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Indian Central Administrative Tribunal |
Central Administrative Tribunal
Principal Bench, New Delhi
T.A.No.566/2009
Wednesday, this the 13th day of January 2010
Honble Shri Shanker Raju, Member (J)
Honble Mr. N.D. Dayal, Member (A)
1. Sh. Chaman Lal,
s/o Sh. Jamma Singh
R/o 12-A/62, Vijay Mohalla,
Mayapuri, Delhi.
2. Sh. Ramesh Lal,
S/o Sh. Khonigoo,
Supdt. Municipal Corp. of Delhi,
Delhi.
..Applicant
(By Advocate: None for the applicant)
Versus
1. Municipal Corporation of Delhi,
(Service through its Commissioner)
Town Hall,
Delhi.
..Respondent
(By Advocate: Ms. Amita Gupta, counsel for the respondents)
O R D E R
Shri Shanker Raju:
In service matters there is no scope of Public Interest Litigation as ruled by the Apex Court in Gurpal Singh Vs. State of Punjab, 2005, SCC (C&S) 636. Old transfer case filed by Superintendent in MCD assails Office Order dated 14.08.1999 whereby as a stop gap arrangement against 75% quota prescribed for Superintendent for promotion as Administrative Officer/Assistant Assessor &Collector, 11 persons had been promoted on ad hoc basis. Also sought in this TA quashing of appointment to the post of Stenographer service and a direction to the respondents not to inter-mingle cadres into one. Recruitment regulations dated 30.08.1996 have also been assailed with a command to the respondent to appoint persons from Ministerial cadre to perform duties as Administrative Officer/Asstt. Assessor and Collector.
As none appeared for the applicant being an old case, TA is being disposed of under Rule 15 of CAT Ministerial Rules, 1987. In an interim order passed by the High Court on 01.09.1999 in C.M. No.9732/1999, respondent was restrained from filling up the post of AO/AA&C either on ad hoc basis or stop gap arrangement against the quota prescribed for the post of Superintendent from the employees of other cadres. Superintendent is the feeder cadre for LDC/UDC and Head Clerk. There is another cadre of Stenographers where the erstwhile regulations prescribed competitive examination which has been done away with on subsequent amendment.
Recruitment regulations for the post of Superintendent notified on 11.12.1980 reserves 20% of vacancies to Stenographer GradeI, 65% to Head Clerks and 15% to the Translators. Insofar as regulations for the post of Assistant Assessor &Collector a degree with three years experience with qualification relaxable at the Commissioners discretion, is in vogue . Subsequently, Amended Recruitment Rules for Stenographers cadre prescribed that the cadre of Stenographer Grade-I to be filled 100% from amongst the stenographer Grade-II and no competitive test was prescribed. However, Recruitment Rules for the post of Administrative Officer notified on and had been amended only in 1996 with the concurrence of the UPSC whereby 75% of the posts are to be filled by promotion from amongst Superintendents with three years regular service in the grade.
On 06.07.1997 an assurance was given by the respondent to fill up the post of AO/AA&C on promotion by four Superintendents, was not adhered to . On 14.08.1999 the respondent as a stop gap arrangement against 75% quota meant for Superintendent, appointed Senior Stenographers on promotion on ad hoc basis as AO/AA&C. However, with a stipulation that they will not be conferred seniority and as soon as officers from cadre of Superintendent become available, they would be promoted and the Senior Stenographer shall have to be reverted back. Accordingly, vide Resolution No.392 dated 09.10.2000, in view of the amendment in regulations in AO cadre, the UPSC did not agree but agreed with disposition of requirement of a degree as one time relaxation and Resolution No.41 of the Amendment Committee on 17.08.2000 sought to consider 41 non graduate Superintendents to be promoted to the post of AO/AA&C. Accordingly, as per respondents version as no Superintendent with requisite qualification and experience was available, the posts were filled up from Stenographers and Translators but it is stated that some posts have been filled up on transfer on deputation also as a stop gap arrangement. It is also stated that officials i.e. non-graduate Stenographers who had been working as A.O. have obtained stay from High Court. From reversion in CWP 3952/1996, it is also stated that seven Superintendents have been promoted as AO/AA&C by relaxing the condition of length of service.
Applicant in this W.P. has assailed disposition of competitive examination for Stenographic cadre and a grievance that the other incumbents from different cadres are being included as a feeder category for the post of A.O. It is also stated that Stenographic service being cadre in itself no incumbent should encroach upon the Ministerial cadre for appointment to the post of AO/AA&C which is exclusively meant for ministerial staff.
A challenge has been made on the ground that despite vacancies of UDC/Head Clerks and Superintendent people are not being considered on year wise basis by holding DPCs, it is also stated that in the ministerial cadre officials have a ferment right to be considered for promotion which has been denied to them.
Lastly, it is mentioned in the pleadings that by making ad hoc promotions, the quota meant for Superintendent has been encroached upon and ineligible persons have been appointed as such.
The respondents counsel denied the allegations. It is stated that the affected Stenographers not being made parties in this TA is made from non joinder on merit. It is stated that once the appointment on promotion in stenographic cadre by a Statutory Regulation disposes __ with the competitive examination, the same cannot be challenged. It is also stated that pay scales of different posts in the stenographic cadre were revised as per recommendations of Central Pay Commission. Earlier post of Superintendent was to be filled up from amongst Head Clerks, Stenographers and Translators. On revision of the pay scale of Translators and Stenographers who have been treated at par with Superintendent, the Recruitment Rules for the post of AO were amended to include Stenographers and Translators in the channel of promotion.
It is the stand of the respondent that the promotion in various categories is made in accordance with the RRs and hence none of the Superintendents were eligible as they were not considered. However, the resolution of 2000 has not been denied where seven persons on one time relaxation belonging to Superintendent cadre have been promoted as AO.
We have accordingly considered the pleadings in TA as well as contentions put forth by learned counsel for the respondents.
In our considered view, a change to the Recruitment Rules of AO whereby Stenographers and Translators have been indicated as feeder category cannot be assailed successfully in law as even for the post of Superintendent these two categories are feeder cadre. Moreover, once the Recruitment Rules have been framed prescribing the quota of 75% for Superintendent to be considered for promotion as AO, the grievance of the applicant that Stenographers are not eligible as they have not passed the competitive examination, cannot be held good as by way of regulations competitive examination has been done away with and there is no challenge to those Recruitment Regulations. Moreover, the amendment in the AO cadre was brought about in administrative exigencies as the pay scale of Stenographers and Translators got revised at par with Superintendent, as such they had become the feeder categories. The earmarked quota for Superintendent for their promotion cannot be assailed in law unless there is violation of Articles 14 and 16 of the Constitution of India is made out. Moreover, in the domain of executive framing of recruitment regulations is their prerogative, as such we are of the considered view that the Recruitment Rules for the post of AO/AA&C do not suffer from any legal infirmity.
As regards consideration of the applicant for promotion as A.O., is concerned, certainly right to be considered for promotion on fair and equitable basis, is a guaranteed Fundamental Right to a Govt. servant as ruled in S.B. Bhattacharjee vs. S.D. Mazumdar, 2008, 1 (SCC) Labor and Services 21.
Right to be considered for promotion also implies that promotional chances cannot be foreclosed forever and its purpose is to remove stagnation and avoid frustration among the employees, as held in A. Satyanarayana & others vs. Purushotham & others, (2008) 2 SCC (L&S) 279.
With the above back drop order passed by the respondents on 14.08.1999 whereby on a stop gap arrangement against 75% quota Senior Stenographers were promoted as AO/AA&C, is not fair and equitable exercise in law by the respondents. No feeder category can encroach upon the quota meant for other feeder category. However, this officiation shall not bestow upon the Stenographers any right to seniority or promotion but is also subjected to reversion on availability of promotee Superintendents. We deplead this but for want of impleadment of these Stenographers no adverse orders can be passed against them. Non impleadment is intervention of principles of natural justice.
However, another facet is that once 41 vacancies are to be filled amongst the Superintendent on promotion for the post of AO/AA&C on disposition of qualification, respondents have promoted only seven Superintendents. Applicant who states to be eligible was not considered which is violation of his Fundamental Rights. No decision has come forth to deny such a claim to the applicant specially in view of a communication between UPSC and Commissioner on 27.05.2002 where one time relaxation has been sought for promotion for Superintendent as AO/AA&C having not done so in case of the applicant at the relevant time certainly applicant has a right to be considered. Resultantly for the foregoing reasons this TA is purely right to the extent that the respondents are directed on relaxation of educational qualification to consider the claim of the applicant for promotion as AO/AA&C from 2000 in such an event the applicant shall be entitled to all consequences as admissible in law. This compliance shall be done within a period of two months from the date of receipt of copy of this order. No costs.
(Mr. N.D. Dayal) ( Shanker Raju )
Member (A) Member (J)
/van/
stare decisis
coram non judice
non-obstentae clause
Law on Subject
Union of India etc. etc. v. K.V. Jankiraman etc. etc.[1991] INSC 211; , (1991) 4 SCC 109,
Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485).
Hindustan Petroleum Corporation Ltd. v. Dairus Shapur Chenai & others, (2005) 7 SCC 627
Bhagwan Shukla vs. Union of India, 1994 (6) SCC 154,
State of Haryana vs. Ram Kumar Mann, 1997 (2) SC SLJ 257
Shri A.K. Sharma vs. Union of India, JT 1999(1)SC 113,
State of Bihar vs. Kameshwar Prashad Singh, 2001 (1) SC SLJ 76.
Chandreshwar Prasad Sinha vs. State of Bihar & Anr., 2002 SCC (L&S) 200,
Govind Prakash Verma v. Life Corporation of India & others, 2005 SCC (L&S) 590
Umesh Kumar Nagpal v. State of Haryana & others, JT 1994 (3) SC 525
Dr. Uma Aggarwal v. State of U.P. & another, 1999 (3) SCC 438
Secretary, State of Karnataka & others v. Umadevi & others[1996] INSC 638; , 2006 (4) SCALE 197, (2006) 4 SCC 1
Karnataka Power Corporation Ltd. & others v. K. Thargappar, SCALE 2006 (4) 56.
Shyam Babu Verma & others v. Union of India & others, 1994 SCC (L&S) 683.
U.P. Madhyamik Shiksha Parishad & others v. Raj Kumar Agnihotri, 2005 (2) SC SLJ 50,
Shyam Babu Verma v. Union of India, 1994 (2) SLJ SC
Sahib Ram v. State of Haryana, 1994 (5) SLR 753
Constitution Bench of the Apex Court in Mohinder Singh Gill v. Chief Election Commissioner, [1977] INSC 227; (1978) 1 SCC 405
High Court in Shakti Singh v. Union of India & others (CWP No.2368/2000) decided on 17.9.2002
Apex Court in Viveka Nand Sethi v. Chairman, J & K Bank Ltd. & others, 2005 SCC (L&S) 689, held that whenever medical leave is applied, it is necessary to produce the proper medical certificates, failing which it would remain as an unauthorized absence.
Apex Court in State of Maharasthra v. Rashid Babu Bhai, 2006 AIR SCW 162.
Indira Bhanu Gaur v. Committee, Management of M.M. Degree College & others, 2004 (1) SC SLJ 3 ruled that one, who does not avail an opportunity, cannot assail orders for violation of principles of natural justice.
Recently, the Apex Court in Union of India & others v. Ghulam Mohd. Bhat, 2006 (1) SC SLJ 32 upheld the punishment of removal on account of 315 days absence after the sanctioned leave.
Union of India v. J. Ahmed, [1979] INSC 64; 1979 (2) SCC 286, in the matter of misconduct observed that an act or omission or lack of efficiency or failure to attain highest standard of efficiency in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty and error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
Apex Court in State of U.P. & others v. Ramesh Chandra Mangalik, 2002 SCC (L&S) 413
Constitution Bench of the Apex Court in K. C. Sharma & others v. Union of India & others, 1998 (1) SLJ SC page 54 has held that those who are similarly circumstanced in the wake of interest of justice and to avoid multiplicity and to unnecessarily drag the parties to the Courts, are entitled for grant of the same benefits
Sanyunkta Arjuna v. Union of India & others, 2003 (1) ATJ 558.
State of Bihar & others v. Kameshwar Prasad Singh & another, 2001 (1) SLJ SC 76, and
Divisional Manager, Plantation Division, Andaman & Nicobar Islands v. Mannu Barrick & another, 2005 SCC (L&S) 200
H.D.Singh v. Reserve Bank of India & others, (1985) 4 SCC 201
Mineral Exploration Corporation Employees Union v. Mineral Exploration Corporation Limited & another, 2006 (7) SCALE 374
Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, (1985) 4 SCC 71
S.S. Mishra v. Central Board of Direct Taxes & others, 1994 (3) AISLJ 238 where it has been held that in the matter of ACR and adverse entries, which are without any supporting data, the same, even if it is advisory, cannot be recorded without following the procedure and unsupported entries without data cannot stay.
The decision of the Apex court in State of U.P. v. Yamuna Shanker Misra & another, (1997) 4 SCC 7 to substantiate his contention by stating that if one is not accorded an opportunity to improve upon in the form of memos, etc., any authority, which records the adverse remarks, is displayed callousness and non-application of mind.
The Apex Court in State of U.P. v. Narendra Nath Sinha, 2002 (1) ATJ SC 118 with a situation where though the reporting officer graded the reported officer as Good, Excellent but this has been toned down to Satisfactory by the reviewing authority, it was held that non-communication of a prior reasonable opportunity of the adverse remarks on disagreement is an infraction to the principles of natural justice.
Managing Director, ECIL v. B. Karunakar & others, 1993 SCC (L&S) 1184
Kuldeep Singh v. Commissioner of Police & others, JT 1998 (8) SC 603 in a Delhi Police case ruled that the Tribunal would not be precluded in a judicial review to interfere as if an appellate authority to re apprise the evidence or to substitute its own views but what is permissible for us in a judicial review of a departmental proceedings is to see whether the finding is perverse, based on no evidence or no misconduct. If the test of a common reasonable prudent man is not satisfied, the Tribunal would not only set aside the findings but the consequent orders as well.
Sher Bahadur v. Union of India & others, 2002 SCC (L&S) 1028 held that a mere statement with the evidence adduced is not sufficient to hold guilty.
Full Bench of this Tribunal in Ranvir Singh v. Govt. of NCT of Delhi & others (OA-340/2004)
Union of India & others v. H.C. Goyal, [1963] INSC 185; AIR 1964 SC 364. The Apex Court also in Sher Bahadur v. Union of India & others, 2002 SCC (L&S) 1028 held that a mere statement with the evidence adduced is not sufficient to hold guilty.
In Tata Engineering & Locomotive Co. Ltd. v. Jitendra Pd. Singh & another, 2002 SCC (L&S) 909, the Apex Court ruled that if the persons are found guilty of same incident in a separate proceeding, singling out one for punishment is a denial of justice.
The Apex Court in Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227 clearly ruled that failure of the respondents to put question under Rule 14 (18) of the Rules 1965 would be a serious infirmity in the procedure and it vitiates the inquiry as well as the consequent orders.
M.V. Bijlani v. Union of India & others, 2006 (3) SLR SC 105.
The Apex Court in Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227 clearly ruled that failure of the respondents to put question under Rule 14 (18) of the Rules 1965 would be a serious infirmity in the procedure and it vitiates the inquiry as well as the consequent orders.
the Apex Court in Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.Rs., (1979) 4 SCC 176 wherein technical pleas by the Government is ordered to be avoided.
R.C. Sharma v. Union of India & others, 2000 (4) SCC 394, the Apex Court has ruled that such a procedure where sealed cover is resorted to after the recommendation and before actual promotion is accorded to the government servant, is valid in law.
Union of India & others v. Dr. (Smt.) Sudha Salhan, 1998 (1) SC SLJ 353 wherein the issue was consideration by the DPC for promotion on 8.3.1989 but Committees proceedings were placed under sealed cover and subsequently the petitioner therein was placed under suspension on 16.4.1991 and the charge-sheet was issued on 8.5.1991.
the Apex Court in Narinder Mohan Arya v. United India Insurance Co. Ltd. & others, 2006 (3) SLR SC 92 defined with an observation that if there is non-application of mind, it cannot be gathered from recording of its ipsi dixit but it should be on with reference to the context that the contentions raised in the appeal are to be discussed and rebutted and thereafter a reasoned order has to be passed, still remains the order without application of mind and in violation of Rules 27 (2) of the Rules ibid
Union of India v. Kuldeep Singh, (2004) 2 SCC 590 with the following observations:
In its ordinary meaning, the word discretion signifies unrestrained exercise of choice or will; freedom to act according to ones own judgment; unrestrained exercise pf will; the liberty or power of acting without control other than ones own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of other. Discretion is the discern between right and wrong; and, therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rule of reasons and justice, not according to private opinion; according to law and not humor. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to have confined himself. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discrete.
