057A

IN THE

HONOURABLE SUPREME COURT OF DIVISTAN

AT RADSRI

[The above matters have been clubbed under Article 142 of the Constitution of Divistan,

1950, read with Rule 5 of Order LV of the Supreme Court Rules, 2013]

IN THE MATTERS OF

M.L SHARMA

PETIONER

V.

STATE OF DILLI

[REPRESENTED BY EDUCATION MINISTER, MR. FLOWER-MOON TRIPARTITE]

RESPONDENT
 Civil Appeal No. 1001/2019

[Under Article 133 of the Constitution of Divistan, 1950, read with Rule 1 of Order XIX of

the Supreme Court Rules, 2013]

AND

MS DIVIKA ANJANI

PETIONER

V.

KULPANI LAW AND CO. LTD.

[REPRESENTED BY THE PRESIDENT OF KULPANI LAW AND CO. LTD.]

RESPONDENT

Civil Appeal No. 1060/2019

[Under Article 133 of the Constitution of Divistan, 1950, read with Rule 1 of Order XIX of

the Supreme Court Rules, 2013]

MEMORIAL ON BEHALF OF THE APPELLENT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................................................5

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

STATEMENT OF JURISDICTION................................................................................................8

ISSUES FOR CONSIDERATION..................................................................................................9

1. Is the Notification violative of Article 14 and Article 15 of The Constitution Of Divistan?9

2. Is the Notification violative of Article 19(1)(a) The Constitution Of Divistan?..................9

3. Are the clauses from 10.4 to 10.10 in the Employment Agreement between Ms Divika and

Kulpani Co. and Ltd. void under section 27 of The Divistan Contract Act, 1872?.....................9

SUMMARY OF ARGUMENTS...................................................................................................10

1. The Notification is violative of Article 14 and Article 15 of The Constitution of Divistan,

1950...........................................................................................................................................10

2. The Notification is violative of Article 19(1)(a) of The Constitution of Divistan, 1950....10

 3. The clauses from 10.4 to 10.10 in Employment Agreement between Ms. Divika Anjani

and Kulpani Co. and Ltd. is void under section 27 of the Divistan Contract Act, 1872............11

ARGUMENTS ADVANCED........................................................................................................12

I. THE NOTIFICATION IS VIOLATIVE OF ARTICLE 14 AND ARTICLE 15 OF THE

CONSTITUTION......................................................................................................................12

A. CCTV camera facilities extended only to primary schools.........................................12

B. The classification of students vide the notification to provide CCTV facilities is

unconstitutional......................................................................................................................13

C. There is discrimination of students on the basis of levels of schooling......................14

II. THE NOTIFICATION IS VIOLATIVE OF ARTICLE 19(1)(a)....................................15

A. The constant surveillance affects teachers’ freedom of speech and expression

guaranteed under article 19(1)(a)...........................................................................................15

B. The installation of CCTV cameras is not a reasonable restriction under Article 19(2)

on Article 19(1)......................................................................................................................16

III. THE CLAUSES 10.4 TO 10.10 IN THE EMLOYMENT AGREEMENT ARE VOID

UNDER SECTION 27 OF THE DIVISTAN CONTRACT ACT, 1872...................................16

A. The clauses are in restraint of trade.............................................................................16

PRAYER FOR RELIEF.................................................................................................................18

 INDEX OF AUTHORITIES

Cases

(1920) 3 KB 571............................................................................................................................19

1913 AC 724..................................................................................................................................19

Ajay Hasia v. Khalid Mujib Sehravardi (1981)1 SCC 722............................................................15

All India Customs and Central Excise Stenographers v. U.O.I (1988)3 SCC 91.........................15

Baldev Singh v. State of Punjab (2002)4 SCC 308........................................................................18

D.D.Basu, The Constitution Of India, (5TH Edn.)..........................................................................15

Lord Parker, Morris v. Saxelby (1920) AC 688, 710.....................................................................19

Ministry of Information and Broadcasting v. Cricket Assn. of Bengal, AIR 1995 SC 1236.........17

Narain Das v. Improvement Trust (1972)2 SCC 265.....................................................................14

Ramesh Thappar v .State of Madras 1950 SCR 594 (para 68).....................................................17

Samar Speciality Chemicals Ltd. v. Dr Biswajit Roy, AIR 2007 Mad 237....................................19

State of West Bengal v. Anwar Ali Sarkar AIR 1952 SCC 75.......................................................16

Superintendence Co of India v. Krishan Murgai, (1980) 2 SCC 246............................................20

Union Of India v. International Trading Co. (2003)5 SCC 437....................................................15

