The Secretary, Ministry of Defence vs Babita Puniya & Ors-17/7/2010

SUPREME COURT OF INDIA JUDGMENTS

For this reason, we have noticed that the engagement of women in the Combat Arms has been specifically held to be a matter of policy by the judgment of the Delhi High Court and which is not in question in the present appeals. …………That in our view is not the manner in which the steps taken progressively by the Union Government to bring women into the mainstream of the Army (except the Combat Arms) can be viewed. The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women”.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 9367-9369 of 2011

The Secretary, Ministry of Defence …Appellant

Versus

Babita Puniya & Ors. …Respondents

With

Civil Appeal Nos 1127-1128 of 2013

And With

Civil Appeal No. 1210 of 2020

Continue Reading

SC can`t direct Govt to provide reservation and States are not bound to make reservation for ST and SC in matters of promotions.

SUPREME COURT OF INDIA JUDGMENTS

It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 1226 of 2020
[Arising out of S.L.P. (Civil) No. 23701 of 2019]

Mukesh Kumar & Anr. …. Appellant(s)

Versus

The State of Uttarakhand & Ors. …. Respondent(s)

Continue Reading

Apex Court is in favour of disclosing marks of Main Exam before conducting viva-voce in Judicial Services-13/12/2019

SUPREME COURT OF INDIA JUDGMENTS

As the written examination assesses knowledge and intellectual abilities of a candidate, the interview is aimed at assessing their overall intellectual and personal qualities which are imperative to hold a judicial post.

Disclosing mark of written Examination before Viva-Voce-As regards the petitioners’ plea that marks of the Main Exam should be disclosed before conducting viva-voce, we are of the considered opinion that such a practice may not insulate the desired transparency, rather will invite criticism of likelihood of bias or favourtism. The broad principles to be laid down in this regard must be viewed keeping in view the selections for various categories of posts by different Selecting Authorities, for such a self-evolved criteria cannot be restricted to Judicial Services only. If the Members of the Interviewing Boards are already aware of the marks of a candidate secured in the Written Examination, they can individually or jointly tilt the final result in favour or against such candidate.The suggested recourse, thus, is likely to form bias affecting the impartial evaluation of a candidate in viva-voce. The acceptance of the plea of the petitioners in this regard will also run contrary to the authoritative pronouncement of this Court in Ashok Kumar Yadav and Others v. State of Haryana((1985) 4 SCC 417).

Continue Reading

THE ASSAM PUBLIC SERVICE COMMISSION & ORS VS PRANJAL KUMAR SARMA & ORS 28/11/2019

Selection process-the norms existing on the date when the process of selection begins, will control the selection and the alteration to the norms would not affect the ongoing process unless the new Rules are to be given retrospective effect.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9100 OF 2019 (Arising out of SLP(C) No. 23677 OF 2019)

THE ASSAM PUBLIC SERVICE COMMISSION & ORS…… APPELLANT(S)

VERSUS

PRANJAL KUMAR SARMA & ORS……. RESPONDENT(S)

Act: Assam Service Commission (Conduct of Business) Procedure, 2019

JUDGMENT

Hrishikesh Roy, J.

1. Leave granted.

2. This appeal arises out of the Special Leave Petition (Civil) No. 23677 of 2019. The Assam Public Service Commission (for short “APSC”) has approached this Court to challenge the judgment and order dated 8th August, 2019 in W.P. (C) No. 4600 of 2019 whereby the Gauhati High Court struck down a portion of Clause 12.2 of the Assam Service Commission (Conduct of Business) Procedure, 2019 (hereinafter referred to as “the 2019 Procedure”). The following portion of Clause 12.2, incorporated with effect from 1st April, 2019, under the 2019 Procedure, was struck down by the High Court.

“…………and any proceeding in relation to interviews, selections or competitive examination pending on the date of commencement of these Procedures may be continued and completed in accordance with the provisions of the Rules in force prior to such commencement.”

3. The result of the above is that the norms of selection for an ongoing process gets changed mid-stream in course of recruitment, for the 65 vacancies of Assistant Engineer (Civil) under the Water Resources Department for which, the APSC had issued an advertisement on 21st December, 2018 (“Annexure P-I”). On the date of the advertisement, the previous norms i.e. the Assam Public Service Commission (Procedure and Conduct of Business) Rules, 2010 (hereinafter referred to as “the 2010 Rules”), were in operation. The 2010 Rules provided for assessment of academic merit, special knowledge, additional relevant qualification, relevant service experience etc. under Rule 29 and 30, in the following manner: –

“29. The Commission may determine the qualifying standard by giving weightage on academic merit, subject knowledge, additional relevant qualification, service experience relevant to the post etc. for preparing the final order of select list.

30. In the viva-voce test marks shall be allocated as below:

(i) 50% on academic/professional qualification/service experience relevant to the post/preferential qualification.

(ii) 50% for subject knowledge and general bearing. Out of this, 20% shall be for subject knowledge and the remaining 30% for general bearing.

There shall be five gradings for Adviser/Expert’s marks viz., ‘Excellent’, ‘Very Good’, ‘Good’, ‘Fair’ and ‘Average’, the value of which shall be determined by the Commission.”

4. The aforesaid 2010 Rules were challenged by one Manash Pratim Baruah in the Gauhati High Court through W.P.(C) No. 1998 of 2017. He contended that the State Public Service Commission is not empowered to adopt any Rule in the nature of the 2010 Rules as was done by the APSC, by invoking the powers under proviso to Article 320 of the Constitution of India. During the pendency of the Writ Petition, the 2010 Rules were repealed and a new set of procedure i.e, “The Assam Public Service Commission (Conduct of Business) Procedure, 2019” came into effect, from 1st April, 2019. Accordingly, the APSC through their affidavit filed in the W.P.(C) No. 1998 of 2017 informed the High Court about adoption of the 2019 Procedure.