In such an event, the latest decision of the Apex Court P.V. Mahadevan v. MD. T N Housing Board, 2005 SCC (L&S) 861 ruled that if there is no convincing explanation comes forth to explain the delay in a delayed action in issue of the charge sheet or even its completion, the government servant is certainly prejudiced in his defence
State of Madhya Pradesh v. Bani Singh & another, 1990 Supp SCC 738,
State of A.P. v N. Radhakrishnan, (1998) 4 SCC 154.
State of Punjab & others v. Chaman Lal Goyal, [1995] INSC 101; (1995) 2 SCC 570; and
State Bank of Patiala v. S.K. Sharma, [1996] INSC 465; (1996) 3 SCC 364.
S.N. Mukherjee v. Union of India 1991 SCC (L&S) 242
Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327
Yoginath D. Bagde v. State of Maharashtra & another, (1999) 7 SCC 739
G.M. Tank v. State of Gujarat & another, 2006 (3) SLJ SC 312
Dr. Duryodhan Sahu and others v. Jitendra Kumar Mishra & others, (1998) 7 SCC 273 CAT cannot entertain PIL.
Union of India & another vs. P.V. Hariharan & another, (1997) 3 SCC 568
South West Bengal State Transport v. Swapan Kumar Mitra, [1995] INSC 170; 2006 (2) SCALE 141
the Apex Court in Damoh Panna Sugar Rural Regional Bank & another v. Munna Lal Jainb, (2005) 10 SCC 84. Any decision of the administrative authorities would be irrational if it is passed in total defiance of logic, as has been held in State of NCT of Delhi & another v. Sanjeev Alias Bittoo, (2005) 5 SCC 181.
23. The Apex Court in Director (Marketing) Indian Oil Corporation Ltd. & another v. Santosh Kumar, 2006 (6) SCALE 358 in a case where disciplinary authority passed a mechanical order, which was reiterated by the appellate authority, passed the following observations:
11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh proposal to the Disciplinary Authority. The Disciplinary Authority shall consider the detailed representation made by the respondent and also consider the detailed report of the Enquiry Officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set-aside the direction issued by the High Court ordering re-instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs.
Mahavir Prasad v. State of U.P., [1970] INSC 85; AIR 1970 SC 1302 with the following decision:
Union of India & another v. Mohan Pal & Others (2002) 4 SCC 573.
Union of India v. Tarit Ranjan Das, 2004 SCC (L&S) 160, observed as under:
13. The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reasons contained therein whereby the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh order and rehearing of the matter to facilitate a change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with the review petition as if it was hearing an original application. This aspect has also not been noticed by the High Court.
Ram Chander v. Union of India & others, 1986 (2) SLJ 249 in a railway case laid stress on recording of reasons by the departmental authorities in the backdrop of a particular provision under the Railway Servants (Discipline & Appeal) Rules, 1968.
Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644
Randhir Singh vs. Union of India and others [1982] INSC 24; (1982) 1 SCC 618
Apex Court in B.C. Chaturvedi v. Union of India & others[1996] INSC 1022; , (1995) 6 SCC 749
R.S. Saini v. State of Punjab & others, (1999) 8 SCC 90.
Union of India v. J. Ahmed, [1979] INSC 64; 1979 (2) SCC 286.
Misconduct is an error of judgment as held by the Apex Court in Inspector, Prem Chand v. Govt. of N.C.T. of Delhi & others, 2007 (5) SCALE 421.
Hindustan Petroleum Corporation Limited v. Sarvesh Berry, (2005) 10 SCC 471.
Union of India & others v. Upendra Kumar, (1994) 3 SCC 357, Deputy Inspector General of Police v. K.S. Swaminathan, (1996) 11 SCC 498 and Chairman-um-M.D., T.N.C.S. Corporation Limited v. K. Meerabai, (2006) 2 SCC 255 to contend that in a judicial review the Courts are precluded from interfering in a disciplinary proceeding at an interlocutory stage and when the exceptions are not attracted, as the charge sheet neither contrary to law nor is there a case of misconduct, he prays for dismissal of the OA.
Ratan Chandra Sammanta & others v. Union of India others, JT 1993 (3) SC 419.
Madras Port Trust v. Hymanshu International by Its Proprietor V. Venkatadari (Died) by L.Rs., (1979) 4 SCC 176.
Apex Court in S.M. Munawalli v. State of Karnataka, (2002) 10 SCC 264 ruled that in the matter of pension a delay would not bar the substantial question of law.
Moreover, as held by the Apex Court in Apangshu Mohan Lodh v. State of Tripura & others, 2004 SCC (L&S) 10 that though the power of limitation is discretionary, yet it has to be liberally construed. In the light of above, we do not find that any law of limitation is attracted in the present case.
M/s. Mahabir Prasad Santosh Kumar v. State of U.P. & others[1970] INSC 85; , AIR 1970 SC 1302
M/s. Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal & others, 2007 (11) SCALE 374 ruled that when public authority acts as an administrative authority with oblique motive or on an extraneous or irrelevant considerations, the aforesaid exercise would not be an exercise in accordance with law.
In judicial review of an act of quasi-judicial authority, what is allowed to be interfered is the decision-making process. As held by the Apex Court in Damoh Panna Sugar Rural Regional Bank & another v. Munna Lal Jain, 2005 SCC (L&S) 567 that in the matter of proportionality, deficiency in decision-making process is enternainable on interference.
Suman Rakheja v. State of Haryana & another, (2004) 13 SCC 563
It is trite law that an appointment by fraud or forgery does not indefeasibly give a right to the concerned either to continue or to get any consequences on appointment. Article 311 of the Constitution or principles of natural justice have no applicability, as ruled by the Apex Court in Additional General Manager / Human Resource Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde, 2007 (7) SCALE 112 that appointment on a forged certificate would not entail reinstatement.
Also held by the Apex Court in State of Manipur & others v. Y. Token Singh & others, 2007 (3) SCALE 319 that a faulty appointment and its cancellation thereof, would not attract principles of natural justice. The decisions cited by the respondents have applicability in all fours to the case of the applicant.
Dadi Jagannadham v. Jammulu Ramulu, (2001) 7 SCC 71 held that when the intention of the legislature is clear in a rule framed under proviso to Article 309 of the Constitution, nothing can be added or subtracted by the Court and the intention of the legislature has to be gathered from the wording of the provision. In such an event, the safest way to interpret is to give the rule its literal and grammatical connotation in the form of interpretation.
Sanjay Singh & another v. U.P. Public Service Commission, Allahabad & another, (2007) 1 SCC (L&S) 870 that no words can be added and Court cannot make any deficiency in the recruitment rules.
Apex Court in Mohd. Masood Ahmad v. State of U.P. & others, 2007 (11) SCALE 271 and also in Prasar Bharati & others v. Amarjeet Singh & others, 2007 (2) SCC (L&S) 566. D.S. Nakara & others v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145 and such a policy decision is not only amenable to judicial review but is also liable to be set aside as per the policy
Delhi Development Authority, N.D., & another v. Joint Action Committee, Allottee of SFS Flats & others, 2007 (14) SCALE 507 as to judicial review of administrative law in a policy decision, the following observations have been made:-
59. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritties of the policies, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
60. Broadly, a policy decision is subject to judicial review on the following grounds:
if it is unconstitutional;
if it is de hors the provisions of the Act and the Regulations;
if the delegatee has acted beyond its power of delegation;
if the executive policy is contrary to the statutory of a larger policy.
A. Satyanarayana & others v. S. Purushotham & others, (2008) 2 SCC (L&S) 279 in the matter of right to be considered for promotion being treated as fundamental right under the Constitution of India, it implies promotional chances not to be foreclosed forever and its purpose is to remove stagnation and avoid frustration among the employees.
S.B. Bhattacharjee Vs. S.D. Majumdar & others, 2008 (1) SCC (L&S) 21 (2007) 10 SCC 513
In State of Punjab & others v. Chaman Lal Goyal, 1995 SCC (L&S) 541, a delay of more than 5 years had taken place in disciplinary proceedings and government servant was responsible of escape of prisoner involving of death of number of persons. This disciplinary proceeding and its delay was not found in the interest of administration but the delay would depend upon individuals case.
the Apex Court in Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176.
As per decision of Apex Court in Purnendu Mukhopadhyay & others v. V.K. Kapoor & another, 2007 (12) SCALE 549,
Tata Industries Limited & another v. Grasim Industries Limited, (2008) 10 SCC 187
Union of India & others v. Sangram Keshari Nayak, JT 2007 (6) SC 272
Punjab National Bank & others v. Shri Kunj Behari Misra, 1999 (1) SLJ 271 = JT 1998 (5) SC 548
the decision of the Apex Court in State Bank of Patiala & others v. S.K. Sharma, JT 1996 (3) 722 has been relied upon to contend that unless prejudice is shown, mere non following the procedure would not vitiate the inquiry.
In the light of decision of Apex Court in Moni Shankar v. Union of India & another, (2008) 1 SCC (L&S) 819 where an analogous provision under Rule 9 (21) of Railway Servants (Discipline & Appeal) Rules, 1968 was in question, non-compliance has been held to cause prejudice and has vitiated the order.
31. In Union of India v. Pushpa Rani & others, (2008) 9 SCC 242, insofar as policy matters and judicial review are concerned, following observations have made:-
37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring / restructuring of cadres, prescribing the source / mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
Apex Court in Anil Kumar Vitthal Shete & others v. State of Maharashtra & another, (2007) 1 SCC (L&S) 901 ruled as under:-
33. From the above decisions, it is clear that it is always open to an employer to adopt a policy for fixing service conditions of his employees. Such policy, however, must be in consonance with the Constitution and should not be arbitrary, unreasonable or otherwise objectionable. When several cadres are sought to be unified in few cadres, e.g. three cadres in the instant case, it is natural that all Judicial Officers have to be placed in one or the other cadre. The said fact itself cannot make the decision vulnerable. The High Court, in our opinion, considered the question in its proper perspective and while creating three cadres and placing Judicial Officers in one of the cadres, took into account the relevant principles. So far as the Judges of Small Causes Courts are concerned, they were placed in Category 2 but considering the fact that it was a promotional post from Civil Judges (Senior Division), all of them were en bloc placed above Civil Judges (Senior Division) in the said Category. We find no infirmity therein. It is also clear that in the State of Maharashtra, the new cadre of District Judges covers three existing cadres (i) District Judges, (ii) Joint District Judges, and (iii) City Civil Court Judges and all of them have been placed senior to other cadres in the same category of Additional District Judges, Chief Judges, Small Causes Court and Additional Chief Judges, Small Causes Court. This has been done on the basis that for the District Judge cadre, Additional District Judge cadre is a feeder cadre. The cadre of Additional District Judge is also a feeder cadre for the cadre of Judges of the City Civil Court. Likewise, the cadre of Additional Chief Judge, Small Causes Court is a feeder cadre for the Judges of City Civil Court. In other words, a person holding the post of Additional District Judge can be promoted as a District Judge or as a City Civil Court Judge. Since all the three cadres were to be merged, the superiority of the District Judges and the Judges of City Civil Court was required to be maintained and is accordingly maintained. But it does not mean that District Judges, Chief Judges, Small Causes Court and Additional District Judges/Additional Chief Judges, Small Causes Court cannot be placed in one and the same category. We, therefore, find no illegality in the decision of the Full Court on its Administrative Side which calls for interference.
Government of Andhra Pradesh & others v. P. Laxmi Devi, [1993] INSC 308; 2008 (3) SCALE 45 wherein it has been held that if a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer, the former will prevail.
in State of Uttar Pradesh & others v. Chaudhari Ran Beer Singh & another, (2008) 5 SCC 550.
Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176.
Major General J.K. Bansal v. Union of India, (2005) 7 SCC 227.
Jawaharlal Nehru University v. Dr. K.S. Jawalkar & others, 1989 (3) SLR 730
Uco Bank & another v. Rajinder Lal Capoor, (2008) 5 SCC 257.
Sanjay Singh & another v. U.P. Public Service Commission, Allahabad & another, (2007) 1 SCC (L&S) 870.
in Institute of Chartered Financial Analysts of India v. Council of the Institute of Chartered Accountants of India, (2007) 12 SCC 210 clearly ruled that when the statutory authority transgresses its jurisdiction, the decision making process is nullity in law.
What is permissible to be interfered in a policy decision is only the decision making process, as ruled by the Apex Court in Reliance Energy Limited & another v. Maharashtra State Road Development Corporation Limited & others, (2007) 8 SCC 1 that an act of the administrative authority amenable to be interfered when it suffers from illegality, irrationality and procedural impropriety.
The aforesaid law is well defined by the Apex Court in Ganesh Bank, Kurundwad Limited & others v. Union of India & others, (2006) 10 SCC 645 where the duty of the Courts is laid down to confine itself to the question of illegality, error in law, violation of principles of natural justice, unreasonable and unfair decision. Fairness is a sine qua non of administrative action and has to be tested on the touchstone of reasonableness.
Union of India & others v. Dineshan K.K., AIR 2008 SC 1026
Shekhar Ghosh v. Union of India & another, 2007 (1) SCC (L&S) 247
Basic Shiksha Parishad v. Union of India & others, 2004 SCC (L&S) 654.
Basic Education Board, U.P. v. Upendra Rai & others, 2008 (1) SCC (L&S) 771 ruled that any equivalence in the matter of qualification, the policy cannot be interfered as an administrative authority laying down qualification for equivalence is the prerogative of the Ministry of Labour & Employment and National Industrial Training Centre.
Union of India & others v. Tarsem Singh, (2008) 8 SCC 648
State of M.P. v. S.S. Rathore, [1989] INSC 268; AIR 1990 SC 10
Shankarsan Dash v. Union of India, [1991] INSC 121; (1991) 3 SCC 47, a Constitution Bench of Apex Court ruled that one does not have any indefeasible right to be appointed against vacancy but this does not also give licence to State to act in an arbitrary manner.
learned counsel for applicant would contend that any downgrading in ACRs as compared to the benchmark, which were considered by the DPC and not communicated to the applicant, goes against the dicta of Apex Court in Dev Dutt v. Union of India & others, 2008 (7) SCALE 403 (2008) 8 SCC 725
Secretary, A.P. Public Service Commission v. B. Swapna & others, (2005) 4 SCC 154 to contend that the merit list holders were required to be considered against the future vacancies even then the employer could have scrapped the merit list and resort to the fresh selection against the future vacancies is to be made.
relying on plethora of cases, including K. Shekhar v. Indiramma & others, (2002) 3 SCC 586, it is stated that even in panel, one does not acquire any indefeasible right to be appointed against the future vacancies.
Apex Court in Union of India v. Chajju Ram, (2003) 5 SCC 568 is relied upon.
learned counsel would contend that a wrong decision in favour of some would not entitle others to claim similar relief, as ruled by the Apex Court in State of Bihar v. Kameshwar Prasad, (2000) 9 SCC 94.
To fill up the vacancies is the prerogative of the Government and one has no indivisible right on appointment but appointment on an equally settled principle is that it is only on justifiable reasons that Government can keep the post vacant, as has been ruled in Batiarani Gramiya Bank v. Pullab Kumar & others, 2004 SCC (L&S) 715.
Mere announcement of vacancy does not give an indivisible right to claim that the same shall be filled up but non-filling the vacancies for a long time, an adherence to strict time schedule is the dicta ruled by the Apex Court in Malik Mazhar Sultan & another v. U.P. Public Service Commission & others[1996] INSC 611; , 2006 (4) SCALE 1. No doubt, any vacancy left over from previous selection automatically is included in subsequent selection, as ruled in Madan Mohan Sharma v. State of Rajasthan, (2008) 3 SCC 724 and no interference is permissible by the Government.
Equity may not be considered a legal ground as part of law but when law is to be applied, one of the factors of consideration would be equity. Applicant, who continuously worked from 1985 till 1994 after following due selection process, non-appointment on regular basis without any justifiable grounds, implies an act of mala fide, which as per the Constitution Bench decision in Shankarsan Dash v. Union of India, [1991] INSC 121; (1991) 3 SCC 47 cannot be countenanced in law.
As ruled by the Apex Court in Union of India & another v. Kunisetty Satyanarayana, (2007) 2 SCC (L&S) 304 that the charge sheet in a judicial review could be interfered with at an interlocutory stage if issued without jurisdiction or contrary to law.
Thirdly, it is stated that decisions in Dev Dutt v. Union of India, 2008 (7) SCALE 403 and K.M. Mishra v. Central Bank of India & others, (2008) 9 SCC 120 are per incuriam to each other and as there is no finality arrived at by the Apex Court by a dicta in Full Bench on referral, the decision in K.M. Mishras case (supra) would hold the field.
Recently, the Constitution Bench of Apex Court in Abhijit Ghosh Dastidar v. Union of India & others (Civil Appeal No.6227/2008) decided on 22.10.2008 has relied upon the decision in Dev Dutts case (supra) and held as follows:-
4) It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
5) Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules.
6) The appeal is allowed to the above extent. No costs.
Full Bench decision of this Tribunal B.P. Singh v. Union of India (OA-2621/2006) decided on 4.7.2008
As such, on the face of record, we do not find any error apparent in our order. RA is accordingly dismissed, in circulation, in the light of decision of Apex Court in State of West Bengal v. Kamal Sen Gupta, 2008 (9) SCALE 509.
