Eduspark International Pvt. Ltd vs Union Of India And Others on 30 April, 2026

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    Jammu & Kashmir High Court

    Eduspark International Pvt. Ltd vs Union Of India And Others on 30 April, 2026

    Author: Moksha Khajuria Kazmi

    Bench: Moksha Khajuria Kazmi

                                                                               Sr. No.
    
            HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU
    
    WP (C) No. 3731/2025
    
    Eduspark International Pvt. Ltd.                                     ..... Petitioner(s)
    
                                       Through :- Mr. Rahul Pant, Sr. Advocate with
                                                  Mr. Rahul Sharma, Advocate &
                                                  Mr. Sunil Tilokchandani, Advocate
                             v/s
    Union of India and others                                           .....Respondent(s)
    
                                       Through :- Mr. Raman Sharma, AAG for R-2 and 3
    
    CORAM:      HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
    
                                         ORDER
    

    30.04.2026

    1. The petitioner herein is a company registered and incorporated under The

    Companies Act 1956. The respondent No.1 is having superintendence and

    control over Deen Dayal Upadhyay Gramin Kaushalya Yojana(DDU-

    GKY). Respondent No.3 is the Chief Operating Officer of Himayat

    Mission Management Unit, Jammu and Kashmir State Rural livelihood

    mission under the administrative control of Department of Rural

    Development and Panchayati Raj, Government of Jammu and Kashmir.

    2. This petition has been preferred by the petitioner by invoking the

    extraordinary writ jurisdiction of the Court vested under Article 226 of the

    Constitution of India, challenging the action of respondent No.3 in issuing

    impugned notice of imposition of penalty dated 10 th November, 2025

    against the petitioner, to pay a penalty of 2% of the amount released in

    favour of the petitioner, amounting to Rs.5,65,048/-. The petitioner has also

    challenged the recovery notice issued by respondent No.3 dated 10 th

    November 2025, under which respondent No.3 has to recover the entire
    WP(C) No.3731/2025 2

    amount of Rs.2,82,52,397/-released in favour of the petitioner along with

    interest @10% per annum.

    3. The petitioner through the medium of instant petition has sought for the

    following reliefs-:

    ―i) issue a writ of certiorari and/or any other writ in the nature of certiorari
    thereby quashing and setting aside the Impunged Penalty Notice dated
    10th November, 2025 bearing Reference
    No.COO/JKSRLN/HMMU/25/2019/2868-2879 issued by respondent
    No.3 (Annexure-I to the Petition).

    ii) issue a writ of certiorari and/or any other writ, order or direction in the
    nature of certiorari thereby quashing and setting aside the Impugned
    Recovery Notice dated 10th November, 2025 bearing Reference
    No./COO/JKSRLM /HMMU/25/2019/2879-2889 issued by respondent
    No.3 (Annexure-I to the petition);

    iii) issue Writ of Mandamus and/or any other writ, order or direction in the
    nature of Writ of Mandamus thereby directing respondent No.3 to
    forthwith withdraw and/or cancel the impugned Penalty Notice dated
    10th November, 20225 bearing Reference No.COO/JKSRLN/HMMU/
    25/2019/2868-78 issued by respondent No.3.

    iv) issue Writ of Mandamus and/or any other writ, order or direction in the
    nature of Writ of Mandamus thereby directing respondent No.3 to
    forthwith withdraw and/or cancel the Impunged Recovery Notice dated
    10th November, 2025 bearing Reference No. No.COO/JKSRLM
    /HMMU/25/2019/2879-2889 issued by respondent NO.3 being
    Annexure-I to the petition.

    v) to declare that the petition has not committed any acts of default that
    would render the petitioner liable to any major or minor penalty;

    vi) Any other just and equitable order that this Hon’ble Court deems fit be
    granted.‖

    4. On 29-12-2025, an objection with regard to the maintainability of the

    instant petition has been raised by the Court, on account of the fact that
    WP(C) No.3731/2025 3

    the Memorandum of Understanding duly signed by the petitioner

    company and the respondents contains an arbitration clause, which for

    facility of reference is reproduced hereunder-:

    ―9. Arbitration and Applicable Laws:

    9.1. The parties hereby agree that any controversy, claim or dispute
    arising in connection with this MoU, and which cannot be resolved
    amicably, shall be referred to the Chief Secretary (Chairman of the
    Executive Council of Jammu and Kashmir State Rural Livelihoods
    Mission in the State), whose decision shall be final and binding on all
    parties.

    9.2. All disputes shall be resolved as per the Government of India policies
    and applicable Indian/State Laws.

    9.3. If case is filed for judicial remedy, where the Ministry of Rural
    Development is the First Party, the case shall be filed in New Delhi.