5. During that period, acting on the advertisement (dated 21.12.2018) to fill up the 65 posts of Assistant Engineer (Civil), the APSC on 12.06.2019 had notified that an OMR based screening test, with multiple choice objective type questions, will be conducted on 30.06.2019. The said screening test was conducted under the 2010 Rules and as such there was no negative marking which was introduced for the first time by the 2019 Procedure, for the APSC conducted selections.

6. The four respondents had offered their candidature by responding to the advertisement dated 21st December, 2018 and they appeared in the screening test conducted on 30.06.2019. Nevertheless they also filed the W.P.(C) No. 4600 of 2019 challenging Clause 12.2 of the 2019 Procedure which provided that notwithstanding the repeal of the 2010 Rules, the action taken under the repealed Rules including conduct of interview/selection or competitive examination or declaration of any result thereof by the APSC, shall be deemed to have been valid and the pending interviews/selections or competitive examinations may be continued and completed, in accordance with the 2010 Rules. The basic challenge therefore, by the four respondents as writ petitioners, was to the saving clause for the ongoing recruitment process conducted under the 2010 Rules. It would be relevant to mention at this stage that in view of the adoption of the 2019 Procedure by repealing the 2010 Rules, the earlier W.P.(C) No. 1998 of 2017 was disposed of as infructuous on 16th July, 2019 by the High Court reserving the liberty to the writ petitioner to assail, if aggrieved, the newly formulated 2019 Procedure.

7. The Gauhati High Court on 22.07.2019 issued returnable notice in the W.P.(C) No. 4600 of 2019 and the Division Bench after noticing that the APSC is conducting large number of examinations made an observation that attempt would be made to dispose of the matter on the returnable date i.e. 08th August, 2019.

8. The case was next considered on the returnable date and the High Court under the impugned judgment dated 08.08.2019 held that the 2010 Rules will have no application for those interviews/selections for which, exercise has not begun. The Court also observed that the advertisement issued prior to 01.04.2019 (the date of commencement of the 2019 Procedure) has no relevance for the applicability of the 2019 Procedure and accordingly held that even in a situation where the written examination was held but interview is yet to be conducted, the newly introduced 2019 procedure has to be applied in the interview segment of the selection. It was finally observed that all pending interviews/selections and competitive examinations, even if occasioned by advertisements issued prior to 01.04.2019 shall be guided by the 2019 Procedure. The Writ Petition of the respondents was accordingly allowed on 08.08.2019 by the High Court.

9.1 Assailing the legality of the impugned judgment, Mr. Parthiv K. Goswami, learned counsel submits that currently the APSC, besides conducting the subject recruitment/selection for the Water Resources Department, is also undertaking selection process for the posts of, inter alia, Computer Operator/Typist, Forest Ranger, Agricultural Development Officer for which respective advertisements were issued prior to incorporation of the 2019 Procedure and the process of selection through screening test/written test were conducted under the 2010 Rules. Insofar as the recruitment for the 65 posts of Assistant Engineer (Civil) advertised on 21.12.2018, the learned counsel points out that the last date for applying for the post was stipulated as 02.02.2019 and thereafter around 6000 applicants including the four respondents, appeared for the screening test conducted on 30.06.2019 under the 2010 Rules. Adverting to these relevant dates, the appellants would argue that the process of selection in the present case had commenced with the issuance of advertisement well before the 2019 Procedure was notified with effect from 01.04.2019 and therefore, the selection should be in accordance with the 2010 Rules which prevailed on the date of the advertisement.

9.2 The appellant’s counsel then argues that alteration of the selection norms by the APSC through the 2019 Procedure which has prospective application, should have no bearing on the ongoing process, on account of the savings clause incorporated in the 2019 Procedure.

10.1 Per contra Ms. Rekha Pandey, learned counsel appearing on behalf of respondent Nos. 1 to 4 (writ petitioners) by referring to the preamble of the 2019 Procedure argues that the new Procedure was adopted to bring in more transparency in the conducting of recruitment by the Commission, on account of the deficiencies noticed in the process in the 2010 Rules. She accordingly argues that adopting the 2019 Procedure for the viva-voce segment of the recruitment exercise would ensure weightage for merit and avoidance of arbitrary selection, which was possible under the 2010 Rules.

10.2 The respondents counsel then refers to Rules 29 and 30 of the 2010 Rules to highlight that the procedure envisaged did not provide adequate weightage to test the merit of the candidates, on their academic/professional qualification, service experience, etc. and therefore, the 2019 Procedure should govern the next phase of selection.

11. To deal with the rival submission, the relevant clauses in the process of selection envisaged under the 2019 Procedure, will bear consideration. The concept of negative marking is introduced for the first time under Clause 4(B)(ii) which provides that for each wrong answer, @ 0.25 marks are deducted against each question. Besides the Clause 4(B)(vi) stipulates that marks for the interview shall not exceed 12.2 per cent of the total marks. The screening test in which the respondents and other candidates appeared on 30.06.2019 under the 2010 Rules as earlier noted, had no negative marking and, therefore, the candidates could take the risk of guessing the correct answer in the multiple choice test, without the fear of being penalised for incorrect answer.

12. In the above backdrop, if the next segment of selection is to be conducted under the 2019 Procedure, the performance of the candidate in the aforenoted screening test to the extent of 87.8 per cent of the total marks, will determine the final selection of the candidate. The question, therefore, is whether this would be fair on the candidates when the performance of few would be determined more by lucky guess and the real merit may have no role in the aggregate score. The other relevant question is whether the method of selection should be permitted to be changed midway, by adopting the 2019 Procedure incorporated with effect from 01.04.2019 for the vacancies, which were advertised on 21.12.2018.