In the above view of the matter, in appeal when several infirmities are pointed, non-recording of reasons and consideration thereof makes the order passed by the appellate authority illegal, as ruled by the Apex Court in State of Uttaranchal & others v. Kharak Singh, (2008) 8 SCC 236.
The Apex Court in Promotee Telecom Engineers Forum & others v. D.S. Mathur, Secretary, Department of Telecommunications, 2008 (4) SCALE 815 ruled that when persons are similarly situated, they cannot be deprived of the benefits.
Central Bank of India Limited v. Prakash Chand Jain, [1968] INSC 198; AIR 1969 SC 983
High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil & another, 2000 SCC (L&S) 144
. In legal parlance, as ruled by the Apex Court in Bhikhubhai Vithlabhai Patel & others v. State of Gujrat & another[1996] INSC 480; , 2008 (4) SCALE 278, consideration connotes to think over on all relevant aspects of the matter, including defence contentions.
The disciplinary authority when acts the exercise should be fair and bonafide and discretion be exercised judiciously, as ruled by the Apex Court in Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176. It is the duty of the disciplinary authority to record reasons, as ruled in Divl. Forest Officer, Kothagudem & others v. Madhusudhan Rao, (2008) 3 SCC 469.
Narpat Singh v. Rajasthan Financial Corporation, 2007 (11) SCALE 458, the Apex Court has held that a non-speaking order passed by the disciplinary authority is an illegality.
Binapanikar Chowdhury v. Satyabrata Basu & another, (2006) 10 SCC 442 whereby an executor is barred to assert right under the will or from establishing any right under the will not be probated on letter of Administration.
D.S. Nakara v. Union of India, (1983) 1 SCC 304 :
10. The scope, content and meaning of Art. 14 of the Constitution has been the subject matter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to recapitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (AIR 1978 SC 597) from which the following observation may be extracted:
"........what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all- embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits...... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence."
11. The decisions clearly lay down that though Art. 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question. (See Ram Krishna Dalmia v. S. R. Tendolkar, [1958] INSC 30; 1959 SCR 279 at P. 296: [1958] INSC 30; (AIR 1958 SC 538 at p. 547)). The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be nexus i.e. causal connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of this Court that Art .14 condemns discrimination not only by a substanstive law but also by a law of procedure.
12. After an exhaustive review of almost all decisions bearing on the question of Art. 14, this Court speaking through Chandrachud, C. J. in Re. Special Courts Bill, (1979) 2 SCR 476 at p. 534: (AIR 1979 SC 478 at P. 509) restated the settled propositions which emerged from the judgments of this Court undoubtedly in so far as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are :
"3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
5. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise, even a degree of evil, but the classification should never be arbitrary, artificial or evasive.
6. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act."
13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case (AIR 1978 SC 597) in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in E. P. Royappa v. State of Tamil Nadu, [1973] INSC 214; (1974) 2 SCR 348: (AIR 1974 SC 555) it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination. This Court further observed as under :
"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a 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 and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
14. Justice Iyer has in his inimitable style dissected Article 14 as under :
"The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errants of 'executive excesses', if we may use current cliche, can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; Be you ever so high, the law is above you." ((1978) 2 SCR 621 at p. 728: AIR 1978 SC 597 at p. 661). Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sahravardi[1980] INSC 219; , (1981) 2 SCR 79 : [1980] INSC 219; (AIR 1981 SC 487) held that 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. The Court made it explicit that 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 Article 14. After a review of large number of decisions bearing on the subject, in Air India etc. v. Nargesh Meerza[1981] INSC 152; , (1982) 1 SCR 438 : [1981] INSC 152; (AIR 1981 SC 1829) the Court formulated propositions emerging from an analysis and examination of earlier decisions. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis.
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of the doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising. the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlates it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India, [1979] INSC 111; (1979) 3 SCR 1014 at p. 1034 : [1979] INSC 111; (AIR 1979 SC 1628 at pp. 1637-38) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
Tejshree Ghag & others v. Prakash Parashuram Patil & others, 2007 (2) SCC (L&S) 452 ruled that loss of pay has a civil consequence and requires audi alteram partem.
25. Moreover, in Shekhar Ghosh v. Union of India & another, 2007 (1) SCC (L&S) 247, an opportunity to show cause on recovery has been obligated upon the respondents. Having not done so, when it is incumbent on them, the recovery effected from the gratuity of the applicant is nullity in law.
As held by the Apex Court in N.V. Subba Rao v. Corporation Bank & others, 2006 (13) SCALE 287 in case of dismissal, suspension period has to be treated as qualifying service for the purpose of pension.
Automobile Association Upper India (M/s.) v. The P.O. Labour Court II & another, 2006 VI AD (Delhi) 180, it is stated that once the burden is discharged by the respondents, it shifts to the applicant and non-discharging of this the guilt against the applicant has been proved.
Mathura Prasad v. Union of India & others, AIR 2007 SC 381 ruled that taking livelihood of a person without following due procedure of law cannot be sustained in law.
the Apex Court in Hardwari Lal v. State of U.P. & others, 2000 (1) ATJ (SC) 244 and in Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227 ruled that any document introduced during the course of inquiry cannot be proved legally unless the maker of the document is summoned and afforded an opportunity for being cross examined by the delinquent. Not doing so has certainly prejudice the applicant in his defence, which vitiates the inquiry.
In T. Kaliamurthi & another v. Five Gori Thaikal Wakf & others, 2008 (11) SCALE 52, the Apex Court on retrospectivity held that no statute has to be operated retrospectively unless provided for.
Devinder Singh & others v. State of Punjab & others, 2007 (12) SCALE 496. Administrative instructions issued on 17.11.1998 found basis of fixation of pay of the applicant, which include reckoning of EOL without medical for grant of higher grades. The subsequent decision in supercession of the earlier order would not be acted retrospectively as ruled by the Apex Court in Sonia v. Oriental India Corporation Limited & others, (2007) 10 SCC 627.
D. Ganesh Rao Patnaik & others v. State of Jharkhand & others, 2005 SCC (L&S) 1171.
Medical reimbursement
Honble Shri Shanker Raju, Member (J)
In Veena Bhatia v. Chairman & Secretary, New Delhi & others (TA-606/2009) decided on 2.4.2009
Also in Jai Narayan Sharma v. Union of India through Secretary, Ministry of Agriculture Krishi Bhawan, New Delhi-1 & others (OA-377/2008) decided on 17.4.2009, the Tribunal has granted full medical reimbursement to the applicant.
the Apex Court in U.P. Gram Panchayat Adhikari Sangh & others v. Daya Ram Saroi & others, 2007 (1) SCC (L&S) 773 ruled that part time employees are not entitled for regularization.
5. As a quasi judicial authority when an appellate authority acts, it is mandated to pass a reasoned order, as ruled by the Apex Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney & others[1996] INSC 562; , 2009 (4) SCALE 169.
Recently, the Apex Court while confronting with such an illegality in Roop Singh Negi v. Punjab National Bank & others[1990] INSC 57; , 2009 (1) SCALE 284 ruled that non-examination of witnesses and bringing the documents without calling the maker, these statements cannot be made admissible.
State of U.P. & another v. Dinkar Sinha, 2008 (1) SCC (L&S) 38. When the statutory rules framed under proviso to Article 309 of the Constitution do not provide for determination of seniority, the administrative instructions issued for want of rules shall validly and legally apply the seniority as ruled in M. Srinivasa Prasad & others v. The Comptroller and Auditor General of India & others, 2007 (5) SCALE 173.
14. It is also trite law that when a clarification is issued to some administrative instructions, it would relate back and be effective from the retrospective date, as if the part of original instructions as ruled in S.S. Grewal v. State of Punjab & others, 1993 SCC (L&S) 1098 and S.B. Bhattacharjee v. S.D. Majumdar & others, __________________________________.
15. With the above position of law clear before us, as regards the question of seniority of direct recruits and promotees, the trite law is that the promotion cannot be given effect to from the date of accrual of vacancy or the panel year but from the date it has been given effect to on joining of a person, as ruled in Nirmal Chandra Sinha v. Union of India & others, 2009 (1) SCC (L&S) 671. In the matter of seniority, as ruled in Nani Shas case and Dinesh Kumar Sharmas case (supra) that a person, who was not even borne in the cadre, he cannot be accorded seniority on a legal fiction and on an implication that he had worked on the promoted post when he was still to join and assume the charge of the post.
16. The Apex Court in B.S. Mathur & another v. Union of India & others, 2009 (1) SCC (L&S) 1 held that seniority between the direct recruits and promotees has to be operated as per OM of 3.7.1986, which has been further clarified vide OM dated 3.3.2008 laying down the following proposition:-
Nani Sha & others v. State of Arunachal Pradesh & others, 2007 (7) SCALE 521
Union of India & others v. Mohd. Ramzaan Khan, JT 1990 (4) SC 456 has ruled that prior to 1.11.1990, non-supply of the inquiry report would not vitiate the inquiry. The penalty imposed upon the applicant on 3.12.1988 is not prior to the cut-off date. As such, non-supply of the inquiry report would not vitiate the inquiry. However, it is trite law that when civil consequences ensue upon the government servant, a prior reasonable opportunity is a mandate, which is in consonance with the principle of audi alteram partem.
16. As ruled by the Apex Court in Union of India & another v. S.C. Parashar, 2006 AIR (SCW) 1068 that combining both minor and major penalty simultaneously in an order is not legally tenable
DR. V.L. CHANDRA AND OTHERS v. ALL INDIA INSTITUTE OF MEDICAL SCIENCES AND OTHERS, 1990-AIR(SC)-0-1670 1990-SCC-3-38
Amitabh Mukerjee v. State of Rajasthan, 1995 (1) SLR 575.
K.J. Gaidane v. State of Maharasthra, 1986 (1) SLR 763.
K.S. Kotahandaraman v. Regional Director, 1989 (6) SLR 416.
J.K. Varshneya & others v. Union of India & others, 1989 (1) ATR 215.
S. Venkata Ramaiah v. Govt. of Andhra Pradesh, 1988 (5) SLR 294.
Olga Tellis & others v. Bombay Municipal corporation and others[1985] INSC 155; , AIR 1986 SC 180,
Francis Coralie Mullin v. Administrator, Union Territory of Delhi & others[1981] INSC 12; , 1981 SCC (Cri) 212; and
Delhi Transport Corporation v. DTC Mazdoor Congress & others[1991] INSC 145; , AIR 1991 SC 101
12. As ruled by the Apex Court in Ramesh Chandra Sankla & others v. Vikram Cement & others, (2009) 1 SCC (L&S) 706, constructive res judicata would come into being and would have application if in the earlier proceedings, an issue raised in the subsequent proceedings has been discussed on merits and adjudicated and attained finality between the parties. As in the instant case, selection for the post of Head Regional Centre was not adjudicated earlier by the Tribunal on this issue, which is now being taken in the present proceedings, the OA is not barred by the principle of constructive res judicata. Hence, the objection stands overruled.
2. It is trite law that if a person appears in a faulty selection process, he is estopped from challenging or questioning it and is bound by the principle of waiver, acquiescence and estoppel, as ruled by Apex Court in Amlan Jyoti Barooah v. State of Assam & others, (2009) 1 SCC (L&S) 627. Also held by the Apex Court in Union of India & others v. Bikash Kuanar (2006) 8 SCC 192 that when a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias.
Ashok Kumar Sonkar v. Union of India & others, (2007) 2 SCC (L&S) 19 while referring to 3-Judge Bench decision in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, on a reference, following has been observed:
"(1) Whether the view taken by the majority (Honble Dr Thommen and V. Ramaswami, JJ.) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?"
14. It was held :
"So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.
15. The said decision is, therefore, an authority for the proposition that in absence of any cut-off date specified in the advertisement or in the rules, the last date for filing of an application shall be considered as such.
16. The Apex Court in Shankar K. Mandal & others v. State of Bihar & others, (2003) 9 SCC 519 has that if there is no cut-off date appointed by the rules, then such date shall be appointed for the purpose in the advertisement calling for the applications and if there is no such appointed date, then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
17. In State of T.N. v. Seshachalam, 2008 (1) SCC (L&S) 475, the Apex Court ruled that merely because a cut-off date has been fixed per se cannot be said to be arbitrary, as some date is required to be fixed for that purpose. Though the cut-off date when does not pass the twin test of Article 14 of the Constitution of India, has been held to be arbitrary in the light of Constitution Bench decision of Apex Court in D.S. Nakara & others v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145. However, in a subsequent decision in K.S. Krishnaswamy etc. v. Union of India & another, (2006) 13 SCC 215, the decision in D.S. Nakaras case (supra) was not found to be applicable.
18. If one has regard to the above, when inequality found in treatment, though merely because a cut-off date is prejudicial to a person, as if one is falling on other side of the cut-off date would not per se declare as arbitrary.
19. In Council of Scientific & Industrial Research & others v. Ramesh Chandra Agrawal & another, 2009 (1) SCC (L&S) 547 on fixation of cut-off date and examination in judicial review, the Apex Court ruled as under:-
29. A `State' is entitled to fix a cut off date. Such a decision can be struck down only when it is arbitrary. Its invalidation may also depend upon the question as to whether it has a rational nexus with the object sought to be achieved. 2.5.1997 was the date fixed as the cut off date in terms of the scheme. The reason assigned therefor was that this was the date when this Court directed the appellants to consider framing of a regularization scheme. They could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr. Patwalia, by choosing 2.5.1997 as the cut off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary.
30. The High Court, however, proceeded on the basis that the cut off date should have been the date of issuance of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The court's power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cut off date.
31. The scheme was a one-time measure. The number of posts was not confined to the posts which have been sanctioned. The validity of the scheme has been challenged as unrealistic, illusive, arbitrary or unworkable. We may at this juncture notice that whereas the Tribunal directed framing of a scheme, this Court directed the appellants to consider the same.
32. Cut off date has been fixed for those who are eligible as per the criteria laid down by the scheme. The service rules were framed in terms of the bye-laws of the society. It would bear repetition to state that the Appellant 1 is not a statutory authority. It is a research oriented-organization. It knows its needs. The research fellows and research associates because of their involvement in the research work are to get priority in their appointments. Particular projects whether funded by the Ministry concerned or others would depend upon the nature thereof. It, by a judicial fiat, could not have been made a continuous scheme.
33. Indisputably, a policy decision is not beyond the pale of judicial review. But, the court must invalidate a policy on some legal principles. It can do so, inter alia, on the premise that it is wholly irrational and not otherwise. The contention of the respondents that only two chances are granted for consideration of the candidature of the employees for the purpose of regularization is, in our opinion, misconceived. The scheme being a one-time measure, even one opportunity could have been granted.
Management of Coimbatore District Central Cooperative Bank v. Secretary, Coimbatore District Central Cooperative Bank Employees Association & another, 2007 (6) SCALE 45, we find that inquiry conducted against the applicant on de novo basis is certainly against the law and no finding of grave misconduct recorded in the departmental inquiry as well as his service of more than 35 years are positive factors in his favour, whereas his remaining absent and his refusal to the directions of Ministry of External Affairs to come back are the factors against him. We cannot also forego that right to pension is a fundamental right guaranteed to a government servant.
As ruled by the Apex Court in Prasad Nath Singh v. State of Bihar, 2009 (6) SCALE 157 that a recovery from retired employee on wrong payment is not justifiable. The aforesaid has been reiterated by the Apex Court in Col. (Retd.) B.J. Akkara v. The Govt. of India & others, Transfer Case (Civil) No.72/2004 decided on 10.10.2006 holding that the recovery cannot be effected from a retiree on excess payment on account of wrong interpretation / understanding of Government. However, it is also held that any attempt to recover wrong excess payment may cause hardship to the retiree.
2. As held by the Apex Court in Subha B. Nair & others v. State of Kerala & others, 2008 (9) SCALE 16, the decision of the Government not to fill a vacancy cannot be interfered with. However, in the present admittedly on RTI it has been informed to the applicant that 23 posts of Craft Instructors under promotional quota are lying vacant from December 2005 to April 2007.
In the above view of the matter, on carefully considering the rival contentions of the parties, Apex Court in Arjun singh Rathore & others v. B.N. Chaturvedi & others, 2008 (2) SLJ SC 230 has clearly ruled that the rules applicable as and when vacancy occurs are to hold the field and not the un-amended rules.
12. The above case has also been considered in Union of India & others v. Sangram Keshari Nayak, (2007) 2 SCC (L&S) 587 where paragraph 6 of the circular dated 21.1.1993, which is in pari materia of DOPT OM of 1992 as to the sealed cover, taking note of decision of Apex Court in Union of India v. R.S. Sharma, (2000) 4 SCC 394, it has been held that when the charge sheet has not been issued resort to the sealed cover is not in consonance with law.
The Apex Court in General Manager, Uco Bank & another v. M. Venuranganath, 2007 (14) SCALE 306 has ruled that on acquittal, benefit of doubt is given for all purposes, including back-wages.