    In case for judicial remedy, where the First Party is Himayat Mission
    Management Unit, Jammu and Kashmir State Rural Livelihoods
    Mission, the case shall be filed in the respective court in the State
    Headquarters.‖

    5. Learned counsels for the parties were directed to file affidavits, which

    stand filed by the counsels.

    6. Mr. Pant, learned senior counsel appearing for the petitioner- Company,

    states that Clause 9 of the MOU does not amount to an arbitration

    agreement within the meaning of Section 2(b) and Section 7 of the

    Arbitration and Conciliation Act, 1996. He has relied upon Alchemist

    Hospitals Ltd. v. ICT Health Technology Services India (P) Ltd., 2025

    SCC Online SC 2354 to strengthen his argument that the Clause 9 of

    memorandum of understanding is not decisive of the parties, it only

    contemplates the possibility of going for Arbitration, possibility of the

    parties agreeing to Arbitration. Moreover, the Chief Secretary (chairman
    WP(C) No.3731/2025 4

    of the executive Council of Jammu and Kashmir, State Rural Livelihood

    Missions in the UT) being an instrument of the state and an interested

    party, cannot be considered as a private terminal, as such cannot

    adjudicate upon the dispute in an impartial manner; Clause 9 neither

    specifies the procedure for adjudicating the disputes, nor does it specify

    the seat of arbitration under the rules; Clause 9.3 of MOU expressly

    provides an option to the parties to pursue judicial remedies before the

    court of law. Learned senior counsel appearing for the petitioner has

    placed reliance on the following judgments:

    1. Raichurmatham Prabhakar v. Rawatmal Dugar, (2004) 4
    SCC 766;

    2. Jagdish Chander v. Ramesh Chander and others, (2007) 5
    SCR 720; and

    3. Perkinds Eastman Architects DPC and another v. HSCC
    (India) Ltd
    .

    7. Mr. Pant would also argue that in terms of section 12 (5) of Arbitration

    and Conciliation Act 1996, Chief Secretary, who is also the Chairman of

    the State Rural Livelihood Mission, is ineligible to be appointed as an

    arbitrator regardless of any prior agreement entered into between the

    parties. For facility of reference, Section 12(5) of the Arbitration and

    Conciliation Act, 1996 and 7th Schedule of the Act is reproduced

    hereunder:

    “12. Grounds for challenge—

    ……………….

    ……………………..

    (5) Notwithstanding any prior agreement to the contrary, any
    person whose relationship, with the parties or counsel or the
    subject-matter of the dispute, falls under any of the categories
    WP(C) No.3731/2025 5

    specified in the Seventh Schedule shall be ineligible to be
    appointed as an arbitrator.‖
    THE SEVENTH SCHEDULE

    [See section 12(5)] Arbitrator’s relationship with the parties or counsel

    1. The arbitrator is an employee, consultant, advisor or has any other
    past or present business relationship with a party.

    2. The arbitrator currently represents or advises one of the parties or an
    affiliate of one of the parties.

    3. The arbitrator currently represents the lawyer or law firm acting as
    counsel for one of the parties.

    4. The arbitrator is a lawyer in the same law firm which is
    representing one of the parties.

    5. The arbitrator is a manager, director or part of the management, or
    has a similar controlling influence, in an affiliate of one of the parties if
    the affiliate is directly involved in the matters in dispute in the
    arbitration.

    6. The arbitrator’s law firm had a previous but terminated involvement
    in the case without the arbitrator being involved himself or herself.

    7. The arbitrator’s law firm currently has a significant commercial
    relationship with one of the parties or an affiliate of one of the parties.

    8. The arbitrator regularly advises the appointing party or an affiliate
    of the appointing party even though neither the arbitrator nor his or her
    firm derives a significant financial income therefrom.

    9. The arbitrator has a close family relationship with one of the parties
    and in the case of companies with the persons in the management and
    controlling the company.

    10. A close family member of the arbitrator has a significant financial
    interest in one of the parties or an affiliate of one of the parties.

    11. The arbitrator is a legal representative of an entity that is a party in
    the arbitration.

    12. The arbitrator is a manager, director or part of the management, or
    has a similar controlling influence in one of the parties.