13. The law with regard to applicability of the Rules which are brought anew during the selection process have been crystalized by this Court. It has been held that the norms existing on the date when the process of selection begins, will control the selection and the alteration to the norms would not affect the ongoing process unless the new Rules are to be given retrospective effect. (See State of Bihar and Others vs. Mithilesh Kumar1). Similarly in N.T. Devin Katti and Others vs. Karnataka Public Service Commission and Others2, this Court held that a candidate has a limited right of being considered for selection in accordance with the Rules as they existed on the date of advertisement and he cannot be deprived of that limited right by amendment of the Rules during the pendency of the selection, unless the Rules are to be applied retrospectively.

14. If we proceed with the above enunciation of the law in Mithilesh Kumar (supra) and N.T. Devin Katti (supra), the conclusion is inevitable that for the current recruitment process for which advertisement was issued on 21.12.2018, the 2019 Procedure (which came into effect from 01.04.2019) can have no application, particularly when the first phase of the selection i.e. the screening test was conducted under the 2010 Rules.


1 (2010) 13 SCC 467

2 (1990) 3 SCC 157


15. One must also be conscious of the savings Clause 12.2 incorporated in the 2019 Procedure which makes it abundantly clear that the interviews/selection or competitive examinations pending on the date of commencement of the Procedure should be continued and completed, in accordance with the 2010 Rules.

16. In the present case, if the contention advanced by the respondents is accepted and the next segment of the process of selection is carried out under the 2019 Procedure, it will give rise to an anomalous situation inasmuch as the screening test which was conducted without negative marking, under the 2010 Rules, without provisions for negative markings, will have a major bearing in the final outcome of selection. This would definitely prejudice the candidates who have undertaken exams under 2010 Rules. The consistent law on the issue also makes it clear that recruitment process pursuant to the advertisement issued by the APSC on 21st December, 2018 must necessarily be conducted under the selection norms as applicable on the date of the advertisement. Moreover, having regard Rule 29 and Rule 30 of the 2010 Rules, it must also be said that merit of the candidates would definitely be assessed in the selection exercise, undertaken by the APSC. The APSC is also capable of conducting a fair selection and we believe that they will keep in mind, the lawful expectation and the constitutional mandate.

17. If the direction in the impugned judgment of the High Court is to be followed for conducting the next segment of the selection, for the single recruitment process the candidates will be evaluated by two different sets of procedure i.e. the 2010 Rules and the 2019 Procedure and such dual norms must not in our opinion, govern the ongoing recruitment process.

18. In view of the foregoing, we are persuaded to hold that the recruitment process initiated by the APSC through the advertisement dated 21.12.2018 for the 65 posts of Assistant Engineer (Civil), of the Water Resources Department should be finalised under the 2010 Rules. Consequently, the direction issued for application of the 2019 Procedure in the impugned judgment is found to be not merited and the same is accordingly interfered. The appeal stands allowed by permitting the APSC to complete the process of selection for the advertised posts, by following the 2010 Rules.

J.[R.BANUMATHI]

J.[A.S.BOPANNA]

J.[HRISHIKESH ROY]

NEW DELHI
NOVEMBER 28, 2019


THE EMPLOYMENT (RECORD OF SERVICES) ACT 1951

THE EMPLOYMENT (RECORD OF SERVICES) ACT 1951[ PAKISTAN]

(Act XIX of 1952)

C O N T E N T S

SECTION HEADING

1. Short title, extent, application and commencement.

2. Definitions.

3. Exemption.

4. Service book to be produced by employee.

5. Form of the service book.

6. Entries in the service book.

7. Power of Inspection.

8. Penalty.

9. Cognizance of offences.

10. Prosecution.

11. Protection of action taken under the Act.

12. Power to make rules.


[1]THE EMPLOYMENT (RECORD OF SERVICES) ACT 1951

(Act XIX of 1952)

[18 April 1952]

An Act to make provision for the compulsory maintenance of the records of service of persons in certain classes of employment in certain areas.

Whereas it is expedient to make provision for the compulsory maintenance of the record of service of persons in certain classes of employment in certain areas; it is hereby enacted as follows:-

1. Short title, extent, application and commencement.‑ (1) This Act may be called the Employment (Record of Services) Act, 1951.

[2][(2) It extends to the whole of [3][the Punjab].]

(3) It applies to all persons concerned as employers or employees in such classes of employment and in such areas as the [4][[5][* * *] Government] may specify by notification in this behalf.

(4) It shall come into force on such date as the [6][[7][* * *] Government] may, by notification in the official Gazette, appoints.

2. Definitions.– In this Act, unless there is anything repugnant in the subject or context,–

[8][* * * * * * * * * * * *]

(b) “employee” means a person to whom this Act applies engaged for hire or for any other pecuniary consideration by an employer, or an apprentice;

(c) “employer” means any person to whom this Act applies engaging the services – manual or clerical, skilled or unskilled – of another for hire or for any other pecuniary consideration or an apprentice for the purpose of carrying on his calling, trade, business, undertaking or manufacture or for, personal or domestic service and includes any body of persons whether incorporated or not and any managing agent of any employer;

[9][(cc) “Government” means Government of the Punjab;]

(d) “Labour Commissioner” means the officer so designated and appointed by the [10][[11][* * *] Government];

(e) “prescribed” means prescribed by rules made under this Act; and

(f) “wages” has the same meaning as in the Payment of Wages Act, 1936 (IV of 1936).

3. Exemption.‑ The [12][[13][* * *] Government] may exempt from the provisions of this Act any establishment or undertaking where records of service are maintained to the satisfaction of the Government.

4. Service book to be produced by employee.‑ (1) Before engaging an employee the employer shall require from him his service book, if he asserts that he has been previously in employment under any other employer and the employee shall produce the service book if he has one.

[14][(2) If the employee has no service book, the employer shall, at his own cost, provide one and keep it with himself.]

(3) The service book [15][if any produced by the employee under sub-section (1)] shall be kept by the employer, who shall give the employee a receipt there for in the prescribed form.