Statutes

Article 14, The Constitution of Divistan,1950..............................................................................14

Article 15,The Constitution of Divistan,1950...............................................................................16

Article 19 (2), The Constitution of Divistan,1950.........................................................................17

Article 19(1)(a), the Constitution of Divistan,1950.......................................................................17

section 27 of the Divistan Contract Act,1872................................................................................19

Treatises

Chitty On Contract (general Principles), (21st Edn), pp 48-82......................................................19

M.P Jain, The constitution of India, page 1011 (7th edition)..........................................................18

STATEMENT OF FACTS

1. The Republic of Divistan ensures Right to Education article 21-A of the constitution

enacted through Education is Important, 2009. A report highlighted the absenteeism and

sleeping on duty by teachers and staff while on duty. This prompted the government to

install CCTV cameras in class under notification D-4035/2019.

2. The teachers found the step violative of their freedom of speech and expression. The

students found it discriminatory as the cameras were installed only in primary schools.

3. M. L Sharma filed a PIL in the High Court Of Dilli bearing the number W.P. (C) No.

1051/2019 challenging the notification on the grounds it violated article 14, article 15 and

article 19(1)(a) but the step was struck down by the court. He filed an appeal in the

Supreme Court under Civil Appeal No. 1001/2019.

4. Ms Divika Anjani, a student of NLU Gautika, B.A L.L.B signed an employment

agreement with Kulpani law and Co. Ltd. on January 28, 2018. Ms Divika worked for 1

½ years before handing in her resignation. Her resignation was rejected because of a

clause in her resignation which requires her to work for a period of 2 years before

handing in her resignation.

5. She found clauses in her employment agreement violative of section 27 of Divistan

Employment act, 1827.

6. She filed a suit in the district court of Gautika. The court rule in the favor of the firm.

Aggrieved she approached the High Court of bearing Civil Appeal no. 1060/2019.
7. The supreme court of Divistan The Supreme Court of Divistan transferred the Civil

Appeal No. 1060/2019, and clubbed it with the Civil Appeal No. 1001/2019 filed by M.L.

Sharma. The matters have been listed for final hearing before the Supreme Court on

September 14, 2019.

Hence, the present matters before this Honourable Court.

 .

STATEMENT OF JURISDICTION

The appellants have approached this Honourable Supreme Court of Divistan in response to two

matters filed before this Honourable Court.

The first, being a civil appeal, invokes its Appellate Jurisdiction under Article 133 of the

Constitution of Divistan, 1950, read with read with Rule 1 of Order XIX of the Supreme Court

Rules, 2013.

The second, being a civil appeal, invokes its Appellate Jurisdiction under Article 133 of the

Constitution of Divistan, 1950, of the Supreme Court Rules, 2013.

The above matters have been clubbed under Article 142 of the Constitution of Divistan,1950,

read with Rule 3 of Order LV of the Supreme Court Rules, 2013.

All of which is urged in detail in the written submission and is submitted most respectfully
 ISSUES FOR CONSIDERATION

1. Is the Notification violative of Article 14 and Article 15 of The Constitution Of

Divistan?

2. Is the Notification violative of Article 19(1)(a) The Constitution Of Divistan?

3. Are the clauses from 10.4 to 10.10 in the Employment Agreement between Ms

Divika and Kulpani Co. and Ltd. void under section 27 of The Divistan Contract

Act,1872?
 4.

SUMMARY OF ARGUMENTS

1. The Notification is violative of Article 14 and Article 15 of The Constitution of

Divistan, 1950.

The notification is violative of article 14 which provides for Equality before all as the CCTV

cameras are only installed in primary schools, neglecting equal protection for the rest of the

school which faced the same problem. The decision to grant the primary school the privilege is

arbitrary. Such a classification is unconstitutional.

Secondly this is discrimination on the basis of the criteria of age whereby violating article 15

which prohibits discriminating people on the basis of religion, race, sex, place of birth and

others.

2. The Notification is violative of Article 19(1)(a) of The Constitution of Divistan, 1950.

The constant surveillance affects teachers’ Right to free speech and expression guaranteed under

article 19(1)(a). The installation of CCTV cameras is not a reasonable restriction under Article

19(2).
 3. The clauses from 10.4 to 10.10 in Employment Agreement between Ms. Divika

Anjani and Kulpani Co. and Ltd. is void under section 27 of the Divistan Contract

Act, 1872.

The clauses which deal with confidentiality, non-solicitation, non-competition and which restrain

trade for 2 years are held to be void.

