwati held:
“Equality is a dynamic concept of equality with many aspects and dimensions and it cannot be
‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positive point of
view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies;
one belong to the rule of law in republic while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Art. 14”.

In India the courts have followed the general principle that equal protection of the laws means
the right to equal treatment in similar circumstances and courts have declared a legislation
unconstitutional that contained discriminatory provisions where the discrimination is
unreasonable5.

It is submitted that any legislation that makes a classification must not be arbitrary but must be
rational and the classical test as judicially enunciated requires the fulfilment of two conditions to
hold a classification reasonable are-
1. The classification must be founded on an intelligible differentia which distinguishes those
that are group together from others
2. The differentia must have a rational relation to the objects sought to be achieve by the
law under challenge6
In the instant case the Act, 2021 provides reservation for 50% of skilled and 80% of
unskilled jobs to locals in private sector.

3
Art. 14 reads as the state shall not deny to any person equality before the law or equal protection of laws within the
territory of India.
4
AIR 1974 SC 555
5
Chiranjith Lal Chowdhary v. Union of India 1950 SCR 869
6
Yusuf v. State of Bombay 1954 SC 321; Balaji v. State of Mysore 1963 SC 649
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

4.2. ARTICLE 15 HAS BEEN VIOLATED

4.3. ARTICLE 16 HAS BEEN VIOLATED

Article 16(3) of the Constitution of India enables the Parliament to enact provisions for domicile-
based appointments in regard to a class or classes of employment or appointment to an office
under the Government of, or any local or other authority within, a State or Union territory.
However, these domicile-based reservations are applicable to only certain-classes of
employments and appointments.

Further Art. 16(4) empowers the state to make reservation for backward classes.
Art. 16(2) prohibits the state from making discrimination on the ground of residence in
respect of any employment or office under the state.
The constitution mandates equality of opportunity in the matter of public employment under
Art. 16 of the constitution and Art. 16(3) permits the parliament to make reservation in
employment on the ground of residence within a state.
In the instant case the Act, 2021 is made by the state legislature and that too in the area of
private sector. Hence Act, 2021 is enacted without any legislative power.
Art. 16(4) provides that state can make reservation for backward classes of citizens in public
appointment.
Art. 16(6) also provides that state can make reservation in public employment in favour of
economically weaker sections of citizens in addition to existing reservation for backward
classes of citizens, subject to maximum of 10% of posts.
Hence the sum and substance of Art. 16 is that state can provide reservation in public
employment on the ground of residence and on the ground of backward classes and also on
the ground of economically weaker sections of citizens.
Thus, the state has power to make reservations only in public employment not in
employment under private sector.
The preamble of the constitution, which is basic structure of the constitution, provides
equality of opportunity and to promote fraternity and unity.
In the instant case the Act, 2021 is contrary to the mandate under the preamble as it is against
ensuring equality of opportunity and the Act, 2021 is creating two sections in the society as
locals and outsiders which is against the mandate of fraternity and also the Act, 2021 is
against the mandate of assuring unity as it is dividing the society on the ground of residence.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

5. THAT THE SAID LEGISLATION CONTRAVENES RIGHT TO CARRY ON

BUSINESS.

5.1. THE ACT CURTAILS THE FREEDOM TO PRACTISE PROFESSION, CARRY ON ANY
OCCUPATION, TRADE OR BUSINESS.

State based reservations not only interferes with the recruitment strategies of private enterprises
but also interferes with the constitutional rights of the citizens of India to carry out their business
and trade, as provided under Article 19 of the Constitution of India. It promotes discrimination in
respect of employment based on citizens' place of birth or residence and therefore, violative of
Article 16 (2) of the Constitution of India.

5.2. THE ACT TRIES TO IMPOSE DEEP AND UNREGULATED CONTROL OVER THE PRIVATE
SECTOR CONCERN.

The Supreme Court's in the case of P.A.Inamdar & Ors vs State Of Maharashtra & Ors 7 it was
held that "imposition of quota of State seats or enforcing reservation policy of the State on
available seats in unaided professional institutions are acts constituting serious encroachment on
the right and autonomy of private professional educational institutions...".

7
(2005) 6 SCC 537: AIR 2005 SC 3226
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

6. THAT THE GOVERNMENT IS ESTOPPED FROM SUPERIMPOSING THE

ACT ON THE PRIVATE SECTOR AFTER ATTRACTING THEM TO INVEST
IN THE STATE WITH CONCESSIONS.

7. THAT THE RULE MADE UNDER THE SAID LEGISLATION IS CONTRARY

TO THE OBJECT OF THE ACT.

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Hon’ble Court may be pleased to adjudge and declare:

1. That
2. That
3. That
4. That

And for this act of kindness the petitioners as are duty bound shall ever pray.
 ADVOCATE P. SHIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT
COMPETITION - 2022

DATE: 07/04/2022 (S/d)

PLACE: High Court of Kalyana (Counsels for the Petitioner)