    13. The arbitrator has a significant financial interest in one of the
    parties or the outcome of the case.

    14. The arbitrator regularly advises the appointing party or an affiliate
    of the appointing party, and the arbitrator or his or her firm derives a
    significant financial income therefrom. Relationship of the arbitrator to
    the dispute

    15. The arbitrator has given legal advice or provided an expert opinion
    on the dispute to a party or an affiliate of one of the parties. 16. The
    arbitrator has previous involvement in the case. Arbitrator’s direct or
    indirect interest in the dispute
    WP(C) No.3731/2025 6

    17. The arbitrator holds shares, either directly or indirectly, in one of
    the parties or an affiliate of one of the parties that is privately held.

    18. A close family member of the arbitrator has a significant financial
    interest in the outcome of the dispute.

    19. The arbitrator or a close family member of the arbitrator has a
    close relationship with a third party who may be liable to recourse on
    the part of the unsuccessful party in the dispute.

    Explanation 1.–The term ―close family member‖ refers to a spouse,
    sibling, child, parent or life partner.

    Explanation 2.–The term ―affiliate‖ encompasses all companies in
    one group of companies including the parent company.
    Explanation 3.–For the removal of doubts, it is clarified that it may
    be the practice in certain specific kinds of arbitration, such as maritime
    or commodities arbitration, to draw arbitrators from a small, specialized
    pool. If in such fields it is the custom and practice for parties frequently
    to appoint the same arbitrator in different cases, this is a relevant fact to
    be taken into account while applying the rules set out above.‖

    8. In the affidavit filed by learned counsel for the respondent Nos.2 & 3, Mr.

    Raman Sharma, it is stated that the MOU read with Sanction order and

    applicable DDU-GKY SOPs and Guidelines provide a structured and

    comprehensive mechanism for imposition of penalty and for filing of an

    appeal against such penalty being imposed. It is stated that the Recovery

    Notice dated 10.11.2025 along with SF 10.3E, Notice of Penalty arose

    from project closure assessment upon expiry of tenure and non-

    achievement of mandatory placement benchmarks as stipulated under

    DDU-GKY Guidelines. According to the respondents, the earlier penalty

    related to submission of forged documents for financial disbursal, where

    recovery pertains to independent assessment of non-performance and

    failure to meet sanctioned milestones at closure stage. It has further been

    stated that the contractual relationship between the parties is governed by

    the Sanction Order and the MOU. While the MOU contains an arbitration
    WP(C) No.3731/2025 7

    clause for adjudication of disputes, therefore, present writ petition is not

    maintainable. It is further stated that Clause 10.03.02 clearly provides for

    suo motu imposition of penalty and filing of appeal against such penalty.

    For facility of reference, Clause 10.3.2 of the DDU-GKY Guidelines is

    reproduced hereunder:-

    ―10.3.2 Suo Motu Imposition of Penalty
    Notwithstanding the process delineated in 10.3.1 above, in exceptional
    cases (for example, diversion or funds, fraudulent practices, persistent
    defaults, actions that affect the safety of candidates), the competent
    authority may decide to impose penalty suo motu on a PIA. In such
    cases, penalty will be imposed directly on the PIA without issuance of
    any Alert or Notice. However, the PIA will retain the right to appeal
    against the penalty, and the appeal process will be followed as
    described above.‖

    9. Heard learned counsel for the parties and perused the material on record.

    10. Learned senior counsel appearing for the petitioner has fairly conceded

    that in terms of clause 10.3.2 (supra) there is a provision for filing of an

    appeal against the impugned penalty notice dated 10.11.2025, before the

    competent authority, as such petitioner-company would not press upon

    relief No. (i) and (iii) made in the prayer part of the writ petition, for that

    petitioner would avail the remedy available in terms of clause 10.3.2 of

    DDU-GKY Guidelines. Ordered accordingly.

    11. As far as appeal preferred by the petitioner against the penalty order dated

    22.04.2022 by way of an Appeal dated 13.05.2022 is concerned, the same

    is presently pending before the Appellate Authority on account of

    petitioners continued failure to comply with the mandatory directions

    issued during the appellate proceedings. The earlier penalty imposed in

    the year 2022 was on account of submission of forged placement
    WP(C) No.3731/2025 8

    documents for the purpose of financial dispersal, however, the subsequent

    action taken in the year 2025, which culminated into issuance of notice of

    imposition of penalty and recovery notice dated 10.11.2025, arose out of a

    separate and an independent assessment conducted at the time of project

    closure, upon expiry of project tenure and evaluation of overall

    performance.

    12. Learned counsel for the respondent has stated that the MOU dated 30. 08.

    2018, read with the sanction order dated.19.07.2018, the applicable DDU

    – GKY SOPs and guidelines provide a structured and comprehensive in-

    house mechanism under clause 9 of the Arbitration and applicable laws,

    as such on account of alternate efficacious remedy available to the

    petitioner, writ petition under Article 226 would not be maintainable.