2. Learned counsel for applicant relies upon the decision of Apex Court in Tarsem Singh v. State of Punjab & others, (2006) 13 SCC 581 to state that when the grounds and subjective satisfaction with the inquiry has not been reasonably practicable to be held if not brought on record or demonstrated, the order passed cannot be sustained in law. Also assailed is an order passed by the coordinate Bench of this Tribunal in Gaurav v. Govt. of NCT of NCT & others, (OA-819/2007) decided on 19.11.2007 whereby relying upon the catena of decisions, the dispensation of inquiry has been found not in violation of Constitution of India.
6. The Apex Court in Chief Security Officer & others v. Singasan Rabi Das, [1990] INSC 378; (1991) SCC 1 729 quashed the order of punishment, as it was passed on surmises and conjectures.
Union of India v. Tulsi Ram Patel, [1985] INSC 156; (1985) 3 SCC 398
In the matter of equal pay for equal work, if there is no distinct feature, non-application would be against the law, as ruled by the Apex Court in Union of India v. Dineshan K.K., AIR 2008 SC 1026. Also held by the Division Bench of High Court in Union of India & others v. Mohinder Singh & others, (2008) 1 SLJ (HC) 131 that similarly placed employees should get similar treatment in the matter of pay. Recently the Apex Court in State of Kerala v. B. Renjith Kumar & others, 2008 (9) SCALE 557 ruled that equal pay for equal work is to be applied when identical duties are performed.
As ruled by the Apex Court in Mohd. Ahmed v. Nizam Sugar Factory & others, 2005 SCC (L&S) 62 that on wrongful denial of promotion, arrears are to be given. Moreover, the Apex Court in Gopi Chand Vishnoi v. State of U.P. & another, (2006) 9 SCC 694 ruled that in case of non-promotion on post-retirement, retrospective promotion with benefits is a fundamental right of a government servant, which has to be given to him.
12. The Apex Court in Roop Singh Negi v. Punjab National Bank & others[1990] INSC 57; , 2009 (1) SCALE 284 has ruled that the disciplinary and appellate authorities are bound to pass speaking and reasoned orders in the context of the submissions made by the delinquent, which should be passed on legal and admissible evidence.
As a trite law, one who participates in the selection is estopped from challenging it, as ruled in Amalan Jyoti Barooah v. State of Assam & others, 2009 (1) SCC (L&S) 627. Insofar as short-listing criteria is concerned, the Apex Court in B. Ramakichenins case (supra) ruled that matter of short listing can be validly adopted by the Selection Committee even if there is no rule providing short listing, nor any mention in the advertisement calling of the application, unless it is arbitrary or mala fide. It is also held in this case that a criteria once notified must have to be adhered to.
Apex Court in Tridip Kumar Dingal & others v. State of West Bengal and others, 2009 (2) SCC (L&S) 119 ruled that for the purposes of elimination and short listing of huge number of candidates, the criteria adopted is bonafide and reasonable.
In Amalan Jyoti Barooahs case (supra), the Apex Court clearly ruled that within the power of Selection Committee, power to short list and the criteria adopted cannot be subject to judicial review, if it is reasonable and not arbitrary.
Apex Court in Andhra Pradesh Public Service Commission v. Baloji Badhavath & others, 2009 (1) SCC (L&S) 999 ruled that State having limited resources cannot allow any number of candidates to appear in the examination and is bound to devise some procedure to short list the candidates.
In the above view of the matter, as the Apex Court ruled in President, Panchayat Union Council v. P K Muthusamy & others[1988] INSC 12; , 2009 (1) SCALE 107 that judiciary should not ordinarily encroach the domain of the Executive, these OAs lack merit and are accordingly dismissed.
The State of West Bengal & others v. Kamal Sengupta & another, 2008 (9) SCALE 504 wherein guidelines have been issued for the Tribunal under Section 22 (3) (f) of Administrative Tribunals Act, 1985 how to deal with review applications.
functus officio
8. The Apex Court in State of Kerala & another v. E.K. Bhaskaran Pillai, 2008 (1) SLJ SC 164 has ruled that in grant of monetary benefits on notional promotion, no hard and fast rule can be evolved. However, it is held in Mohd. Ahmed v. Nizam Sugar Factory & others, 2005 SCC (L&S) 62 that on wrongful denial of promotion, arrears are necessarily to be allowed.
2. In pursuance of the decision of the Apex Court in Vishaka & others v. State of Rajasthan & others, (1997) 6 SCC 241 in the conspectus of human rights, guidelines have been formulated for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. At the out set, it is trite that on non-production of the departmental records by the Government, an adverse inference has to be drawn, as ruled by the Apex Court in Union of India & another v. Ex Major Sudershan Gupta, 2009 (2) SCC (L&S) 197.
22. The Apex Court recently in Harminder Kaur & others v. Union of India & others, 2009 (7) SCALE 204 by relying upon three Judge Bench of the Apex Court in Official Liquidator v. Dayanand & others, (2008) 10 SCC 1 ruled that a temporary appointee has to compete on age relaxation for being appointed to the regular post as per the recruitment rules.
decision of the Apex Court in U.P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj & others, 2007 (1) SCC (L&S) 773, it is argued that permanent status cannot be conferred upon part time employees.
In judicial review on a lis when presented before us sometimes without going into the intricacies of rules and law, we are equity based. Compassionate relief does not attract the technicalities of law. Grant of pension to a government servant and in turn on his death, grant of family pension is a fundamental right guaranteed to the widow. If the husband dies and the widow is not getting the due family pension as per rules, it is always open for her to institute a case before us on a cause of action, which has been approved by the Five Judge Bench of this Tribunal in Mrs. Chandra Kala Pradhan v. Union of India & others, 1997-2001 A.T. Full Bench Judgments 410.
Limitation is not an impediment for preventing miscarriage of justice. It is only a technicality, which forbids a stale cause of action to be agitated before the judicial fora. No doubt one who sleeps over his rights looses a remedy and on this principle the limitation is an important facet in dispensing with justice and deciding the cases on examination of the cause of action in judicial review.
The Apex Court in Union of India & others v. Shantiranjan Sarkar, (2009) 3 SCC 90 ruled that in a case before the Tribunal, the Union of India cannot take advantage of its own wrong and on equity, relief has to be accorded to the parties. In another case in Basanti Prasad v. The Chairman, Bihar School Examination Board & others, 2009 (8) SCALE 401, where a termination of a teacher, who died, was reopened after 20 years and on his acquittal what has been granted is the pension to the widow.
If reasonable explanation is tendered in a writ jurisdiction, it is imperative upon the Bench to hear the case on merits, as ruled by the Apex Court in Ravindra Nath v. State Bank of India & others[1984] INSC 23; , 2009 (1) SCALE 130.
22. While considering the issue of limitation, the Apex Court in Ratansingh v. Vijaysingh & others, (2001) 1 SCC 469 ruled that a liberal and broad based construction is necessary. It is also held by the Apex Court in Madras Port Trust v. Hymanshu International By its Proprietor V. Venkatadri (Dead) By L.Rs., (1979) 4 SCC 176 that the Government should avoid technical pleas to defeat the substantial cause of justice. From time to time, the issue of limitation has been settled by the Apex Court but never in the history of a case where a bonafide claim by the widow for grant of correct family pension has been turned down on this technical ground of limitation, as ruled in Union of India & others v. Tarsem Singh, (2008) 8 SCC 648. A recurring cause of action has been well explained and non-payment of correct family pension on account of non-adding of qualifying service under Rule 30 of Pension Rules is a recurring cause of action, which is continuing and still available to the applicant to raise her grievance before us. In the above view of the matter, we overrule the objection with regard to limitation raised by respondents counsel.
Though a selected candidate has no indefeasible right for appointment and one, who attempts forgery, no sympathy could be shown to him, yet when the appointment is denied wrongfully, it has to be interfered with as ruled by the Apex Court in Uttar Pradesh Public Service Commission v. Satyanarayan Sheohare & another, 2009 (2) SCC (L&S) 265.
Official Liquidator v. Dayanand & others, (2008) 10 SCC 1. However, it is the principle of equality in pay would apply where duties are identical, as ruled by the Apex Court in Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & others, (2007) 6 SCC 9. It is also held by the Apex Court in Union of India & others v. Dineshan K.K., AIR 2008 SC 1026 that for want of any distinct feature, the doctrine has to be applied.
9. The Division Bench of High Court of Delhi in Union of India & others v. Mohinder Singh & others, 2008 (1) SLJ (HC) 131 followed the aforesaid dicta.
10. Recently, the Apex Court in State of Kerala v. B. Renjith Kumar & others, 2008 (9) SCALE 557 held that the principle of equal pay for equal work has assumed the status of a fundamental right. In Union of India & others v. Satya Brata Chowdhury & others[1985] INSC 3; , 2009 (1) SCALE 101, the Apex Court ruled that if higher pay scales are given to others, it cannot be denied to similarly circumstanced. A policy decision when bestows upon a category or class of employees a benefit, it would be irrational if it is denied to the counterparts and is interferable in judicial review, as ruled in Council of Scientific and Industrial Research & others v. Ramesh Chandra Agrawal & another, 2009 (1) SCC (L&S) 547.
Recently, the Apex Court in Mohd. Abdul Kadir & another v. Director General of Police, Assam & others, 2009 (2) SCC (L&S) 227 in the matter of laying down policy ruled that Courts should avoid laying down but a public issue raised should get attention. As ruled by the Apex Court in a Constitution Bench decision of D.S. Nakara & others v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145 that in upholding the constitutional mandate of Article 14 of the Constitution, financial constraints are not to be an impediment. Like-wise the Bombay High Court in Union of India & others v. Atomic Energy Workers & Staff Union & others, (2005) 1 ATJ HC 92, it has been held that financial constraint cannot be a defence to parity of scales. Our view is further reiterated by the Apex Court in State of Punjab & another v. Surjit Singh & others, 2009 (11) SCALE 149.
12. Another aspect of the matter is the alleged misconduct of coming late to office by six minutes cannot be treated as a trivial misconduct, for which holding of an inquiry and imposing a major punishment, certainly is unwarranted and unreasonable in the circumstances. An error of judgment or simple negligence is also not a misconduct, as ruled by the Apex Court in Inspector Prem Chand v. Govt. of NCT of Delhi, 2007 (5) SCALE 421.
12. In the doctrine of precedent and stare decisis, the Apex Court in MMMD Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority & another, 2005 SCC (L&S) 198 ruled that non-speaking order of the High Court does not constitute a precedent. Though the reasons have been recorded by reproducing the rules and Note, yet the decision of High Court is binding on subordinate Courts and has to be carried out, as ruled by the Apex Court in Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 753.
13. As ruled by the Apex Court in Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur, (2007) 13 SCC 807 that when a decision of coordinate Bench is not deliberated the decision of another coordinate Bench, it cannot take a contra view and is bound for want of disagreement as rule of precedent in an important aspect of legal certainty in the rule of law, as ruled in Honda Siel Power Products Ltd. V. Commissioner of Income Tax, Delhi, (2007) 12 SCC 596.
14. While on a disposal of a case by the High Court without realizing the factual position and without relying on an earlier decision, this approach would be casual and the decision would be per incuriam, as ruled in Municipal Corporation Faridabad v. Durga Prasad, (2008) 5 SCC 171 by the Apex Court.
15. Insofar as the ratio decidendi of a case is concerned, an observation made by superior Court is not binding. Such a decision should be arrived at upon entering into the merits of the case, as ruled in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & another, (2008) 11 SCC 753.
16. The Apex Court in U.P. Gram Panchayat Adhikari Sangh & others v. Dayal Ram Saroj & others, (2007) 2 SCC 138 and also in Maharasthra University of Health Sciences represented by Deputy Registrar v. Paryani Mukesh Jawaharlal & others, (2007) 10 SCC 201 ruled that Judicial discipline is self discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a co-ordinate Bench of the same High Court is brought to the notice of the Bench, it is respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then often is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity. The aforesaid ratio also is an authority to the fact that if a judgment is not brought into notice and the decision is taken by a coordinate Bench ignoring the same it would be per incuriam decision. The Apex Court at a great length laid emphasis on the doctrine of precedent in Official Liquidator v. Dayanand & others, (2009) 1 SCC (L&S) 943 with the following observations:
17. In K.G. Arumugham & others v. K.A. Chinnappan & others, (2005) 2 SCC 793, the Apex Court held that High Court cannot sit in appeal in an earlier order passed by it in the same matter, which has already attained finality and set aside that order. The doctrine of precedent is well explained by observing that a coordinate Bench of the High Court is bound by another coordinate Bench where the order has attained finality.
14. Moreover, one cannot be deprived of a reasonable opportunity to cross examine the witnesses. A document when made part of the departmental proceedings, unless it is in clear terms admitted as a guilt by the delinquent official, it has to be proved on a methodology approved in law. This methodology has been laid down in S.B. Rameshs case (supra) as well as in Hardwari Lal v. State of Uttar Pradesh, (1999) 8 SCC 582 wherein, in categorical terms, it is ruled that a document cannot be proved without examination of its maker.
10. Insofar as the recovery is concerned, which has now been recovered from the applicant, we are fortified with our view as ruled by the Apex court in Paras Nath Singh v. State of Bihar & others, 2009 (2) SCC (L&S) 198 wherein it is ruled that even if there is wrong promotion, which is not attributable to the concerned employee, no recovery could be effected.
Recently, the Apex Court, in an identical situation, in Shanti Sports Club & another v. Union of India & others, 2009 (11) SCALE 731 held that Article 14 of the Constitution is a positive concept and negativity has not to be exercised to perpetuate illegality.
It is trite in law that the Government is entitled to rectify any of the mistake committed by them but only after following the due process of law, as ruled by the Apex Court in Union of India & another v. Narendra Singh, 2008 (1) SCC (L&S) 547.
The Apex Court in Union of India & others v. Prakash Kumar Tandon, (2009) 2 SCC 541 examination of witnesses for defence clearly ruled that an application for summoning the witnesses should be considered by the inquiry officer and if it is turned down, reasons are to be recorded.
Trilok Nath v. Union of India & others, 1967 SLR SC 759.
19. Delay defeats justice and with the passage of time, i.e., almost 17 years, now asking the applicant to comment upon the inquiry where on fading of human memory and non-availability of the records, this delay has certainly prejudiced the applicant, as ruled by the Apex Court in Agyakar Singh v. Punjab State Electricity Board and others, 2009 (1) SCT 709 DB (P&H) as well as in Govt. of Andhra Pradesh & others v. V Appala Swamy, (2009) 1 SCC (L&S) 440. As such, the inquiry as well as the pursuant orders is vitiated.
recruitment rules. A candidate, subject to faulty selection process, cannot question it and is estopped in law, as ruled in Amlan Jyoti Borooah v. State of Assam, 2009 (1) SCC (L&S) 627. Further held by the Apex Court that if a selection is by the Board and assessment by an expert body, no interference is permissible without alleging malafides, as ruled in B.C. Mylarappa alias Dr. Chikka Mylarappa v. Dr. R. Venkatasubbaiah & others, 2009 (2) SCC (L&S) 148.
M/s. Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I & another, 2008 (3) AJW 847.
9. Insofar as the recovery is concerned, on wrong time bound promotion given in case of a retired government servant, recovery has not been found to be justifiable by the Apex Court in Paras Nath Singh v. State of Bihar & others, 2009 (6) SCALE 157.
10. Further an error detected not earlier but on a belated process, excess amount cannot be recovered as per the decision of the Apex Court in Syed Abdul Qadir & others v. State of Bihar & others, (2009) 1 SCC (L&S) 744. In the above view of the matter, re-fixation of pay of the applicant and accordingly, pension and pursuant recovery suffer from the vice of audi alteram partem and being contrary to the principles of natural justice, cannot be countenanced in law. As there is no distinction between a retired employee on attaining the age of or voluntarily retired person, when no fault is attributable to the applicant, recovery cannot be countenanced.
11. Insofar as promotion of the applicant is concerned, in para 15 of the writ petition, the contention raised is that promotion as Headmistress is to a post involving higher duties and responsibilities. The decision of Apex Court in State of Rajasthan v. Fateh Chand Soni, [1995] INSC 834; (1996) 1 SCC 562 clearly rules that promotion can be either to a higher pay scale or higher post. In such an event, when it is not controverted by the respondents that post of Headmistress assumes higher responsibilities, as compared to Assistant Teacher, the aforesaid fixation of the applicant on promotion was in accordance with rules.
Ghulam Rasool Lone v. State of J & K & another, 2009 (9) SCALE 644 and also in Shanti Sports Club & another v. Union of India & others, 2009 (11) SCALE 731.
dicta in Union of India through Govt. of Pondicherry & another v. V Ramakrishnan & others, 2005 (2) SC SLJ 495. Moreover, in the matter of recruitment rules till they are declared invalid or unconstitutional have applications as per the decision of Apex Court in Union of India & others v. S.K. Saigal & others, (2009) 1 SCC (L&S) 856.