(4) Nothing in this section shall prevent an agreement between the employee and the employer whereby it is provided that the employee shall keep and maintain a duplicate of his service book.

(5) The employer shall hand over service book to the employee on the termination of the employee’s service with the employer, except where the [16][employee] has kept and maintained a duplicate of service book.

[17][(6) If the service book handed over to the employee under sub-section (5), or the duplicate thereof maintained by him, is lost by him, the employer shall provide him with a duplicate service book and may charge him the prescribed price.]

5. Form of the service book.– The service book shall be of the size and in the form as may be prescribed and a passport size photo of the employee if a male shall be affixed to it. The service book shall contain particulars of identification of the employee, the names and other particulars of the persons under whom employed from time to time, period of employment, occupation, rate of wages including allowances, if any, leave taken and records of conduct and efficiency by employers.

6. Entries in the service book.– The employer shall at the commencement of the employment and during the continuance of the same make such entries therein from time to time as are required by this Act and the rules made there under and he and the employee shall sign the entries as they are made.

7. Power of Inspection.– The Labour Commissioner or an officer authorised by him in writing may by written notice require an employer or an employee to produce the service book or the duplicate service book or any other paper or document which he may have reason to believe contains the particulars noted in the service book and thereupon the employer or the employee, as the case may be, shall comply if he is in possession of the said book, paper or document.

8. Penalty.– Any breach of the provisions of this Act or the rules made thereunder shall be punishable in the case of an employer with fine which may extend to [18][five thousand] rupees, and in the case of an employee with a fine which may extend to [19][five hundred] rupees and for the purposes of this section any failure or refusal to comply with a requirement duly made by a person empowered under this Act or under the rules made thereunder to make it shall be deemed to be a breach of the said provisions.

9. Cognizance of offences.– No court shall take cognizance of an offence punishable under this Act unless previous sanction for prosecution has been accorded on the prescribed form by the Labour Commissioner and except upon complaint by any public servant or by a person authorised in this behalf by the Labour Commissioner in writing on the said form.

10. Prosecution.– Any infringement of or refusal or omission to carry out the provisions of this Act or the rules made thereunder by any person may be reported to the Labour Commissioner or to any other officer appointed in this behalf by him by an order in writing for such local limits as may be assigned in the order, for sanction of prosecution or for such other action as he may deem proper to take.

11. Protection of action taken under the Act.– No suit, prosecution or legal proceeding shall lie against any person in respect of anything in good faith done or intended to be done under this Act or the rules made thereunder.

12. Power to make rules.– (i) The [20][[21][* * *] Government] may, after previous publication, make rules[22] for carrying into effect the purposes of this Act.

(ii) In particular and without prejudice to the generality of the foregoing power such rules may provide for–

(a) the form of the service book and the particulars to be entered therein;

(b) the quality of paper and covering page of the service book;

(c) the number of pages of the book;

(d) the time within which any entry in the service book shall be made and the occasions on which a fresh entry shall be made ;

(e) the authorization of persons to manufacture and sell service books on prescribed forms;

(f) the procedure at any investigation and for proceeding before the grant of sanction for prosecution by the Labour Commissioner;

(g) the persons and class of public servants who may be authorised by the Labour Commissioner to make complaints under this Act; and

(h) the manner of calculation of monthly wages.


[1]For Statement of Objects and Reasons, see Gazette of Pakistan, 1951, Pt. V, dated the 23rd November, 1951, pp. 4 and 5, and for Report of Select Committee, see ibid., 1951, Ext., pp.335-339.

This Act was originally in the Federal ambit, however, the subject on which this law was enacted, has devolved to the provinces by virtue of 18th Amendment in the Constitution, hence it was adapted, with amendments, for the province of the Punjab by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[2]Substituted by the Central Laws (Statute Reform) Ordinance, 1960 (21 of 1961), s.3 and 2nd Schedule, for the original sub-section (2) (with effect from the 14th October 1955).

[3]Substituted for the word “Pakistan”, by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[4]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[5]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[6]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[7]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[8]The original cl. (a) as amended by A.O. 1961, Art. 2 and Sch., has been omitted by A.O., 1964, Art. 2 and Sch.

[9]Inserted by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[10]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[11]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[12]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[13]The word “Provincial”, omitted by the Employment (Record of Services) (Amendment) Act, 2011 (XI of 2011).

[14]Substituted by the Employment (Record of Services) (Amendment) Ordinance, 1960 (18 of 1960), s.2, for the original sub-section (2).

[15]Inserted ibid., s.2.

[16]Substituted ibid, and shall be deemed always to have been so substituted.

[17]Added by the Employees (Record of Services) (Amendment) Ordinance 1960 (18 of 1960), s.2.

[18]Substituted for the word “fifty” by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[19]Ibid., for the word “five”.

[20]Substituted by Adaptation Order, 1964, Art. 2 and Schedule, for “appropriate Government”.

[21]The word “Provincial” omitted by the Employment (Record of Services) (Amendment) Act 2011 (XI of 2011).

[22]For the Employment (Record of Services) (Federal Capital) Rules, 1956, see Gazette of Pakistan, 1956, Pt. I, pp.522-527.

Prabhjot Singh Mand and Ors Versus Bhagwant Singh and Ors-29/07/2009

SUPREME COURT OF INDIA JUDGMENTS

A Court while exercising its judicial function would ordinarily not pass an order which would make one of the parties to the lis violate a lawful order passed by another Court

SUPREME COURT OF INDIA

Prabhjot Singh Mand AND OTHERS Versus Bhagwant Singh AND OTHERS

(Before : S. B. Sinha And Cyriac Joseph, JJ.)

Civil Appeal No. 6253 with 6254 and 6255-6259 of 2008, Decided on : 29-07-2009.