 ARGUMENTS ADVANCED

I. THE NOTIFICATION IS VIOLATIVE OF ARTICLE 14 AND ARTICLE 15

OF THE CONSTITUTION.

The notification is violative of article14 and Article 15 as [A]. The classification of students vide

the notification is unconstitutional. [B]. CCTV camera facilities extended only to primary

schools [C]. There is discrimination of students on the basis of their ages.

A. CCTV camera facilities extended only to primary schools

Article 14 guarantees to all persons in our country equality before the law, equal protection of the

law which means that all persons are equally subject to the law and have a right to equal

protection in similar circumstances both in regard to privileges and liabilities imposed by the

laws1. Vide the notification the facility of the CCTV cameras were only bestowed to the Primary

schools of the State Of Dilli arbitrarily thereby violating the Right to Equal protection of law

guaranteed under Article 142 of the constitution of India. The irregularities reported under the

studies conducted affected all students equally3. The deficiencies in the system such as

absenteeism of the staff, teachers’ sleeping on duty violates The right of free education under

article 21-A of the constitution and the measures taken to protect this right is implemented

arbitrarily and all students are equals in this regard and under article 14 all equals are to be
1
Narain Das v. Improvement Trust (1972)2 SCC 265
2
Article 14, The Constitution of Divistan,1950
3
Proposition, para4
treated equally. Article 14 is attracted where equals are treated differently without any reasonable

basis. It strikes at the arbitrariness of the state action. The principle underlying the guarantee is

that all persons similarly circumstanced shall be treated alike both in privileges conferred and

liabilities imposed4.The basic requirement of Article 14 is fairness of action by the action, and

non-arbitrariness in essence and substance is the heartbeat of fair play. The State must validly for

a discernible reason, not whimsically for any ulterior purpose.5 The basic criterion of why the

state chose to bestow the facility of CCTV cameras to the primary schools and deprive the other

classes of school is unspecified.

In Ajay Hasia v. Khalid Murjid Sehravardi6 The Supreme Court observed as under

“……….it must therefore, now be taken to be well settled that what Article 14 strikes at is

arbitrariness because any action that is arbitrary, must necessarily involve negation of equality.”7

B. The classification of students vide the notification to provide CCTV facilities is

unconstitutional

Classification is merely a systematic arrangement of things in to groups or classes, usually in

accordance with some definite scheme. If the legislature reasonably classifies people for

legislative purposes as to bring them under well-defined class, it is not open to challenge on the

basis of denial of equal treatment. The test of permissible classification under article 14 is two-

fold
4
All India Customs and Central Excise Stenographers v. U.O.I (1988)3 SCC 91
5
Union Of India v. International Trading Co. (2003)5 SCC 437
6
Ajay Hasia v. Khalid Mujib Sehravardi (1981)1 SCC 722
7
D.D.Basu, The Constitution Of India, (5TH Edn.)
(i) that the classification must be founded on an intelligible differentia which distinguishes those

that are grouped together from others left out of the group, and (ii) that the differentia must have

a rational relation to the objects sought to be achieved by the Act. The differentia which is the

basis of the classification and the object of the Act are distinct and what is necessary is that there

must be nexus between them."8

The intelligible differentia made in this case is on level of schooling which is not reasonable as

the basis of classification has no rational relation to the object of the notification that is to

improve the standard of education by surveillance. This is because the aim of the legislature

Education is Important , 2009 is to ensure education for all between the ages 6-14 not just people

in the primary school.

C. There is discrimination of students on the basis of levels of schooling

Article 15 secures citizens against discrimination by the state on the basis of religion, sex, caste,

place of birth and others9. Discrimination a term used to deny someone the equal protection of

the laws and to treat all people the same10 .In this case one class is unfairly denied the facilities

which the others can avail based on baseless distinctions such as levels of education in this case.

The exclusion of other levels of education is discriminatory in nature.

8
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SCC 75
9
Article 15,The Constitution of Divistan,1950
10
Bryan A. Garner, Black’s Law Dictionary, Ninth Edition, 2009
 II. THE NOTIFICATION IS VIOLATIVE OF ARTICLE 19(1)(a)

The notification is violative of Article 19(1)(a) as [A]. The constant surveillance affects teachers’

Right to free speech and expression guaranteed under article 19(1)(a) 11. [B]. The installation of

CCTV cameras is not a reasonable restriction under Article 19(2)12.