At the outset what is binding under Article 141 of the Constitution of India is a decision of the Apex Court where question of law is directly raised and considered on decision, as ruled by the Apex Court in Tika Ram v. State of U.P., 2009 (12) SCALE 349.
Per incurriam decisions are those decisions, which are passed in ignorance of the decision of the coordinate Bench or without considering the statutory rules, as ruled in State of Bihar v. Kalika Kuer @ Kalika Singh & others, (2003) 5 SCC 448.
Per incurriam decisions are also those decisions, which are made by the High Court where relevant decisions of the Apex court are not considered and are also in ignoratium of a statute or other binding authority, as ruled in Mayuram Subramanian Srinivasan v. CBI, (2006) 5 SCC 752.
Under the doctrine of precedent, a decision is an authority that what it decides but it is not what can be logically deduced from it, as ruled in State of Haryana v. Ranbir Alias Rana, (2006) 5 SCC 167. What is binding by the Apex Court is a law declared, as ruled in Bombay Dyeing & MDF. Co. Ltd. v. Bombay Environmental Action Group & others, (2006) 3 SCC 434.
Under Articles 141 and 142 of the Constitution when a question of law is left open and mere directions given in a case without laying down principles of law do not constitute a precedent, as ruled in Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408.
In a Constitution Bench decision, the Apex Court in Confederation of Ex-servicemen Associations & others v. Union of India & others, (2006) 8 SCC 399 on a scheme framed by the Government to provide ex-servicemen the medical services on one time contribution, which were weighed in the context of financial constraints and limited means, held that free and full medical facilities is not a part of a fundamental right of ex-servicemen.
In plethora of decisions in State of Punjab & others v. Ram Lubhaya Bagga etc. etc., (1998) 4 SCC 117, K.P. Singh v. Union of India & others, (2002) SCC (L&S) 761, and State of Punjab & others v. Mohan Lal Jindal, (2002) SCC (L&S) 189, medical reimbursement to a government servant/pensioner has been approved.
In Suman Rakheja v. State of Haryana & another, (2004) 13 SCC 562 going to the extremist, the Apex Court in a case where in an emergent situation the treatment was taken on non-referral in an unapproved and un-recognized hospital, reimbursement 100% at AIIMS rates and 75% expenses over and above were allowed. However, as per the state policy, the medical reimbursement was restricted to the financial limits by the Apex Court in State of Karnataka & another v. Sri R Vivekananda Swamy[1995] INSC 653; , (2008) 6 SCALE 261.
3. In support of his case, learned counsel for applicant relies upon the decision of Apex Court in M.C.D. v. Veena & others (CA No.3045/1998) decided on 14.8.2001. As this decision being anterior in time, the latest decision of Apex Court in Union of India & another v. Dalbir Singh & others, 2009 (2) SCC (L&S) 316 wherein it has been clearly ruled that where there are separate lists for general and OBC categories candidates, even if an OBC candidate secures more marks than the general category candidate then no directions could be issued to consider them for appointment under general category, is binding on us and is to be followed under the doctrine of precedent under Article 14 of the Constitution of India.
7. Accordingly, the applicant is entitled not only for the release of pension and other retiral benefits but also a simple interest @ 9% p.a. on the date the amount is due till it is actually paid, as per the decision of Apex Court in A Sulekha v. N.A. Das & others, (2006) 13 SCC 399.
8. Proportionality of punishment is interfered only when the conscience of the Court is shocked. However, the interference is also permissible while examining the proportionality. The relevant factors have not been considered by the competent authority, as ruled in Praveen Bhatia v. Union of India & others, (2009) 4 SCC 225.
stare decisis
coram non judice
non-obstentae clause
Law on Subject
Union of India etc. etc. v. K.V. Jankiraman etc. etc.[1991] INSC 211; , (1991) 4 SCC 109,
Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485).
Hindustan Petroleum Corporation Ltd. v. Dairus Shapur Chenai & others, (2005) 7 SCC 627
Bhagwan Shukla vs. Union of India, 1994 (6) SCC 154,
State of Haryana vs. Ram Kumar Mann, 1997 (2) SC SLJ 257
Shri A.K. Sharma vs. Union of India, JT 1999(1)SC 113,
State of Bihar vs. Kameshwar Prashad Singh, 2001 (1) SC SLJ 76.
Chandreshwar Prasad Sinha vs. State of Bihar & Anr., 2002 SCC (L&S) 200,
Govind Prakash Verma v. Life Corporation of India & others, 2005 SCC (L&S) 590
Umesh Kumar Nagpal v. State of Haryana & others, JT 1994 (3) SC 525
Dr. Uma Aggarwal v. State of U.P. & another, 1999 (3) SCC 438
Secretary, State of Karnataka & others v. Umadevi & others[1996] INSC 638; , 2006 (4) SCALE 197, (2006) 4 SCC 1
Karnataka Power Corporation Ltd. & others v. K. Thargappar, SCALE 2006 (4) 56.
Shyam Babu Verma & others v. Union of India & others, 1994 SCC (L&S) 683.
U.P. Madhyamik Shiksha Parishad & others v. Raj Kumar Agnihotri, 2005 (2) SC SLJ 50,
Shyam Babu Verma v. Union of India, 1994 (2) SLJ SC
Sahib Ram v. State of Haryana, 1994 (5) SLR 753
Constitution Bench of the Apex Court in Mohinder Singh Gill v. Chief Election Commissioner, [1977] INSC 227; (1978) 1 SCC 405
High Court in Shakti Singh v. Union of India & others (CWP No.2368/2000) decided on 17.9.2002
Apex Court in Viveka Nand Sethi v. Chairman, J & K Bank Ltd. & others, 2005 SCC (L&S) 689, held that whenever medical leave is applied, it is necessary to produce the proper medical certificates, failing which it would remain as an unauthorized absence.
Apex Court in State of Maharasthra v. Rashid Babu Bhai, 2006 AIR SCW 162.
Indira Bhanu Gaur v. Committee, Management of M.M. Degree College & others, 2004 (1) SC SLJ 3 ruled that one, who does not avail an opportunity, cannot assail orders for violation of principles of natural justice.
Recently, the Apex Court in Union of India & others v. Ghulam Mohd. Bhat, 2006 (1) SC SLJ 32 upheld the punishment of removal on account of 315 days absence after the sanctioned leave.
Union of India v. J. Ahmed, [1979] INSC 64; 1979 (2) SCC 286, in the matter of misconduct observed that an act or omission or lack of efficiency or failure to attain highest standard of efficiency in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty and error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
Apex Court in State of U.P. & others v. Ramesh Chandra Mangalik, 2002 SCC (L&S) 413
Constitution Bench of the Apex Court in K. C. Sharma & others v. Union of India & others, 1998 (1) SLJ SC page 54 has held that those who are similarly circumstanced in the wake of interest of justice and to avoid multiplicity and to unnecessarily drag the parties to the Courts, are entitled for grant of the same benefits
Sanyunkta Arjuna v. Union of India & others, 2003 (1) ATJ 558.
State of Bihar & others v. Kameshwar Prasad Singh & another, 2001 (1) SLJ SC 76, and
Divisional Manager, Plantation Division, Andaman & Nicobar Islands v. Mannu Barrick & another, 2005 SCC (L&S) 200
H.D.Singh v. Reserve Bank of India & others, (1985) 4 SCC 201
Mineral Exploration Corporation Employees Union v. Mineral Exploration Corporation Limited & another, 2006 (7) SCALE 374
Workmen of American Express International Banking Corporation v. Management of American Express International Banking Corporation, (1985) 4 SCC 71
S.S. Mishra v. Central Board of Direct Taxes & others, 1994 (3) AISLJ 238 where it has been held that in the matter of ACR and adverse entries, which are without any supporting data, the same, even if it is advisory, cannot be recorded without following the procedure and unsupported entries without data cannot stay.
The decision of the Apex court in State of U.P. v. Yamuna Shanker Misra & another, (1997) 4 SCC 7 to substantiate his contention by stating that if one is not accorded an opportunity to improve upon in the form of memos, etc., any authority, which records the adverse remarks, is displayed callousness and non-application of mind.
The Apex Court in State of U.P. v. Narendra Nath Sinha, 2002 (1) ATJ SC 118 with a situation where though the reporting officer graded the reported officer as Good, Excellent but this has been toned down to Satisfactory by the reviewing authority, it was held that non-communication of a prior reasonable opportunity of the adverse remarks on disagreement is an infraction to the principles of natural justice.
Managing Director, ECIL v. B. Karunakar & others, 1993 SCC (L&S) 1184
Kuldeep Singh v. Commissioner of Police & others, JT 1998 (8) SC 603 in a Delhi Police case ruled that the Tribunal would not be precluded in a judicial review to interfere as if an appellate authority to re apprise the evidence or to substitute its own views but what is permissible for us in a judicial review of a departmental proceedings is to see whether the finding is perverse, based on no evidence or no misconduct. If the test of a common reasonable prudent man is not satisfied, the Tribunal would not only set aside the findings but the consequent orders as well.
Sher Bahadur v. Union of India & others, 2002 SCC (L&S) 1028 held that a mere statement with the evidence adduced is not sufficient to hold guilty.
Full Bench of this Tribunal in Ranvir Singh v. Govt. of NCT of Delhi & others (OA-340/2004)
Union of India & others v. H.C. Goyal, [1963] INSC 185; AIR 1964 SC 364. The Apex Court also in Sher Bahadur v. Union of India & others, 2002 SCC (L&S) 1028 held that a mere statement with the evidence adduced is not sufficient to hold guilty.
In Tata Engineering & Locomotive Co. Ltd. v. Jitendra Pd. Singh & another, 2002 SCC (L&S) 909, the Apex Court ruled that if the persons are found guilty of same incident in a separate proceeding, singling out one for punishment is a denial of justice.
The Apex Court in Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227 clearly ruled that failure of the respondents to put question under Rule 14 (18) of the Rules 1965 would be a serious infirmity in the procedure and it vitiates the inquiry as well as the consequent orders.
M.V. Bijlani v. Union of India & others, 2006 (3) SLR SC 105.
The Apex Court in Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227 clearly ruled that failure of the respondents to put question under Rule 14 (18) of the Rules 1965 would be a serious infirmity in the procedure and it vitiates the inquiry as well as the consequent orders.
the Apex Court in Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.Rs., (1979) 4 SCC 176 wherein technical pleas by the Government is ordered to be avoided.
R.C. Sharma v. Union of India & others, 2000 (4) SCC 394, the Apex Court has ruled that such a procedure where sealed cover is resorted to after the recommendation and before actual promotion is accorded to the government servant, is valid in law.
Union of India & others v. Dr. (Smt.) Sudha Salhan, 1998 (1) SC SLJ 353 wherein the issue was consideration by the DPC for promotion on 8.3.1989 but Committees proceedings were placed under sealed cover and subsequently the petitioner therein was placed under suspension on 16.4.1991 and the charge-sheet was issued on 8.5.1991.
the Apex Court in Narinder Mohan Arya v. United India Insurance Co. Ltd. & others, 2006 (3) SLR SC 92 defined with an observation that if there is non-application of mind, it cannot be gathered from recording of its ipsi dixit but it should be on with reference to the context that the contentions raised in the appeal are to be discussed and rebutted and thereafter a reasoned order has to be passed, still remains the order without application of mind and in violation of Rules 27 (2) of the Rules ibid
Union of India v. Kuldeep Singh, (2004) 2 SCC 590 with the following observations:
In its ordinary meaning, the word discretion signifies unrestrained exercise of choice or will; freedom to act according to ones own judgment; unrestrained exercise pf will; the liberty or power of acting without control other than ones own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of other. Discretion is the discern between right and wrong; and, therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rule of reasons and justice, not according to private opinion; according to law and not humor. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to have confined himself. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discrete.
In such an event, the latest decision of the Apex Court P.V. Mahadevan v. MD. T N Housing Board, 2005 SCC (L&S) 861 ruled that if there is no convincing explanation comes forth to explain the delay in a delayed action in issue of the charge sheet or even its completion, the government servant is certainly prejudiced in his defence
State of Madhya Pradesh v. Bani Singh & another, 1990 Supp SCC 738,
State of A.P. v N. Radhakrishnan, (1998) 4 SCC 154.
State of Punjab & others v. Chaman Lal Goyal, [1995] INSC 101; (1995) 2 SCC 570; and
State Bank of Patiala v. S.K. Sharma, [1996] INSC 465; (1996) 3 SCC 364.
S.N. Mukherjee v. Union of India 1991 SCC (L&S) 242
Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327
Yoginath D. Bagde v. State of Maharashtra & another, (1999) 7 SCC 739
G.M. Tank v. State of Gujarat & another, 2006 (3) SLJ SC 312
Dr. Duryodhan Sahu and others v. Jitendra Kumar Mishra & others, (1998) 7 SCC 273 CAT cannot entertain PIL.
Union of India & another vs. P.V. Hariharan & another, (1997) 3 SCC 568
South West Bengal State Transport v. Swapan Kumar Mitra, [1995] INSC 170; 2006 (2) SCALE 141
the Apex Court in Damoh Panna Sugar Rural Regional Bank & another v. Munna Lal Jainb, (2005) 10 SCC 84. Any decision of the administrative authorities would be irrational if it is passed in total defiance of logic, as has been held in State of NCT of Delhi & another v. Sanjeev Alias Bittoo, (2005) 5 SCC 181.
23. The Apex Court in Director (Marketing) Indian Oil Corporation Ltd. & another v. Santosh Kumar, 2006 (6) SCALE 358 in a case where disciplinary authority passed a mechanical order, which was reiterated by the appellate authority, passed the following observations:
11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh proposal to the Disciplinary Authority. The Disciplinary Authority shall consider the detailed representation made by the respondent and also consider the detailed report of the Enquiry Officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set-aside the direction issued by the High Court ordering re-instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs.
Mahavir Prasad v. State of U.P., [1970] INSC 85; AIR 1970 SC 1302 with the following decision:
Union of India & another v. Mohan Pal & Others (2002) 4 SCC 573.
Union of India v. Tarit Ranjan Das, 2004 SCC (L&S) 160, observed as under:
13. The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reasons contained therein whereby the original application was rejected. The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh order and rehearing of the matter to facilitate a change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with the review petition as if it was hearing an original application. This aspect has also not been noticed by the High Court.
Ram Chander v. Union of India & others, 1986 (2) SLJ 249 in a railway case laid stress on recording of reasons by the departmental authorities in the backdrop of a particular provision under the Railway Servants (Discipline & Appeal) Rules, 1968.
Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644
Randhir Singh vs. Union of India and others [1982] INSC 24; (1982) 1 SCC 618
Apex Court in B.C. Chaturvedi v. Union of India & others[1996] INSC 1022; , (1995) 6 SCC 749
R.S. Saini v. State of Punjab & others, (1999) 8 SCC 90.
Union of India v. J. Ahmed, [1979] INSC 64; 1979 (2) SCC 286.
Misconduct is an error of judgment as held by the Apex Court in Inspector, Prem Chand v. Govt. of N.C.T. of Delhi & others, 2007 (5) SCALE 421.
Hindustan Petroleum Corporation Limited v. Sarvesh Berry, (2005) 10 SCC 471.
Union of India & others v. Upendra Kumar, (1994) 3 SCC 357, Deputy Inspector General of Police v. K.S. Swaminathan, (1996) 11 SCC 498 and Chairman-um-M.D., T.N.C.S. Corporation Limited v. K. Meerabai, (2006) 2 SCC 255 to contend that in a judicial review the Courts are precluded from interfering in a disciplinary proceeding at an interlocutory stage and when the exceptions are not attracted, as the charge sheet neither contrary to law nor is there a case of misconduct, he prays for dismissal of the OA.
Ratan Chandra Sammanta & others v. Union of India others, JT 1993 (3) SC 419.
Madras Port Trust v. Hymanshu International by Its Proprietor V. Venkatadari (Died) by L.Rs., (1979) 4 SCC 176.
Apex Court in S.M. Munawalli v. State of Karnataka, (2002) 10 SCC 264 ruled that in the matter of pension a delay would not bar the substantial question of law.
Moreover, as held by the Apex Court in Apangshu Mohan Lodh v. State of Tripura & others, 2004 SCC (L&S) 10 that though the power of limitation is discretionary, yet it has to be liberally construed. In the light of above, we do not find that any law of limitation is attracted in the present case.
M/s. Mahabir Prasad Santosh Kumar v. State of U.P. & others[1970] INSC 85; , AIR 1970 SC 1302
M/s. Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal & others, 2007 (11) SCALE 374 ruled that when public authority acts as an administrative authority with oblique motive or on an extraneous or irrelevant considerations, the aforesaid exercise would not be an exercise in accordance with law.
In judicial review of an act of quasi-judicial authority, what is allowed to be interfered is the decision-making process. As held by the Apex Court in Damoh Panna Sugar Rural Regional Bank & another v. Munna Lal Jain, 2005 SCC (L&S) 567 that in the matter of proportionality, deficiency in decision-making process is enternainable on interference.