Punjab Civil Services (Executive Branch) Rules, 1976—Rules 18, 21 and 20.

Counsel for the Parties:

Raju Ramachandran, P. S. Patwalia, Dr. Rajeev Dhawan, D. V. Sharma, Sr. Advocates, S. Udaya Kumar Sagar, Ms. Rachana Joshi Issar, Ms. Bina Madhavan, Hemal K. Sheth (for Lawyer’s Knit and Co., Gurminder Singh, R. D. Bawa, Dhiraj, Mrs. Reeta Dewan Puri, P.N. Puri, Ajay Pal, Nikhil Jain, Gagan Deep Sharma, Ms. Shikha Roy Pabbi, Ajit Kumar, S. K. Sabharwal, M. Binu Tamta, with them for appearing parties.

Judgment

S. B. Sinha, J—This appeal is directed against an interim order dated 25th March, 2008 passed by a learned single Judge of the Punjab and Haryana High Court whereby and whereunder while issuing notice of motion, the reversion of the first respondent was stayed.

2. The matter has a chequered career. The dispute involved in the present appeals revolves round the seniority between the direct recruits and the promotees. Indisputably, the conditions of service of the employees hereto are governed by the Punjab Civil Services (Executive Branch) Rules, 1976. It repealed and replaced the Rules framed in the year 1930. By reason of 1930 Rules, 68% slots were fixed in the roster for direct recruits. Rule 18 of 1976 Rules, however, provided for 50% of the slots to be filled by direct recruits.

3. The State sent requisition to the Punjab Public Service Commission for filling up the vacancies of 48 officers; 24 by direct recruitment through examination and 24 by nominating officers from the existing services to Punjab Civil Services (PCS). Advertisements were issued by the State of Punjab for direct recruitment to the PCS.

4. However, the said requisition was modified in the year 1982 whereby the number of officers to be selected was raised to 80 wherefor a revised advertisement was also issued. The Promotee Officers were brought into the PCS in the year 1984. Appellants, however, were appointed in the year 1986 by direct recruitment with effect from 1985. Seniority list was finalized in 1993 in respect of the officers appointed to PCS from 1976-1985 wherein the direct recruits who joined in 1986 were not included. Seniority list in respect of officers directly recruited and appointed in 1986 was finalized in 1994 and they were placed below the last officer in the seniority list of 1993.

5. Arvinder Singh Bains, the appellant No. 3 herein, along with one Dipinder Singh filed a writ petition (marked as Writ Petition No. 16516 of 1995) before the Punjab and Haryana High Court questioning the correctness of the said 1994 seniority list. The said writ petition was dismissed. An intra-Court appeal preferred there-against was also dismissed by an order dated 12-12-2000.

6. A Special Leave Petition was filed thereagainst before this Court on which leave was granted by an order dated 3-9-2001 and the appeal was numbered as Civil Appeal No. 6373 of 2001. An interim order was passed to the effect that any action taken would be subject to the outcome of the appeal.

7. An interlocutory application, however, was filed on or about 12-1-2006 marked as I. A. No. 2 of 2006 inter alia praying that no promotion be made to the Indian Administrative Services (I.A.S.) cadre from the cadre of P. C. S. which was dismissed by an order dated 12-1-2006 with the following observations :

“In view of the fact that the order of this Court dated 3rd of September 2001 granting leave unambiguously states that any action taken will be subject to the outcome of the appeal, we do not find that a case for modification thereof is made out.”

8. The said Civil Appeal was allowed by this Court by reason of judgment and order dated 24-5-2006 (since reported in (2006) 6 SCC 673 Arvinder Singh Bains vs. State of Punjab and Ors., inter alia opining :

“37. The appellant is not seeking any antedated promotion. The case of the appellant is that the inter se seniority of 80 officers (40 direct recruits + 40 promotees) should be fixed by applying roster provided for in Rule 18 of the PCS (EB) Rules, 1976 by reading Rules 18 and 21 together.”

9. In arriving at the said finding, this Court took into consideration Rules 7, 8, 18 and 21 of the 1976 Rules.

10. Rule 7 lays down that the appointment to the service shall be made from amongst the accepted candidates whose names have been duly entered in the prescribed Registers. Rule 8 provides for various Registers of accepted candidates, which are in the following terms :

A-I : Tahsildars

A-II : Ministerial employees of the State Government (Classes II and III)

A-III : ETOs/BODs/DDPOs

B : Direct recruits

C : Other government servants

11. Rules 18 and 21 of the 1976 Rules read thus :

“18. Appointment of accepted candidates to the service.- The Government shall make appointments to the service in pursuance of Rule 7 from amongst the candidates entered in the various Registers in a slab of 100 vacancies as follows : (i) the first vacancy and thereafter every alternative vacancy shall be filled from amongst candidates borne on Register ‘B’;

(ii) the 2nd, 8th, 14th, 20th, 26th, 32nd, 38th, 44th, 50th, 56th, 62nd, 68th, 74th, 80th, 86th, 92nd, 96th and 100th vacancies shall be filled from amongst the candidates borne on Register A-I;

(iii) the 4th, 10th, 16th, 22nd, 28th, 34th, 40th, 46th, 52nd, 58th, 64th, 70th, 76th, 82nd, 88th, and 98th vacancies shall be filled from amongst candidates borne on Register A-II;

(iv) the 12th, 30th, 42nd, 54th, 66th, 78th and 90th vacancies shall be filled from amongst the Excise and Taxation Officers accepted as candidates on Register A-III;

(v) the 18th, 36th, 60th and 84th vacancies shall be filled from amongst the District Development and Panchayat Officers or Block Development and Panchayat Officers accepted as candidates on Register A-III; and

(vi) the 6th, 24th, 48th, 72nd and 94th vacancies shall be filled from amongst the candidates on Register ‘C’:”

21. Seniority of the members of the service.- The seniority of officers appointed to the service shall be determined in accordance with the order of their appointment to the service; provided that-

(a) if the order of appointment of any candidate is cancelled under the provisions of Rule 20 and such candidate is subsequently appointed to the service, the order of appointment for the purpose of this rule shall be determined by the date of such subsequent appointment;

(b) if any officer appointed to the service fails to qualify himself for substantive permanent appointment within the prescribed period of probation, the Government may determine whether the date of his appointment for the purpose of this rule shall be postponed by a period not exceeding the period by which such officer’s substantive permanent appointment is delayed beyond the prescribed period of probation;

(c) the persons appointed as a result of earlier selection from a Register shall be senior to those appointed as a result of subsequent selection from the same Register.”