    13. Clause 9.1 of the MOU clearly states that if the parties agreed that any

    controversy, claim or dispute arising in connection with the MOU, which

    can’t be resolved amicably, shall be referred to chief secretary, who is

    also the Chairman of the Executive Council of Jammu & Kashmir State

    Rural Livelihood Mission of the State, whose decision shall be final and

    binding.

    14. Mr Pant, learned counsel for the petitioner states that clause 9 of MOU

    doesn’t amount to arbitration agreement within the meaning of section

    2(b) and section 7 of the arbitration and conciliation act, 1996.

    15. Learned counsel for the petitioner as well as respondent has relied upon

    M/s Alchemist (supra) wherein it has been held that the clause of

    Arbitration must show a clear, unequivocal intention to arbitrate, to be
    WP(C) No.3731/2025 9

    valid under section 7 of the Arbitration and Conciliation Act, 1996. The

    use of word arbitration is not sufficient if the process lacks finality or

    binding effect. The complaining party shall seek amicable settlement

    remedies inter se rather than a definitive submission of arbitration, failing,

    which the party has the option to proceed to the Courts of law. It has

    further been held that the individuals designated as arbitrator under the

    clause are the respective chairman of the parties themselves. Ordinarily,

    Arbitration contemplates reference to a neutral third party, a process

    supported by Section 12 with Seventh Schedule of Arbitration and

    Conciliation Act, which ipso facto disqualify the Clause from being an

    arbitration agreement. Since this may be waived under the proviso to

    section 12 (5), it remains a significant circumstance in discerning the true

    intention of the parties. It is further held that once the view has been taken

    that there is no agreement, then the only option available to the parties is

    to approach Courts of law.

    16. Mr Pant has also relied upon judgment of Chhattisgarh High Court, in

    case titled Shri Om Prakash, Bansal Educational and Social Welfare

    trust v. Union of India of India, 2023:CGHC:33076, which has been

    upheld by Supreme Court. Paragraph No.18 of the judgment, is relevant

    for our purposes and set out below:

    ―18. From perusal of Clause 8 of the MOU, it is evident that there is no
    clause for referring the disputes between the parties to the Arbitrator
    and it only provides for a mechanism to resolve the dispute amicably
    and the order passed by the State Government shall be binding. The
    judgments cited by the learned counsel for the applicant are not
    applicable to the facts of the case in hand and on the contrary, the
    WP(C) No.3731/2025 10

    decision rerndered by the Supreme Court in Mahanadi Coalfields Ltd.
    and another v. IVRCL AMR Joint Venture
    , 2022 SC Online SC

    960.‖

    17. Supreme Court in Central Organisation for Railway Electrification v

    M/S ECI SPIC SMO MCML (JV) A Joint Venture Company, 2024

    INSC 857, which is a constitutional Bench judgment, has held that

    unilateral, appointment of a sole arbitrator is biased and violate principles

    of independence and impartiality. In public-Private contracts, excessive

    control by government body over arbitrator’s selection violates the

    constitutional right of equality under article 14 of the Constitution of

    India. This judgment has considered the Perkins Eastman (supra) and

    TRF Limited. V/s Energo Engineering Projects Limited, (2017) 7

    SCR 409 wherein it was held that the test to determine the possibility of

    bias is directly relatable to the interest the person appointing an arbitrator

    has in the outcome of the dispute, a person having an interest in the

    dispute cannot and should not have any role in charting out any course of

    dispute resolution by having the power to a point and arbitrator. Paragraph

    No.56 of the Central Organization for Railway Electrification (supra)

    is relevant and is reproduced hereunder:

    ―56. With these findings and observations, I summarise my
    conclusions as follows:

    I. Dispute resolution through arbitration encompasses two
    independent yet interdependent principles: contractual
    freedom as party autonomy and statutory obligation as
    duty to constitute an independent arbitral tribunal.

    II. Party autonomy in making of an arbitration agreement is
    an essential feature of arbitration. It commences with
    choosing the members of the arbitral tribunal, extends to
    the procedure that would apply for its conduct, and
    WP(C) No.3731/2025 11

    concludes with the method by which an award could be
    challenged before a court. It is thus a brooding and
    guiding spirit of arbitration. Party autonomy is
    sufficiently incorporated in the Arbitration Act, along
    with a restraint on judicial intervention.