Suman Rakheja v. State of Haryana & another, (2004) 13 SCC 563
It is trite law that an appointment by fraud or forgery does not indefeasibly give a right to the concerned either to continue or to get any consequences on appointment. Article 311 of the Constitution or principles of natural justice have no applicability, as ruled by the Apex Court in Additional General Manager / Human Resource Bharat Heavy Electricals Ltd. v. Suresh Ramkrishna Burde, 2007 (7) SCALE 112 that appointment on a forged certificate would not entail reinstatement.
Also held by the Apex Court in State of Manipur & others v. Y. Token Singh & others, 2007 (3) SCALE 319 that a faulty appointment and its cancellation thereof, would not attract principles of natural justice. The decisions cited by the respondents have applicability in all fours to the case of the applicant.
Dadi Jagannadham v. Jammulu Ramulu, (2001) 7 SCC 71 held that when the intention of the legislature is clear in a rule framed under proviso to Article 309 of the Constitution, nothing can be added or subtracted by the Court and the intention of the legislature has to be gathered from the wording of the provision. In such an event, the safest way to interpret is to give the rule its literal and grammatical connotation in the form of interpretation.
Sanjay Singh & another v. U.P. Public Service Commission, Allahabad & another, (2007) 1 SCC (L&S) 870 that no words can be added and Court cannot make any deficiency in the recruitment rules.
Apex Court in Mohd. Masood Ahmad v. State of U.P. & others, 2007 (11) SCALE 271 and also in Prasar Bharati & others v. Amarjeet Singh & others, 2007 (2) SCC (L&S) 566. D.S. Nakara & others v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145 and such a policy decision is not only amenable to judicial review but is also liable to be set aside as per the policy
Delhi Development Authority, N.D., & another v. Joint Action Committee, Allottee of SFS Flats & others, 2007 (14) SCALE 507 as to judicial review of administrative law in a policy decision, the following observations have been made:-
59. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritties of the policies, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
60. Broadly, a policy decision is subject to judicial review on the following grounds:
if it is unconstitutional;
if it is de hors the provisions of the Act and the Regulations;
if the delegatee has acted beyond its power of delegation;
if the executive policy is contrary to the statutory of a larger policy.
A. Satyanarayana & others v. S. Purushotham & others, (2008) 2 SCC (L&S) 279 in the matter of right to be considered for promotion being treated as fundamental right under the Constitution of India, it implies promotional chances not to be foreclosed forever and its purpose is to remove stagnation and avoid frustration among the employees.
S.B. Bhattacharjee Vs. S.D. Majumdar & others, 2008 (1) SCC (L&S) 21 (2007) 10 SCC 513
In State of Punjab & others v. Chaman Lal Goyal, 1995 SCC (L&S) 541, a delay of more than 5 years had taken place in disciplinary proceedings and government servant was responsible of escape of prisoner involving of death of number of persons. This disciplinary proceeding and its delay was not found in the interest of administration but the delay would depend upon individuals case.
the Apex Court in Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176.
As per decision of Apex Court in Purnendu Mukhopadhyay & others v. V.K. Kapoor & another, 2007 (12) SCALE 549,
Tata Industries Limited & another v. Grasim Industries Limited, (2008) 10 SCC 187
Union of India & others v. Sangram Keshari Nayak, JT 2007 (6) SC 272
Punjab National Bank & others v. Shri Kunj Behari Misra, 1999 (1) SLJ 271 = JT 1998 (5) SC 548
the decision of the Apex Court in State Bank of Patiala & others v. S.K. Sharma, JT 1996 (3) 722 has been relied upon to contend that unless prejudice is shown, mere non following the procedure would not vitiate the inquiry.
In the light of decision of Apex Court in Moni Shankar v. Union of India & another, (2008) 1 SCC (L&S) 819 where an analogous provision under Rule 9 (21) of Railway Servants (Discipline & Appeal) Rules, 1968 was in question, non-compliance has been held to cause prejudice and has vitiated the order.
31. In Union of India v. Pushpa Rani & others, (2008) 9 SCC 242, insofar as policy matters and judicial review are concerned, following observations have made:-
37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring / restructuring of cadres, prescribing the source / mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.
Apex Court in Anil Kumar Vitthal Shete & others v. State of Maharashtra & another, (2007) 1 SCC (L&S) 901 ruled as under:-
33. From the above decisions, it is clear that it is always open to an employer to adopt a policy for fixing service conditions of his employees. Such policy, however, must be in consonance with the Constitution and should not be arbitrary, unreasonable or otherwise objectionable. When several cadres are sought to be unified in few cadres, e.g. three cadres in the instant case, it is natural that all Judicial Officers have to be placed in one or the other cadre. The said fact itself cannot make the decision vulnerable. The High Court, in our opinion, considered the question in its proper perspective and while creating three cadres and placing Judicial Officers in one of the cadres, took into account the relevant principles. So far as the Judges of Small Causes Courts are concerned, they were placed in Category 2 but considering the fact that it was a promotional post from Civil Judges (Senior Division), all of them were en bloc placed above Civil Judges (Senior Division) in the said Category. We find no infirmity therein. It is also clear that in the State of Maharashtra, the new cadre of District Judges covers three existing cadres (i) District Judges, (ii) Joint District Judges, and (iii) City Civil Court Judges and all of them have been placed senior to other cadres in the same category of Additional District Judges, Chief Judges, Small Causes Court and Additional Chief Judges, Small Causes Court. This has been done on the basis that for the District Judge cadre, Additional District Judge cadre is a feeder cadre. The cadre of Additional District Judge is also a feeder cadre for the cadre of Judges of the City Civil Court. Likewise, the cadre of Additional Chief Judge, Small Causes Court is a feeder cadre for the Judges of City Civil Court. In other words, a person holding the post of Additional District Judge can be promoted as a District Judge or as a City Civil Court Judge. Since all the three cadres were to be merged, the superiority of the District Judges and the Judges of City Civil Court was required to be maintained and is accordingly maintained. But it does not mean that District Judges, Chief Judges, Small Causes Court and Additional District Judges/Additional Chief Judges, Small Causes Court cannot be placed in one and the same category. We, therefore, find no illegality in the decision of the Full Court on its Administrative Side which calls for interference.
Government of Andhra Pradesh & others v. P. Laxmi Devi, [1993] INSC 308; 2008 (3) SCALE 45 wherein it has been held that if a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer, the former will prevail.
in State of Uttar Pradesh & others v. Chaudhari Ran Beer Singh & another, (2008) 5 SCC 550.
Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176.
Major General J.K. Bansal v. Union of India, (2005) 7 SCC 227.
Jawaharlal Nehru University v. Dr. K.S. Jawalkar & others, 1989 (3) SLR 730
Uco Bank & another v. Rajinder Lal Capoor, (2008) 5 SCC 257.
Sanjay Singh & another v. U.P. Public Service Commission, Allahabad & another, (2007) 1 SCC (L&S) 870.
in Institute of Chartered Financial Analysts of India v. Council of the Institute of Chartered Accountants of India, (2007) 12 SCC 210 clearly ruled that when the statutory authority transgresses its jurisdiction, the decision making process is nullity in law.
What is permissible to be interfered in a policy decision is only the decision making process, as ruled by the Apex Court in Reliance Energy Limited & another v. Maharashtra State Road Development Corporation Limited & others, (2007) 8 SCC 1 that an act of the administrative authority amenable to be interfered when it suffers from illegality, irrationality and procedural impropriety.
The aforesaid law is well defined by the Apex Court in Ganesh Bank, Kurundwad Limited & others v. Union of India & others, (2006) 10 SCC 645 where the duty of the Courts is laid down to confine itself to the question of illegality, error in law, violation of principles of natural justice, unreasonable and unfair decision. Fairness is a sine qua non of administrative action and has to be tested on the touchstone of reasonableness.
Union of India & others v. Dineshan K.K., AIR 2008 SC 1026
Shekhar Ghosh v. Union of India & another, 2007 (1) SCC (L&S) 247
Basic Shiksha Parishad v. Union of India & others, 2004 SCC (L&S) 654.
Basic Education Board, U.P. v. Upendra Rai & others, 2008 (1) SCC (L&S) 771 ruled that any equivalence in the matter of qualification, the policy cannot be interfered as an administrative authority laying down qualification for equivalence is the prerogative of the Ministry of Labour & Employment and National Industrial Training Centre.
Union of India & others v. Tarsem Singh, (2008) 8 SCC 648
State of M.P. v. S.S. Rathore, [1989] INSC 268; AIR 1990 SC 10
Shankarsan Dash v. Union of India, [1991] INSC 121; (1991) 3 SCC 47, a Constitution Bench of Apex Court ruled that one does not have any indefeasible right to be appointed against vacancy but this does not also give licence to State to act in an arbitrary manner.
learned counsel for applicant would contend that any downgrading in ACRs as compared to the benchmark, which were considered by the DPC and not communicated to the applicant, goes against the dicta of Apex Court in Dev Dutt v. Union of India & others, 2008 (7) SCALE 403 (2008) 8 SCC 725
Secretary, A.P. Public Service Commission v. B. Swapna & others, (2005) 4 SCC 154 to contend that the merit list holders were required to be considered against the future vacancies even then the employer could have scrapped the merit list and resort to the fresh selection against the future vacancies is to be made.
relying on plethora of cases, including K. Shekhar v. Indiramma & others, (2002) 3 SCC 586, it is stated that even in panel, one does not acquire any indefeasible right to be appointed against the future vacancies.
Apex Court in Union of India v. Chajju Ram, (2003) 5 SCC 568 is relied upon.
learned counsel would contend that a wrong decision in favour of some would not entitle others to claim similar relief, as ruled by the Apex Court in State of Bihar v. Kameshwar Prasad, (2000) 9 SCC 94.
To fill up the vacancies is the prerogative of the Government and one has no indivisible right on appointment but appointment on an equally settled principle is that it is only on justifiable reasons that Government can keep the post vacant, as has been ruled in Batiarani Gramiya Bank v. Pullab Kumar & others, 2004 SCC (L&S) 715.
Mere announcement of vacancy does not give an indivisible right to claim that the same shall be filled up but non-filling the vacancies for a long time, an adherence to strict time schedule is the dicta ruled by the Apex Court in Malik Mazhar Sultan & another v. U.P. Public Service Commission & others[1996] INSC 611; , 2006 (4) SCALE 1. No doubt, any vacancy left over from previous selection automatically is included in subsequent selection, as ruled in Madan Mohan Sharma v. State of Rajasthan, (2008) 3 SCC 724 and no interference is permissible by the Government.
Equity may not be considered a legal ground as part of law but when law is to be applied, one of the factors of consideration would be equity. Applicant, who continuously worked from 1985 till 1994 after following due selection process, non-appointment on regular basis without any justifiable grounds, implies an act of mala fide, which as per the Constitution Bench decision in Shankarsan Dash v. Union of India, [1991] INSC 121; (1991) 3 SCC 47 cannot be countenanced in law.
As ruled by the Apex Court in Union of India & another v. Kunisetty Satyanarayana, (2007) 2 SCC (L&S) 304 that the charge sheet in a judicial review could be interfered with at an interlocutory stage if issued without jurisdiction or contrary to law.
Thirdly, it is stated that decisions in Dev Dutt v. Union of India, 2008 (7) SCALE 403 and K.M. Mishra v. Central Bank of India & others, (2008) 9 SCC 120 are per incuriam to each other and as there is no finality arrived at by the Apex Court by a dicta in Full Bench on referral, the decision in K.M. Mishras case (supra) would hold the field.
Recently, the Constitution Bench of Apex Court in Abhijit Ghosh Dastidar v. Union of India & others (Civil Appeal No.6227/2008) decided on 22.10.2008 has relied upon the decision in Dev Dutts case (supra) and held as follows:-
4) It is not in dispute that the CAT, Patna Bench passed an order recommending the authority not to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.
5) Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his pension and other retrial benefits as per rules.
6) The appeal is allowed to the above extent. No costs.
Full Bench decision of this Tribunal B.P. Singh v. Union of India (OA-2621/2006) decided on 4.7.2008
As such, on the face of record, we do not find any error apparent in our order. RA is accordingly dismissed, in circulation, in the light of decision of Apex Court in State of West Bengal v. Kamal Sen Gupta, 2008 (9) SCALE 509.
In the above view of the matter, in appeal when several infirmities are pointed, non-recording of reasons and consideration thereof makes the order passed by the appellate authority illegal, as ruled by the Apex Court in State of Uttaranchal & others v. Kharak Singh, (2008) 8 SCC 236.
The Apex Court in Promotee Telecom Engineers Forum & others v. D.S. Mathur, Secretary, Department of Telecommunications, 2008 (4) SCALE 815 ruled that when persons are similarly situated, they cannot be deprived of the benefits.
Central Bank of India Limited v. Prakash Chand Jain, [1968] INSC 198; AIR 1969 SC 983
High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil & another, 2000 SCC (L&S) 144
. In legal parlance, as ruled by the Apex Court in Bhikhubhai Vithlabhai Patel & others v. State of Gujrat & another[1996] INSC 480; , 2008 (4) SCALE 278, consideration connotes to think over on all relevant aspects of the matter, including defence contentions.
The disciplinary authority when acts the exercise should be fair and bonafide and discretion be exercised judiciously, as ruled by the Apex Court in Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176. It is the duty of the disciplinary authority to record reasons, as ruled in Divl. Forest Officer, Kothagudem & others v. Madhusudhan Rao, (2008) 3 SCC 469.
Narpat Singh v. Rajasthan Financial Corporation, 2007 (11) SCALE 458, the Apex Court has held that a non-speaking order passed by the disciplinary authority is an illegality.
Binapanikar Chowdhury v. Satyabrata Basu & another, (2006) 10 SCC 442 whereby an executor is barred to assert right under the will or from establishing any right under the will not be probated on letter of Administration.
D.S. Nakara v. Union of India, (1983) 1 SCC 304 :
10. The scope, content and meaning of Art. 14 of the Constitution has been the subject matter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to recapitulate all those decisions and it is better to avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (AIR 1978 SC 597) from which the following observation may be extracted:
"........what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all- embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits...... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence."
11. The decisions clearly lay down that though Art. 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question. (See Ram Krishna Dalmia v. S. R. Tendolkar, [1958] INSC 30; 1959 SCR 279 at P. 296: [1958] INSC 30; (AIR 1958 SC 538 at p. 547)). The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be nexus i.e. causal connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of this Court that Art .14 condemns discrimination not only by a substanstive law but also by a law of procedure.
12. After an exhaustive review of almost all decisions bearing on the question of Art. 14, this Court speaking through Chandrachud, C. J. in Re. Special Courts Bill, (1979) 2 SCR 476 at p. 534: (AIR 1979 SC 478 at P. 509) restated the settled propositions which emerged from the judgments of this Court undoubtedly in so far as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are :
"3. The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
4. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same.
5. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise, even a degree of evil, but the classification should never be arbitrary, artificial or evasive.
6. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved by the Act."
13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case (AIR 1978 SC 597) in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in E. P. Royappa v. State of Tamil Nadu, [1973] INSC 214; (1974) 2 SCR 348: (AIR 1974 SC 555) it was held that the basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination. This Court further observed as under :
"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a 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 and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
14. Justice Iyer has in his inimitable style dissected Article 14 as under :
"The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errants of 'executive excesses', if we may use current cliche, can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; Be you ever so high, the law is above you." ((1978) 2 SCR 621 at p. 728: AIR 1978 SC 597 at p. 661). Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sahravardi[1980] INSC 219; , (1981) 2 SCR 79 : [1980] INSC 219; (AIR 1981 SC 487) held that 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. The Court made it explicit that 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 Article 14. After a review of large number of decisions bearing on the subject, in Air India etc. v. Nargesh Meerza[1981] INSC 152; , (1982) 1 SCR 438 : [1981] INSC 152; (AIR 1981 SC 1829) the Court formulated propositions emerging from an analysis and examination of earlier decisions. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis.
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question.
16. As a corollary to this well established proposition, the next question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved? The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of the doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising. the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlates it to the objects sought to be achieved. This approach is noticed in Ramana Dayaram Shetty v. International Airport Authority of India, [1979] INSC 111; (1979) 3 SCR 1014 at p. 1034 : [1979] INSC 111; (AIR 1979 SC 1628 at pp. 1637-38) when at page 1034, the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
Tejshree Ghag & others v. Prakash Parashuram Patil & others, 2007 (2) SCC (L&S) 452 ruled that loss of pay has a civil consequence and requires audi alteram partem.
25. Moreover, in Shekhar Ghosh v. Union of India & another, 2007 (1) SCC (L&S) 247, an opportunity to show cause on recovery has been obligated upon the respondents. Having not done so, when it is incumbent on them, the recovery effected from the gratuity of the applicant is nullity in law.
As held by the Apex Court in N.V. Subba Rao v. Corporation Bank & others, 2006 (13) SCALE 287 in case of dismissal, suspension period has to be treated as qualifying service for the purpose of pension.