12. It was held that appointment is made in terms of Rule 18 laying down that the first vacancy and thereafter every alternative vacancy shall be filled from amongst the candidates borne on Register ‘B’. In other words, the first officer has to be appointed from Register ‘B’ only. The stand of the State that direct recruits have preference over others was also noticed. In that view of the matter, it was opined that such a procedure must be reflected in the matter of seniority also.

13. This Court held that Rule 18 should be read with Rule 21 for the purpose of determining the seniority. It was held that as the selection process for the promotees was shorter as compared to direct recruits and as the promotees had enjoyed more perks by way of pay etc., the direct recruits should not suffer any injustice in the matter of seniority also especially when both the category of employees were selected against the same requisition sent by the Government to the Punjab Public Service Commission. On the basis of the aforementioned findings, this Court directed :

“59. We have also referred to the decisions rendered by this Court. This Court said rota and quota must necessarily be reflected in the seniority list and any seniority list prepared in violation of rota and quota is bound to be negated. The action of the respondents in determining the seniority is clearly in total disregard of rota quota rule prescribed in Rule 18 of the 1976 Rules. The action is, therefore; clearly contrary to the law laid down by this Court. Thus, we hold :

1. that the action of the State is contrary to the 1976 Rules;

2. the seniority under the 1976 Rules must be based on a collective interpretation of Rule 18 and Rule 21 of the 1976 Rules;

3. the action of the authorities is negation of Rule 18 of the 1976 Rules in determining the seniority by the impugned order. Since the action is contrary to law laid down by this Court, we have no hesitation in allowing the appeal and grant the relief as prayed for by the appellant.”

14. Indisputably, review applications filed by some promotee officers thereagainst was also dismissed by this Court on 17-8-2006.

15. Inter alia, on the premise that the State has failed and/or neglected to the time frame for revising the seniority list, a Contempt Petition marked as Contempt Petition (C) No. 214 of 2006 was filed on or about 15-10-2006. Thereafter, a tentative seniority list was prepared on 15-12-2006. A final seniority list was prepared on 4-4-2007 in terms whereof all the direct recruits (appellants) were placed before the first respondent.

16. On or about 26-4-2007, the State Government forwarded a proposal to the Union Public Service Commission (U. P. S. C.) to call a meeting of the Review Selection Committee to review the select lists prepared for promotion to I. A. S. from the P. C. S. for the years 1998-2006.

17. This Court by an order dated 20-8-2007 while dismissing the contempt petition observed as under :

“Despite the dismissal of the contempt petition it is expected that the Union Public Service Commission should hold the meeting pursuant to the direction of this Court.”

18. On or about 12-10-2007, the State Government wrote to the U. P. S. C. that it had been decided to review the select lists from 1992-1993 onwards for the purpose of appointment to the I. A. S. cadre. A second round of litigation thereafter started as some promotees including the first respondent filed writ petitions against the final seniority list of 2007 raising almost similar grounds which had been taken in the review petitions filed before this Court. An interim order was passed in the said writ petitions on 15-10-2007 directing that the selection process would go on but the writ petitioners therein would not be reverted till further orders. Evidently, in view of such order of stay, the direct recruits could not be promoted to IAS Cadre.

19. U. P. S. C. reviewed the select list from 1992 to 2006. It was found by the Committee that six officers were eligible for promotion under the new seniority list and made recommendations to the same effect. Six officers who were promoted on the basis of the incorrect seniority list, and subject to the final outcome of the decision in Arvinder Singh Bains (supra, were required to be reverted as either they had become over aged or too junior. Respondent No. 1 was one of them. The respondent No. 1, however, filed an application marked as O. A. No. 185 of 2008 before the Central Administrative Tribunal at Chandigarh, inter alia, praying for the following reliefs : “1. Summon the records of the case and after perusal of the same quash the selection made of Respondent Nos. 4 to 9 to the Indian Administrative Service by conducting review DPC held on 25-2-2008 for the period 1992 to 2006, without determining the vacancies, afresh as the applicant along with others was promoted to the IAS from PCS on the basis of seniority list determined in 1993 and the applicant and others were appointed and are still holding the post of Indian Administrative Service, with further direction to the officials Respondent not to appoint the selected candidates from Sr. Nos. 4 to 9, as IAS against the posts against which the applicant and others are working.

2. Direct the Respondents to grant the benefit of the Judgment of Hon’ble Supreme Court of India in Arvinder Singh Bains’ case only to the applicant therein, if it is admissible to him, and not the private respondents who never challenged the seniority of the applicant settled in 1993 and 1994.”

20. By an order dated 18-3-2008, the Central Administrative Tribunal, Chandigarh while issuing notice directed that the promotions made to the I. A. S. would be subject to the final outcome of the said O. A.

21. The first respondent filed a writ petition against the said order before the High Court. The High Court by reason of an Order dated 25-3-2008 granted stay on the reversion of the first respondent although no such prayer was made in the original application. It is the said order which is being impugned herein.