A. The constant surveillance affects teachers’ freedom of speech and expression

guaranteed under article 19(1)(a)

All members of the society should be able to form their own beliefs and communicate them

freely to others13, this one of the essentials of teaching. A teacher for effectively teaching should

be able to have a free-wheeling conversation with students. Constant surveillance does not allow

for an open discussion on matters. It has a chilling effect on people 14. People cannot exercise

their right of free speech and expression efficiently and they are likely to censor their opinions if

they are constantly monitored. It (freedom of speech and expression) is the best way to find the

truest model of anything, since it is only through it that the widest possible range of ideas can

circulate. Equally important is the role it plays in facilitating artistic and scholarly endeavours of

all sorts15.Constant surveillance through CCTV’s cannot guarantee to ameliorate the deficiencies

in the system it in fact has a counter effect on the process of imparting education. The freedom of

free speech and expression cannot be infringed on the grounds of remote or speculative ground16.

11
Article 19(1)(a), the Constitution of Divistan,1950
12
Article 19 (2), The Constitution of Divistan,1950
13
Ramesh Thappar v .State of Madras 1950 SCR 594 (para 68)
14
Proposition,para 7
15
Ministry of Information and Broadcasting v. Cricket Assn. of Bengal, AIR 1995 SC 1236
16
Baldev Singh v. State of Punjab (2002)4 SCC 308
 B. The installation of CCTV cameras is not a reasonable restriction under Article 19(2)

on Article 19(1)

Article 19 (1)(a) is to remain within the four corner of Article 19 (2) 17. In the present case

restrictions cannot be placed on Article 19(1)(a) under Article 19(2) as the installation of CCTV

cameras do not ensure that the fundamental right to education is upheld. Telephone tapping

unless it comes within the grounds of restriction under Article 19(2) would infringe Article 19(1)

(a)18.

III. THE CLAUSES 10.4 TO 10.10 IN THE EMLOYMENT AGREEMENT ARE

VOID UNDER SECTION 27 OF THE DIVISTAN CONTRACT ACT, 1872

The clauses from 10.4 to 10.10 are void in the Employment Agreement as [A]. The clauses are in

restraint of trade.

A. The clauses are in restraint of trade

In Divistan all agreements in restraint of trade whether they are partially or totally void 19 under

section 27 of the Divistan Contract Act,1872 20. Clause 10.4 restrains trade of Ms Divika Anjani

partially as she is in a position to be forced into working for the firm. One of the principles is that

17
M.P Jain, The constitution of India, page 1011 (7th edition)
18
People’s Union for Civil Liberties v. U.O.I (1997) SCC 301
19
Chitty On Contract (general Principles), (21st Edn), pp 48-82
20
section 27 of the Divistan Contract Act,1872
that a master is not entitled to restrain his servant after the termination from offering

competition21.In Mason v. Provident Clothing and Supply Co Ltd 22., an employer was not allowed

to restrain his canvasser for three years after termination of employment as Haldane LJ noted

capacity for canvassing is a natural gift not due to special training with the employer. In this case

in her capacity as a lawyer she was given no special training from employees, thus (i) of clause

10.6 is void.

In Atwood v. Lamont23,an agreement between employer and employee wherein the employee

after termination of contract, the employee would not work within 10 miles of any business run

by employer was not upheld as it was found too wide and in restraint of competition. The reason

restraints are held against employees is directed not to prevent competition or against use of the

personal skill and knowledge acquired by the employee in the employee’s business 24. In the

present case she is forbidden from working in within 12 miles of form it is too wide and

unreasonable thus invalidating (ii) of clause 10.6. In any case, The Supreme Court exerted that a

restraint beyond the term of service would be prima facie void. In the case if it is valid, it will

expire after the natural term in the case of premature removal or left service earlier. 25 Ms Divika

Anjani leaves service earlier so none of the restrictive clauses from 10.4 to 10.10 are applicable

to her.

21
Samar Speciality Chemicals Ltd. v. Dr Biswajit Roy, AIR 2007 Mad 237
22
1913 AC 724
23
(1920) 3 KB 571
24
Lord Parker, Morris v. Saxelby (1920) AC 688, 710
25
Superintendence Co of India v. Krishan Murgai, (1980) 2 SCC 246
 PRAYER FOR RELIEF

Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities cited, it

is most humbly prayed before this Honourable Supreme Court of Divistan that it may be pleased

to:

1. Declare the notification to install CCTV cameras to be unconstitutional.

2. Declare the Employment Agreement between Ms. Divika Anjani and Kulpani Co. and

Ltd. to be void.

And pass any order in favour of the Appellant which this Court may so deem fit in the ends of

equity, justice and good conscience.

All of which is most respectfully and humbly submitted.

Date: September 14, 2019 S/d ___________

Counsel for the plaintiff

Counsel no.: 057A