Automobile Association Upper India (M/s.) v. The P.O. Labour Court II & another, 2006 VI AD (Delhi) 180, it is stated that once the burden is discharged by the respondents, it shifts to the applicant and non-discharging of this the guilt against the applicant has been proved.
Mathura Prasad v. Union of India & others, AIR 2007 SC 381 ruled that taking livelihood of a person without following due procedure of law cannot be sustained in law.
the Apex Court in Hardwari Lal v. State of U.P. & others, 2000 (1) ATJ (SC) 244 and in Ministry of Finance & another v. S.B. Ramesh, (1998) 3 SCC 227 ruled that any document introduced during the course of inquiry cannot be proved legally unless the maker of the document is summoned and afforded an opportunity for being cross examined by the delinquent. Not doing so has certainly prejudice the applicant in his defence, which vitiates the inquiry.
In T. Kaliamurthi & another v. Five Gori Thaikal Wakf & others, 2008 (11) SCALE 52, the Apex Court on retrospectivity held that no statute has to be operated retrospectively unless provided for.
Devinder Singh & others v. State of Punjab & others, 2007 (12) SCALE 496. Administrative instructions issued on 17.11.1998 found basis of fixation of pay of the applicant, which include reckoning of EOL without medical for grant of higher grades. The subsequent decision in supercession of the earlier order would not be acted retrospectively as ruled by the Apex Court in Sonia v. Oriental India Corporation Limited & others, (2007) 10 SCC 627.
D. Ganesh Rao Patnaik & others v. State of Jharkhand & others, 2005 SCC (L&S) 1171.
Medical reimbursement
Honble Shri Shanker Raju, Member (J)
In Veena Bhatia v. Chairman & Secretary, New Delhi & others (TA-606/2009) decided on 2.4.2009
Also in Jai Narayan Sharma v. Union of India through Secretary, Ministry of Agriculture Krishi Bhawan, New Delhi-1 & others (OA-377/2008) decided on 17.4.2009, the Tribunal has granted full medical reimbursement to the applicant.
the Apex Court in U.P. Gram Panchayat Adhikari Sangh & others v. Daya Ram Saroi & others, 2007 (1) SCC (L&S) 773 ruled that part time employees are not entitled for regularization.
5. As a quasi judicial authority when an appellate authority acts, it is mandated to pass a reasoned order, as ruled by the Apex Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney & others[1996] INSC 562; , 2009 (4) SCALE 169.
Recently, the Apex Court while confronting with such an illegality in Roop Singh Negi v. Punjab National Bank & others[1990] INSC 57; , 2009 (1) SCALE 284 ruled that non-examination of witnesses and bringing the documents without calling the maker, these statements cannot be made admissible.
State of U.P. & another v. Dinkar Sinha, 2008 (1) SCC (L&S) 38. When the statutory rules framed under proviso to Article 309 of the Constitution do not provide for determination of seniority, the administrative instructions issued for want of rules shall validly and legally apply the seniority as ruled in M. Srinivasa Prasad & others v. The Comptroller and Auditor General of India & others, 2007 (5) SCALE 173.
14. It is also trite law that when a clarification is issued to some administrative instructions, it would relate back and be effective from the retrospective date, as if the part of original instructions as ruled in S.S. Grewal v. State of Punjab & others, 1993 SCC (L&S) 1098 and S.B. Bhattacharjee v. S.D. Majumdar & others, __________________________________.
15. With the above position of law clear before us, as regards the question of seniority of direct recruits and promotees, the trite law is that the promotion cannot be given effect to from the date of accrual of vacancy or the panel year but from the date it has been given effect to on joining of a person, as ruled in Nirmal Chandra Sinha v. Union of India & others, 2009 (1) SCC (L&S) 671. In the matter of seniority, as ruled in Nani Shas case and Dinesh Kumar Sharmas case (supra) that a person, who was not even borne in the cadre, he cannot be accorded seniority on a legal fiction and on an implication that he had worked on the promoted post when he was still to join and assume the charge of the post.
16. The Apex Court in B.S. Mathur & another v. Union of India & others, 2009 (1) SCC (L&S) 1 held that seniority between the direct recruits and promotees has to be operated as per OM of 3.7.1986, which has been further clarified vide OM dated 3.3.2008 laying down the following proposition:-
Nani Sha & others v. State of Arunachal Pradesh & others, 2007 (7) SCALE 521
Union of India & others v. Mohd. Ramzaan Khan, JT 1990 (4) SC 456 has ruled that prior to 1.11.1990, non-supply of the inquiry report would not vitiate the inquiry. The penalty imposed upon the applicant on 3.12.1988 is not prior to the cut-off date. As such, non-supply of the inquiry report would not vitiate the inquiry. However, it is trite law that when civil consequences ensue upon the government servant, a prior reasonable opportunity is a mandate, which is in consonance with the principle of audi alteram partem.
16. As ruled by the Apex Court in Union of India & another v. S.C. Parashar, 2006 AIR (SCW) 1068 that combining both minor and major penalty simultaneously in an order is not legally tenable
DR. V.L. CHANDRA AND OTHERS v. ALL INDIA INSTITUTE OF MEDICAL SCIENCES AND OTHERS, 1990-AIR(SC)-0-1670 1990-SCC-3-38
Amitabh Mukerjee v. State of Rajasthan, 1995 (1) SLR 575.
K.J. Gaidane v. State of Maharasthra, 1986 (1) SLR 763.
K.S. Kotahandaraman v. Regional Director, 1989 (6) SLR 416.
J.K. Varshneya & others v. Union of India & others, 1989 (1) ATR 215.
S. Venkata Ramaiah v. Govt. of Andhra Pradesh, 1988 (5) SLR 294.
Olga Tellis & others v. Bombay Municipal corporation and others[1985] INSC 155; , AIR 1986 SC 180,
Francis Coralie Mullin v. Administrator, Union Territory of Delhi & others[1981] INSC 12; , 1981 SCC (Cri) 212; and
Delhi Transport Corporation v. DTC Mazdoor Congress & others[1991] INSC 145; , AIR 1991 SC 101
12. As ruled by the Apex Court in Ramesh Chandra Sankla & others v. Vikram Cement & others, (2009) 1 SCC (L&S) 706, constructive res judicata would come into being and would have application if in the earlier proceedings, an issue raised in the subsequent proceedings has been discussed on merits and adjudicated and attained finality between the parties. As in the instant case, selection for the post of Head Regional Centre was not adjudicated earlier by the Tribunal on this issue, which is now being taken in the present proceedings, the OA is not barred by the principle of constructive res judicata. Hence, the objection stands overruled.
2. It is trite law that if a person appears in a faulty selection process, he is estopped from challenging or questioning it and is bound by the principle of waiver, acquiescence and estoppel, as ruled by Apex Court in Amlan Jyoti Barooah v. State of Assam & others, (2009) 1 SCC (L&S) 627. Also held by the Apex Court in Union of India & others v. Bikash Kuanar (2006) 8 SCC 192 that when a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias.
Ashok Kumar Sonkar v. Union of India & others, (2007) 2 SCC (L&S) 19 while referring to 3-Judge Bench decision in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 SCC 18, on a reference, following has been observed:
"(1) Whether the view taken by the majority (Honble Dr Thommen and V. Ramaswami, JJ.) that it is enough for a candidate to be qualified by the date of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy?"
14. It was held :
"So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview.
15. The said decision is, therefore, an authority for the proposition that in absence of any cut-off date specified in the advertisement or in the rules, the last date for filing of an application shall be considered as such.
16. The Apex Court in Shankar K. Mandal & others v. State of Bihar & others, (2003) 9 SCC 519 has that if there is no cut-off date appointed by the rules, then such date shall be appointed for the purpose in the advertisement calling for the applications and if there is no such appointed date, then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the competent authority.
17. In State of T.N. v. Seshachalam, 2008 (1) SCC (L&S) 475, the Apex Court ruled that merely because a cut-off date has been fixed per se cannot be said to be arbitrary, as some date is required to be fixed for that purpose. Though the cut-off date when does not pass the twin test of Article 14 of the Constitution of India, has been held to be arbitrary in the light of Constitution Bench decision of Apex Court in D.S. Nakara & others v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145. However, in a subsequent decision in K.S. Krishnaswamy etc. v. Union of India & another, (2006) 13 SCC 215, the decision in D.S. Nakaras case (supra) was not found to be applicable.
18. If one has regard to the above, when inequality found in treatment, though merely because a cut-off date is prejudicial to a person, as if one is falling on other side of the cut-off date would not per se declare as arbitrary.
19. In Council of Scientific & Industrial Research & others v. Ramesh Chandra Agrawal & another, 2009 (1) SCC (L&S) 547 on fixation of cut-off date and examination in judicial review, the Apex Court ruled as under:-
29. A `State' is entitled to fix a cut off date. Such a decision can be struck down only when it is arbitrary. Its invalidation may also depend upon the question as to whether it has a rational nexus with the object sought to be achieved. 2.5.1997 was the date fixed as the cut off date in terms of the scheme. The reason assigned therefor was that this was the date when this Court directed the appellants to consider framing of a regularization scheme. They could have picked up any other date. They could have even picked up the date of the judgment passed by the Central Administrative Tribunal. As rightly contended by Mr. Patwalia, by choosing 2.5.1997 as the cut off date, no illegality was committed. Ex facie, it cannot be said to be arbitrary.
30. The High Court, however, proceeded on the basis that the cut off date should have been the date of issuance of the notification. The employer in this behalf has a choice. Its discretion can be held to be arbitrary but then the High Court only with a view to show sympathy to some of the candidates could not have fixed another date, only because according to it, another date was more suitable. In law it was not necessary. The court's power of judicial review in this behalf although exists but is limited in the sense that the impugned action can be struck down only when it is found to be arbitrary. It is possible that by reason of such a cut off date an employee misses his chance very narrowly. Such hazards would be there in all the services. Only because it causes hardship to a few persons or a section of the employees may not by itself be a good ground for directing fixation of another cut off date.
31. The scheme was a one-time measure. The number of posts was not confined to the posts which have been sanctioned. The validity of the scheme has been challenged as unrealistic, illusive, arbitrary or unworkable. We may at this juncture notice that whereas the Tribunal directed framing of a scheme, this Court directed the appellants to consider the same.
32. Cut off date has been fixed for those who are eligible as per the criteria laid down by the scheme. The service rules were framed in terms of the bye-laws of the society. It would bear repetition to state that the Appellant 1 is not a statutory authority. It is a research oriented-organization. It knows its needs. The research fellows and research associates because of their involvement in the research work are to get priority in their appointments. Particular projects whether funded by the Ministry concerned or others would depend upon the nature thereof. It, by a judicial fiat, could not have been made a continuous scheme.
33. Indisputably, a policy decision is not beyond the pale of judicial review. But, the court must invalidate a policy on some legal principles. It can do so, inter alia, on the premise that it is wholly irrational and not otherwise. The contention of the respondents that only two chances are granted for consideration of the candidature of the employees for the purpose of regularization is, in our opinion, misconceived. The scheme being a one-time measure, even one opportunity could have been granted.
Management of Coimbatore District Central Cooperative Bank v. Secretary, Coimbatore District Central Cooperative Bank Employees Association & another, 2007 (6) SCALE 45, we find that inquiry conducted against the applicant on de novo basis is certainly against the law and no finding of grave misconduct recorded in the departmental inquiry as well as his service of more than 35 years are positive factors in his favour, whereas his remaining absent and his refusal to the directions of Ministry of External Affairs to come back are the factors against him. We cannot also forego that right to pension is a fundamental right guaranteed to a government servant.
As ruled by the Apex Court in Prasad Nath Singh v. State of Bihar, 2009 (6) SCALE 157 that a recovery from retired employee on wrong payment is not justifiable. The aforesaid has been reiterated by the Apex Court in Col. (Retd.) B.J. Akkara v. The Govt. of India & others, Transfer Case (Civil) No.72/2004 decided on 10.10.2006 holding that the recovery cannot be effected from a retiree on excess payment on account of wrong interpretation / understanding of Government. However, it is also held that any attempt to recover wrong excess payment may cause hardship to the retiree.
2. As held by the Apex Court in Subha B. Nair & others v. State of Kerala & others, 2008 (9) SCALE 16, the decision of the Government not to fill a vacancy cannot be interfered with. However, in the present admittedly on RTI it has been informed to the applicant that 23 posts of Craft Instructors under promotional quota are lying vacant from December 2005 to April 2007.
In the above view of the matter, on carefully considering the rival contentions of the parties, Apex Court in Arjun singh Rathore & others v. B.N. Chaturvedi & others, 2008 (2) SLJ SC 230 has clearly ruled that the rules applicable as and when vacancy occurs are to hold the field and not the un-amended rules.
12. The above case has also been considered in Union of India & others v. Sangram Keshari Nayak, (2007) 2 SCC (L&S) 587 where paragraph 6 of the circular dated 21.1.1993, which is in pari materia of DOPT OM of 1992 as to the sealed cover, taking note of decision of Apex Court in Union of India v. R.S. Sharma, (2000) 4 SCC 394, it has been held that when the charge sheet has not been issued resort to the sealed cover is not in consonance with law.
The Apex Court in General Manager, Uco Bank & another v. M. Venuranganath, 2007 (14) SCALE 306 has ruled that on acquittal, benefit of doubt is given for all purposes, including back-wages.
2. Learned counsel for applicant relies upon the decision of Apex Court in Tarsem Singh v. State of Punjab & others, (2006) 13 SCC 581 to state that when the grounds and subjective satisfaction with the inquiry has not been reasonably practicable to be held if not brought on record or demonstrated, the order passed cannot be sustained in law. Also assailed is an order passed by the coordinate Bench of this Tribunal in Gaurav v. Govt. of NCT of NCT & others, (OA-819/2007) decided on 19.11.2007 whereby relying upon the catena of decisions, the dispensation of inquiry has been found not in violation of Constitution of India.
6. The Apex Court in Chief Security Officer & others v. Singasan Rabi Das, [1990] INSC 378; (1991) SCC 1 729 quashed the order of punishment, as it was passed on surmises and conjectures.
Union of India v. Tulsi Ram Patel, [1985] INSC 156; (1985) 3 SCC 398
In the matter of equal pay for equal work, if there is no distinct feature, non-application would be against the law, as ruled by the Apex Court in Union of India v. Dineshan K.K., AIR 2008 SC 1026. Also held by the Division Bench of High Court in Union of India & others v. Mohinder Singh & others, (2008) 1 SLJ (HC) 131 that similarly placed employees should get similar treatment in the matter of pay. Recently the Apex Court in State of Kerala v. B. Renjith Kumar & others, 2008 (9) SCALE 557 ruled that equal pay for equal work is to be applied when identical duties are performed.
As ruled by the Apex Court in Mohd. Ahmed v. Nizam Sugar Factory & others, 2005 SCC (L&S) 62 that on wrongful denial of promotion, arrears are to be given. Moreover, the Apex Court in Gopi Chand Vishnoi v. State of U.P. & another, (2006) 9 SCC 694 ruled that in case of non-promotion on post-retirement, retrospective promotion with benefits is a fundamental right of a government servant, which has to be given to him.
12. The Apex Court in Roop Singh Negi v. Punjab National Bank & others[1990] INSC 57; , 2009 (1) SCALE 284 has ruled that the disciplinary and appellate authorities are bound to pass speaking and reasoned orders in the context of the submissions made by the delinquent, which should be passed on legal and admissible evidence.
As a trite law, one who participates in the selection is estopped from challenging it, as ruled in Amalan Jyoti Barooah v. State of Assam & others, 2009 (1) SCC (L&S) 627. Insofar as short-listing criteria is concerned, the Apex Court in B. Ramakichenins case (supra) ruled that matter of short listing can be validly adopted by the Selection Committee even if there is no rule providing short listing, nor any mention in the advertisement calling of the application, unless it is arbitrary or mala fide. It is also held in this case that a criteria once notified must have to be adhered to.
Apex Court in Tridip Kumar Dingal & others v. State of West Bengal and others, 2009 (2) SCC (L&S) 119 ruled that for the purposes of elimination and short listing of huge number of candidates, the criteria adopted is bonafide and reasonable.
In Amalan Jyoti Barooahs case (supra), the Apex Court clearly ruled that within the power of Selection Committee, power to short list and the criteria adopted cannot be subject to judicial review, if it is reasonable and not arbitrary.
Apex Court in Andhra Pradesh Public Service Commission v. Baloji Badhavath & others, 2009 (1) SCC (L&S) 999 ruled that State having limited resources cannot allow any number of candidates to appear in the examination and is bound to devise some procedure to short list the candidates.
In the above view of the matter, as the Apex Court ruled in President, Panchayat Union Council v. P K Muthusamy & others[1988] INSC 12; , 2009 (1) SCALE 107 that judiciary should not ordinarily encroach the domain of the Executive, these OAs lack merit and are accordingly dismissed.