22. Before, however, adverting to the propriety and/or legality of the said order dated 25-3-2008, we may notice that on an application filed by the State Government for vacation of stay granted on 15-10-2007 in C. W. P. No. 6857 of 2007, the High Court, by its order dated 3-4-2008, modified its interim order dated 15-10-2007 to the effect that the same would not affect the right of six persons who have been found eligible to be promoted to the I. A. S. and recommended by the U. P. S. C. on or about 25-2-2007. However, no order of appointment has been issued to that effect.

23. Two direct recruits recommended for promotion to the I. A. S. have also filed Special Leave Petition before this Court against the said interim order dated 3-4-2008.

24. The stand of the Union of India in the matter appears to be that the said order is an obstacle in the matter of implementation of the judgment of this Court in Arvinder Singh Bains (supra) as the order of revision has been stayed.

25. We may also furthermore place on record that the applications were filed in Writ Petition No. 4806-CAT of 2008 for vacation of the interim order which appears to have been withdrawn in view of the Special Leave Petition filed herein. We have, however, heretobefore noticed that one Special Leave Petition was dismissed by this Court with which we are not concerned hereat.

26. The stand of the appellants as also the State of Punjab is that the matter in regard to the interpretation of 1976 Rules as regards seniority between direct recruits and promotees having been finally determined by this Court in Arvinder Singh Bains (supra) wherein the relevant Rules have been interpreted, the High Court could not have granted an order of stay.

27. Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of the respondent No. 1, on the other hand, would contend that the first respondent being not a party to the litigation and he having been appointed in December 1984, the decision of this Court in Arvinder Singh Bains (supra) would not be binding on him. It was contended that as the relief has been granted only to the appellant therein and keeping in view the fact that the seniority list dated 19-3-1993 having not been challenged, the High Court could have granted an order of stay.

28. This Court passed an order dated 22-10-2008 in the present appeals which reads thus :

“Leave is granted in all the SLPs.

The Union of India and the Union Public Service Commission are parties before us. Although the Union of India has filed counter affidavit, nobody has appeared on its behalf. The Union Public Service Commission is represented by Ms. Binu Tamta.

Heard the learned counsel for the parties quite at length.

As all these appeals are preferred against the interim order passed by the High Court of Punjab and Haryana at Chandigarh, being orders dated 25-3-2008, 3-4-2008 and 10-4-2008 and having regard to the fact that a large number of contentions have been raised before us, we are of the opinion that the operative portion of the judgment may be pronounced here and now. Detailed reasons therefor, however, would be assigned later on.

‘(1) The appeals are allowed, modifying the impugned orders of the High Court to the following extent :

(a) That portion of the impugned orders whereby and whereunder the High Court has stayed the reversion of the writ petitioners, who are respondents in these appeals, shall stand vacated. However, they shall be adjusted against any of the 12 vacancies which are stated to be existing and in respect of which steps are being taken to send requisition to the Union of India for making appointment. The writ petitioners-respondents will be entitled to continue against those vacancies only till appointment against those vacancies notified by the Union of India.

(b) The appellants before us must be appointed to the cadre of IAS in terms of the seniority list dated 4th April, 2007.

(c) The above directions shall, however, be subject to the ultimate result of the writ petitions which are pending before the High Court.

(2) We in exercise of our jurisdiction under Article 142 of the Constitution of India, further direct the State of Punjab to send the requisition for filling up all the above mentioned 12 vacancies in the cadre of IAS, to the Union of India and the Union Public Service Commission, as expeditiously as possible and preferably within a period of three weeks from today. Both Union of India and Union Public Service Commission are hereby directed to consider the requisition sent by the State of Punjab in respect of the aforementioned 12 vacancies as expeditiously as possible and preferably within a period of 16 weeks from the date of communication of the requisition.

(3) We would request the High Court to consider the desirability of disposing of the pending writ petitions as expeditiously as possible, preferably within a period of three weeks from today.”

29. The question as to whether the promotee officers who have filed original application before the Central Administrative Tribunal would be entitled to obtain any relief awaits consideration. At the outset, we may observe that the High Court could not have passed an interim order which had a serious civil consequence so far as the appellants are concerned and that too without giving any opportunity of hearing to them. If the contention raised before us that the original applications did not pray for stay of reversion is correct, in our opinion, the High Court ought not to have passed the impugned order. It is one thing to say that judgment delivered by this Court in Arvinder Singh Bains (supra) is not a judgment in rem but prima facie this Court has interpreted the Rules, which would be a law declared in terms of Article 141 of the Constitution of India. The High Court before arriving at a finding that the first respondent would be entitled to be promoted to the cadre of Indian Administrative Service, in our considered opinion, should have bestowed serious consideration in regard to the implementation of the said judgment and the effect thereof. It was for the said purpose, the High Court should have assigned some reasons in Suppl ort of its order. We need not delve upon the said question in great detail. But it is beyond any cavil of doubt that before passing an interim order, the Courts should not consider prima facie case, balance of convenience, and irreparable injury but also its effect on public interest also. The public interest demands that the process should be continued. The Rules have been interpreted by this Court in Arvinder Singh Bains (supra, and review petition filed thereagainst had been dismissed. In the said review application, contentions have been raised which are similar to the ones raised by the first respondent in his original application. Furthermore, although this Court dismissed the contempt application by an order dated 20-8-2007 by making certain observations, the same should have been given effect to. We are not unmindful of the fact that in these matters not only the seniority list but also the selection process has been under challenge. But, as noticed hereinbefore, no interim relief qua reversion has been sought for.

30. This Court in M. Gurudas vs. Rasaranjan ((2006) 8 SCC 367 opined :

“21. While considering the question of granting an order of injunction one way or the other, evidently, the Court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only a mere triable issue.”

31. The Tribunal refused to pass an interim order but observed that any action taken would be subject to ultimate result of the original application. Thus, in a situation of this nature, the High Court should have considered the question as to whether the respondent No. I had any prima facie case or is there any balance of convenience in his favour. It is not a case where the dispute is between the private parties. Appointment to the cadre of I.A.S. is a matter of public interest. An interim order involving public interest in public law cases must receive different considerations.