    III. The moment parties choose arbitration over ordinary
    civil proceedings for dispute resolution, their duty to
    establish an independent and impartial tribunal arises.
    The substitution of arbitration in place of civil courts as
    an exception under Section 28 of the Contract Act is
    only for a forum and not for contracting out of the most
    essential feature of a dispute resolution, i.e.,
    independence and impartiality must exist in every
    forum. This essential feature is the inviolable public
    policy consideration under Section 23 of the Contract
    Act from which the parties cannot opt out. Arbitration
    agreements which are not compliant of this public policy
    consideration are void under Section 23 of the Contract
    Act. Thus, there is a statutory incorporation of duties of
    the parties to the arbitration agreement.

    IV. If an arbitration agreement is considered by the court as
    not enabling constitution of an independent and
    impartial tribunal, any submission that the said
    agreement is a binding contract, or it is in exercise of
    party autonomy is not tenable as such an agreement will
    be against public policy and as such not an enforceable
    contract.

    V. In view of the statutory incorporation of these duties, it
    is not necessary to apply public law principles evolved
    in constitutional and administrative laws.

    Sourcing these duty obligations from Contract Act and
    Arbitration Act is important to maintain the integrity of
    the party autonomy and restraint of judicial institutions.

    VI. The power to ensure that the arbitration agreement is
    compliant of the public policy requirement of
    establishing an independent and impartial tribunal is
    always of the Court. This principle is recognised and
    statutorily incorporated in the Contract Act and the
    Arbitration Act. It is the duty of the court to ensure that
    the arbitration agreement inspires confidence and it will
    enable establishment of an independent and impartial
    arbitral tribunal.

    VII. Neither public policy considerations under the Contract
    Act
    or the Arbitration Act restrain the parties to the
    arbitration from maintaining a panel of arbitrators in any
    WP(C) No.3731/2025 12

    manner. However, arbitration agreements enabling one
    of the parties to unilaterally constitute arbitral tribunal
    do not inspire confidence of independence and may
    violate the public policy requirement of constituting an
    independent and impartial tribunal. The court will,
    therefore, scrutinise the agreement and hold them to be
    invalid if it considers it appropriate.

    VIII. The occasion for the court to examine the constitution
    of the independent and impartial tribunal under the
    arbitration clause will arise when one of the parties
    makes an application under Sections 11, 14 or 34. It is
    not permissible for the court to give an advance
    declaration that all such agreements which enable one
    of the parties to unilaterally constitute the arbitral
    tribunal would be void per se. No two agreements are
    the same and it is necessary for the court to examine the
    text and context of the agreement.

    IX. All applications pending before the courts challenging
    the unilateral appointment clauses will be disposed of
    applying the test as to whether such a clause enables
    establishment of an independent and impartial tribunal.‖

    18. From the above, it becomes quite clear that Clause 9 of the MOU is only

    an in-house mechanism subject to the consent of the parties, as such is not

    covered in terms of section 2(b) and Section 7 of the Arbitration and

    Conciliation Act of 1996. The appointment of chief secretary as arbitrator

    who is also the chairman of the executive council of Jammu & Kashmir

    State Rural Livelihood Mission of the State is also not in consonance with

    Section 12 (5) of the Act read with Seventh Schedule of Arbitration and

    Conciliation Act of 1996.

    19. Petitioner company has availed remedy under Article 226 of the

    Constitution of India against Union of India, through Ministry of Rural

    Development, However, as per clause 9.3, in case of judicial remedy

    against Ministry of Rural Development case has to be filed in New Delhi

    only. With the consent of learned counsel for the petitioner respondent no.
    WP(C) No.3731/2025 13

    1 i.e. Union of India through Ministry of Rural Development (Respondent

    No.1) is deleted from the array of respondents.

    20. Registry is directed to update memo of parties and delete prayer no (i) and

    (iii) made in the writ petition.

    21. In view of above, this Court is of the opinion that in absence of arbitration

    clause strictly in terms of Section 2(b), Section 7 and Section 12 (5) read

    with Seventh Schedule of Arbitration and Conciliation Act, 1996, this

    writ petition is maintainable under Article 226 of the Constitution of

    India.

    22. Learned counsel for official respondent is directed to file reply within four

    weeks. Registry to issue notice to private respondent.

    23. Meanwhile, subject to objections till next date of hearing, impugned

    recovery notice dated 10-11-2025, shall remain stayed. Alteration/

    vacation/ modification on motion.

    24. List on 29th June, 2026.

    (Moksha Khajuria Kazmi)
    Judge
    JAMMU
    30.04.2026
    Manan
    Whether the order is speaking : Yes/No
    Whether the order is reportable : Yes/No

    Vinod Kumar
    2026.05.05 11:04
    I attest to the accuracy and
    integrity of this document



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