The State of West Bengal & others v. Kamal Sengupta & another, 2008 (9) SCALE 504 wherein guidelines have been issued for the Tribunal under Section 22 (3) (f) of Administrative Tribunals Act, 1985 how to deal with review applications.
functus officio
8. The Apex Court in State of Kerala & another v. E.K. Bhaskaran Pillai, 2008 (1) SLJ SC 164 has ruled that in grant of monetary benefits on notional promotion, no hard and fast rule can be evolved. However, it is held in Mohd. Ahmed v. Nizam Sugar Factory & others, 2005 SCC (L&S) 62 that on wrongful denial of promotion, arrears are necessarily to be allowed.
2. In pursuance of the decision of the Apex Court in Vishaka & others v. State of Rajasthan & others, (1997) 6 SCC 241 in the conspectus of human rights, guidelines have been formulated for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. At the out set, it is trite that on non-production of the departmental records by the Government, an adverse inference has to be drawn, as ruled by the Apex Court in Union of India & another v. Ex Major Sudershan Gupta, 2009 (2) SCC (L&S) 197.
22. The Apex Court recently in Harminder Kaur & others v. Union of India & others, 2009 (7) SCALE 204 by relying upon three Judge Bench of the Apex Court in Official Liquidator v. Dayanand & others, (2008) 10 SCC 1 ruled that a temporary appointee has to compete on age relaxation for being appointed to the regular post as per the recruitment rules.
decision of the Apex Court in U.P. Gram Panchayat Adhikari Sangh v. Daya Ram Saroj & others, 2007 (1) SCC (L&S) 773, it is argued that permanent status cannot be conferred upon part time employees.
In judicial review on a lis when presented before us sometimes without going into the intricacies of rules and law, we are equity based. Compassionate relief does not attract the technicalities of law. Grant of pension to a government servant and in turn on his death, grant of family pension is a fundamental right guaranteed to the widow. If the husband dies and the widow is not getting the due family pension as per rules, it is always open for her to institute a case before us on a cause of action, which has been approved by the Five Judge Bench of this Tribunal in Mrs. Chandra Kala Pradhan v. Union of India & others, 1997-2001 A.T. Full Bench Judgments 410.
Limitation is not an impediment for preventing miscarriage of justice. It is only a technicality, which forbids a stale cause of action to be agitated before the judicial fora. No doubt one who sleeps over his rights looses a remedy and on this principle the limitation is an important facet in dispensing with justice and deciding the cases on examination of the cause of action in judicial review.
The Apex Court in Union of India & others v. Shantiranjan Sarkar, (2009) 3 SCC 90 ruled that in a case before the Tribunal, the Union of India cannot take advantage of its own wrong and on equity, relief has to be accorded to the parties. In another case in Basanti Prasad v. The Chairman, Bihar School Examination Board & others, 2009 (8) SCALE 401, where a termination of a teacher, who died, was reopened after 20 years and on his acquittal what has been granted is the pension to the widow.
If reasonable explanation is tendered in a writ jurisdiction, it is imperative upon the Bench to hear the case on merits, as ruled by the Apex Court in Ravindra Nath v. State Bank of India & others[1984] INSC 23; , 2009 (1) SCALE 130.
22. While considering the issue of limitation, the Apex Court in Ratansingh v. Vijaysingh & others, (2001) 1 SCC 469 ruled that a liberal and broad based construction is necessary. It is also held by the Apex Court in Madras Port Trust v. Hymanshu International By its Proprietor V. Venkatadri (Dead) By L.Rs., (1979) 4 SCC 176 that the Government should avoid technical pleas to defeat the substantial cause of justice. From time to time, the issue of limitation has been settled by the Apex Court but never in the history of a case where a bonafide claim by the widow for grant of correct family pension has been turned down on this technical ground of limitation, as ruled in Union of India & others v. Tarsem Singh, (2008) 8 SCC 648. A recurring cause of action has been well explained and non-payment of correct family pension on account of non-adding of qualifying service under Rule 30 of Pension Rules is a recurring cause of action, which is continuing and still available to the applicant to raise her grievance before us. In the above view of the matter, we overrule the objection with regard to limitation raised by respondents counsel.
Though a selected candidate has no indefeasible right for appointment and one, who attempts forgery, no sympathy could be shown to him, yet when the appointment is denied wrongfully, it has to be interfered with as ruled by the Apex Court in Uttar Pradesh Public Service Commission v. Satyanarayan Sheohare & another, 2009 (2) SCC (L&S) 265.
Official Liquidator v. Dayanand & others, (2008) 10 SCC 1. However, it is the principle of equality in pay would apply where duties are identical, as ruled by the Apex Court in Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & others, (2007) 6 SCC 9. It is also held by the Apex Court in Union of India & others v. Dineshan K.K., AIR 2008 SC 1026 that for want of any distinct feature, the doctrine has to be applied.
9. The Division Bench of High Court of Delhi in Union of India & others v. Mohinder Singh & others, 2008 (1) SLJ (HC) 131 followed the aforesaid dicta.
10. Recently, the Apex Court in State of Kerala v. B. Renjith Kumar & others, 2008 (9) SCALE 557 held that the principle of equal pay for equal work has assumed the status of a fundamental right. In Union of India & others v. Satya Brata Chowdhury & others[1985] INSC 3; , 2009 (1) SCALE 101, the Apex Court ruled that if higher pay scales are given to others, it cannot be denied to similarly circumstanced. A policy decision when bestows upon a category or class of employees a benefit, it would be irrational if it is denied to the counterparts and is interferable in judicial review, as ruled in Council of Scientific and Industrial Research & others v. Ramesh Chandra Agrawal & another, 2009 (1) SCC (L&S) 547.
Recently, the Apex Court in Mohd. Abdul Kadir & another v. Director General of Police, Assam & others, 2009 (2) SCC (L&S) 227 in the matter of laying down policy ruled that Courts should avoid laying down but a public issue raised should get attention. As ruled by the Apex Court in a Constitution Bench decision of D.S. Nakara & others v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145 that in upholding the constitutional mandate of Article 14 of the Constitution, financial constraints are not to be an impediment. Like-wise the Bombay High Court in Union of India & others v. Atomic Energy Workers & Staff Union & others, (2005) 1 ATJ HC 92, it has been held that financial constraint cannot be a defence to parity of scales. Our view is further reiterated by the Apex Court in State of Punjab & another v. Surjit Singh & others, 2009 (11) SCALE 149.
12. Another aspect of the matter is the alleged misconduct of coming late to office by six minutes cannot be treated as a trivial misconduct, for which holding of an inquiry and imposing a major punishment, certainly is unwarranted and unreasonable in the circumstances. An error of judgment or simple negligence is also not a misconduct, as ruled by the Apex Court in Inspector Prem Chand v. Govt. of NCT of Delhi, 2007 (5) SCALE 421.
12. In the doctrine of precedent and stare decisis, the Apex Court in MMMD Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority & another, 2005 SCC (L&S) 198 ruled that non-speaking order of the High Court does not constitute a precedent. Though the reasons have been recorded by reproducing the rules and Note, yet the decision of High Court is binding on subordinate Courts and has to be carried out, as ruled by the Apex Court in Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 753.
13. As ruled by the Apex Court in Jayaswals Neco Limited v. Commissioner of Central Excise, Nagpur, (2007) 13 SCC 807 that when a decision of coordinate Bench is not deliberated the decision of another coordinate Bench, it cannot take a contra view and is bound for want of disagreement as rule of precedent in an important aspect of legal certainty in the rule of law, as ruled in Honda Siel Power Products Ltd. V. Commissioner of Income Tax, Delhi, (2007) 12 SCC 596.
14. While on a disposal of a case by the High Court without realizing the factual position and without relying on an earlier decision, this approach would be casual and the decision would be per incuriam, as ruled in Municipal Corporation Faridabad v. Durga Prasad, (2008) 5 SCC 171 by the Apex Court.
15. Insofar as the ratio decidendi of a case is concerned, an observation made by superior Court is not binding. Such a decision should be arrived at upon entering into the merits of the case, as ruled in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & another, (2008) 11 SCC 753.
16. The Apex Court in U.P. Gram Panchayat Adhikari Sangh & others v. Dayal Ram Saroj & others, (2007) 2 SCC 138 and also in Maharasthra University of Health Sciences represented by Deputy Registrar v. Paryani Mukesh Jawaharlal & others, (2007) 10 SCC 201 ruled that Judicial discipline is self discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a co-ordinate Bench of the same High Court is brought to the notice of the Bench, it is respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then often is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity. The aforesaid ratio also is an authority to the fact that if a judgment is not brought into notice and the decision is taken by a coordinate Bench ignoring the same it would be per incuriam decision. The Apex Court at a great length laid emphasis on the doctrine of precedent in Official Liquidator v. Dayanand & others, (2009) 1 SCC (L&S) 943 with the following observations:
17. In K.G. Arumugham & others v. K.A. Chinnappan & others, (2005) 2 SCC 793, the Apex Court held that High Court cannot sit in appeal in an earlier order passed by it in the same matter, which has already attained finality and set aside that order. The doctrine of precedent is well explained by observing that a coordinate Bench of the High Court is bound by another coordinate Bench where the order has attained finality.
14. Moreover, one cannot be deprived of a reasonable opportunity to cross examine the witnesses. A document when made part of the departmental proceedings, unless it is in clear terms admitted as a guilt by the delinquent official, it has to be proved on a methodology approved in law. This methodology has been laid down in S.B. Rameshs case (supra) as well as in Hardwari Lal v. State of Uttar Pradesh, (1999) 8 SCC 582 wherein, in categorical terms, it is ruled that a document cannot be proved without examination of its maker.
10. Insofar as the recovery is concerned, which has now been recovered from the applicant, we are fortified with our view as ruled by the Apex court in Paras Nath Singh v. State of Bihar & others, 2009 (2) SCC (L&S) 198 wherein it is ruled that even if there is wrong promotion, which is not attributable to the concerned employee, no recovery could be effected.
Recently, the Apex Court, in an identical situation, in Shanti Sports Club & another v. Union of India & others, 2009 (11) SCALE 731 held that Article 14 of the Constitution is a positive concept and negativity has not to be exercised to perpetuate illegality.
It is trite in law that the Government is entitled to rectify any of the mistake committed by them but only after following the due process of law, as ruled by the Apex Court in Union of India & another v. Narendra Singh, 2008 (1) SCC (L&S) 547.
The Apex Court in Union of India & others v. Prakash Kumar Tandon, (2009) 2 SCC 541 examination of witnesses for defence clearly ruled that an application for summoning the witnesses should be considered by the inquiry officer and if it is turned down, reasons are to be recorded.
Trilok Nath v. Union of India & others, 1967 SLR SC 759.
19. Delay defeats justice and with the passage of time, i.e., almost 17 years, now asking the applicant to comment upon the inquiry where on fading of human memory and non-availability of the records, this delay has certainly prejudiced the applicant, as ruled by the Apex Court in Agyakar Singh v. Punjab State Electricity Board and others, 2009 (1) SCT 709 DB (P&H) as well as in Govt. of Andhra Pradesh & others v. V Appala Swamy, (2009) 1 SCC (L&S) 440. As such, the inquiry as well as the pursuant orders is vitiated.
recruitment rules. A candidate, subject to faulty selection process, cannot question it and is estopped in law, as ruled in Amlan Jyoti Borooah v. State of Assam, 2009 (1) SCC (L&S) 627. Further held by the Apex Court that if a selection is by the Board and assessment by an expert body, no interference is permissible without alleging malafides, as ruled in B.C. Mylarappa alias Dr. Chikka Mylarappa v. Dr. R. Venkatasubbaiah & others, 2009 (2) SCC (L&S) 148.
M/s. Sahara India (Firm), Lucknow v. Commissioner of Income Tax, Central-I & another, 2008 (3) AJW 847.
9. Insofar as the recovery is concerned, on wrong time bound promotion given in case of a retired government servant, recovery has not been found to be justifiable by the Apex Court in Paras Nath Singh v. State of Bihar & others, 2009 (6) SCALE 157.
10. Further an error detected not earlier but on a belated process, excess amount cannot be recovered as per the decision of the Apex Court in Syed Abdul Qadir & others v. State of Bihar & others, (2009) 1 SCC (L&S) 744. In the above view of the matter, re-fixation of pay of the applicant and accordingly, pension and pursuant recovery suffer from the vice of audi alteram partem and being contrary to the principles of natural justice, cannot be countenanced in law. As there is no distinction between a retired employee on attaining the age of or voluntarily retired person, when no fault is attributable to the applicant, recovery cannot be countenanced.
11. Insofar as promotion of the applicant is concerned, in para 15 of the writ petition, the contention raised is that promotion as Headmistress is to a post involving higher duties and responsibilities. The decision of Apex Court in State of Rajasthan v. Fateh Chand Soni, [1995] INSC 834; (1996) 1 SCC 562 clearly rules that promotion can be either to a higher pay scale or higher post. In such an event, when it is not controverted by the respondents that post of Headmistress assumes higher responsibilities, as compared to Assistant Teacher, the aforesaid fixation of the applicant on promotion was in accordance with rules.
Ghulam Rasool Lone v. State of J & K & another, 2009 (9) SCALE 644 and also in Shanti Sports Club & another v. Union of India & others, 2009 (11) SCALE 731.
dicta in Union of India through Govt. of Pondicherry & another v. V Ramakrishnan & others, 2005 (2) SC SLJ 495. Moreover, in the matter of recruitment rules till they are declared invalid or unconstitutional have applications as per the decision of Apex Court in Union of India & others v. S.K. Saigal & others, (2009) 1 SCC (L&S) 856.
At the outset what is binding under Article 141 of the Constitution of India is a decision of the Apex Court where question of law is directly raised and considered on decision, as ruled by the Apex Court in Tika Ram v. State of U.P., 2009 (12) SCALE 349.
Per incurriam decisions are those decisions, which are passed in ignorance of the decision of the coordinate Bench or without considering the statutory rules, as ruled in State of Bihar v. Kalika Kuer @ Kalika Singh & others, (2003) 5 SCC 448.
Per incurriam decisions are also those decisions, which are made by the High Court where relevant decisions of the Apex court are not considered and are also in ignoratium of a statute or other binding authority, as ruled in Mayuram Subramanian Srinivasan v. CBI, (2006) 5 SCC 752.
Under the doctrine of precedent, a decision is an authority that what it decides but it is not what can be logically deduced from it, as ruled in State of Haryana v. Ranbir Alias Rana, (2006) 5 SCC 167. What is binding by the Apex Court is a law declared, as ruled in Bombay Dyeing & MDF. Co. Ltd. v. Bombay Environmental Action Group & others, (2006) 3 SCC 434.
Under Articles 141 and 142 of the Constitution when a question of law is left open and mere directions given in a case without laying down principles of law do not constitute a precedent, as ruled in Indian Drugs & Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408.
In a Constitution Bench decision, the Apex Court in Confederation of Ex-servicemen Associations & others v. Union of India & others, (2006) 8 SCC 399 on a scheme framed by the Government to provide ex-servicemen the medical services on one time contribution, which were weighed in the context of financial constraints and limited means, held that free and full medical facilities is not a part of a fundamental right of ex-servicemen.
In plethora of decisions in State of Punjab & others v. Ram Lubhaya Bagga etc. etc., (1998) 4 SCC 117, K.P. Singh v. Union of India & others, (2002) SCC (L&S) 761, and State of Punjab & others v. Mohan Lal Jindal, (2002) SCC (L&S) 189, medical reimbursement to a government servant/pensioner has been approved.
In Suman Rakheja v. State of Haryana & another, (2004) 13 SCC 562 going to the extremist, the Apex Court in a case where in an emergent situation the treatment was taken on non-referral in an unapproved and un-recognized hospital, reimbursement 100% at AIIMS rates and 75% expenses over and above were allowed. However, as per the state policy, the medical reimbursement was restricted to the financial limits by the Apex Court in State of Karnataka & another v. Sri R Vivekananda Swamy[1995] INSC 653; , (2008) 6 SCALE 261.
3. In support of his case, learned counsel for applicant relies upon the decision of Apex Court in M.C.D. v. Veena & others (CA No.3045/1998) decided on 14.8.2001. As this decision being anterior in time, the latest decision of Apex Court in Union of India & another v. Dalbir Singh & others, 2009 (2) SCC (L&S) 316 wherein it has been clearly ruled that where there are separate lists for general and OBC categories candidates, even if an OBC candidate secures more marks than the general category candidate then no directions could be issued to consider them for appointment under general category, is binding on us and is to be followed under the doctrine of precedent under Article 14 of the Constitution of India.
7. Accordingly, the applicant is entitled not only for the release of pension and other retiral benefits but also a simple interest @ 9% p.a. on the date the amount is due till it is actually paid, as per the decision of Apex Court in A Sulekha v. N.A. Das & others, (2006) 13 SCC 399.
8. Proportionality of punishment is interfered only when the conscience of the Court is shocked. However, the interference is also permissible while examining the proportionality. The relevant factors have not been considered by the competent authority, as ruled in Praveen Bhatia v. Union of India & others, (2009) 4 SCC 225.
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