32. The effect of the interim order vis-a-vis the clarificatory order passed by the High Court in the earlier writ application resulted in a piquant situation in the sense that whereas the appellants were entitled to be promoted to I.A.S., the Union of India in their counter affidavit raised the questions of difficulties contending that unless the posts fall vacant, no appointment therein could be made. It may be true that when an employee is reverted to a lower post, he would suffer civil consequences but then it was necessary not only in public interest, but also to give effect to the doctrine of comity and/or amity. The appellants were entitled to be promoted as of right subject to the result of writ petition. They could not be denied promotion by another interim order passed in favour of the first respondent directing that they could not be reverted as a result whereof the vacancy would not occur.

33. (See Transmission Corpn. of A.P. Ltd. vs. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540

34. This Court in India Household and Healthcare Ltd. vs. L.G. Household and Healthcare Ltd. (2007) 5 SCC 510 noticed :

“17. This aspect of the matter has been considered in A. Treatise on the Law Governing Injunctions by Spelling and Lewis wherein it is stated :

“Section 8. Conflict and loss of jurisdiction. – Where a Court having general jurisdiction and having acquired jurisdiction of the subject matter has issued an injunction, a Court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction. There is no established rule of exclusion which would deprive a Court of jurisdiction to issue an injunction because of the issuance of an injunction between the same parties appertaining to the same subject-matter, but there is what may properly be termed a judicial comity on the subject. And even where it is a case of one Court having refused to grant an injunction, while such refusal does not exclude another coordinate Court or Judge from the jurisdiction, yet the granting of the injunction by a second Judge may lead to complications and retaliatory action….”

**********

19. A Court while exercising its judicial function would ordinarily not pass an order which would make one of the parties to the lis violate a lawful order passed by another Court”.

35. The impugned interim order clearly violates the aforementioned rule.

36. We, therefore, need not consider the question as to whether the rosters are different or whether the State and/or the Commission were correct in preparing the select lists. We may, however, at this stage, only notice that this Court issued direction to prepare a new seniority list. We need not also go into the questions raised by the learned counsel appearing on behalf of the respondents that the appellants were not entitled to any relief on the ground of laches or delay on their part. We may, however, observe that this Court in Arvinder Singh Bains (supra) did not issue any direction and/or any specific indication that the said decision would be confined to the petitioners therein only.

37. We were, however, informed at the bar that 12 vacancies existed. Only in that view of the matter directions were issued to consider the cases of the respondents for promotion to the cadre of I.A.S. against any of those vacancies if they are found ultimately eligible therefor. It is only with that in view, we had in exercise of our jurisdiction under Article 142 of the Constitution of India directed the Union of India to make requisition therefor. We may furthermore observe that we have not gone into some other questions which have been raised at the bar as no observation made therein may prejudice one of the parties hereto.

38. The above are the reasons in Suppl ort of our order dated 22-10-2008.


AIR 2009 SCW 5548 : JT 2009 (10) SC 190 : (2009) 10 SCALE 316

Article 142 of the Constitution of India cannot be exercised to supplant the statutory provision 

SUPREME COURT OF INDIA JUDGMENTS

Anupal Singh and Others Vs. State of U.P through Principal Secretary, Personnel Department and Others-30/09/2019

Article 142 of the Constitution of India confers wide power upon the Supreme Court to do complete justice between the parties. Though the powers conferred on the Supreme Court by Article 142 are very wide, the same cannot be exercised to pass an order inconsistent with express statutory provisions of substantive law. In Ramji Veerji Patel and Others v. Revenue Divisional Officer and Others (2011) 10 SCC 643, the Supreme Court held that the power under Article 142 of the Constitution of India is to be exercised very carefully and sparingly. The power under Article 142 of the Constitution of India can be exercised so as to do complete justice between the parties. However, as held in Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409, though the power under Article 142 of the Constitution are plenary in nature, the same cannot be construed to mean that the power can be used to supplant the substantive law applicable to the case.

BRIEF: The Uttar Pradesh Public Service Commission issued an advertisement No.A-5, E-1/2013 dated 22.10.2013 inviting applications for 6628 vacancies of Subordinate Agriculture Services, Cadre-lll (Technical Assistant Group-C).

ACTS: Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 / UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993)/Article 141,142 of the Constitution.

SUPREME COURT OF INDIA

Anupal Singh and Others Vs. State of Uttar Pradesh through Principal Secretary, Personnel Department and Others – 30/09/2019

[Civil Appeal No.4815 of 2019] and with see below

R. BANUMATHI, J.

These appeals arise out of the judgment dated 10.02.2017 in Writ-C No.34196 of 2015 and batch matters passed by the High Court of Judicature at Allahabad in and by which the High Court while upholding the result of written examination for the post of Technical Assistant-Group-C Agriculture Department, quashed selection process subsequent to the written examination and directed the Principal Secretary, State of U.P. to send requisition to the Uttar Pradesh Public Service Commission on the basis of quantifiable data and cadre strength as well as actual persons working in different categories so that the interview may be conducted afresh and complete the selection.

2. Brief facts which led to filing of these appeals are as under:-

The Uttar Pradesh Public Service Commission issued an advertisement No.A-5, E-1/2013 dated 22.10.2013 inviting applications for 6628 vacancies of Subordinate Agriculture Services, Cadre-lll (Technical Assistant Group-C). In the said advertisement for the total requisitioned 6628 vacancies, category-wise vacancies are as under:-

Advertisement Number

Vacancies in Subordinate Agriculture Services, Cadre- III (Technical Assistant Group-C) Advt. No. A-5, E-1/2013 dt. 22.10.2013

Total vacancies:

Unreserved

SC

ST

OBC

6628

3616

2211

235

566

Horizontal reservation in original advertisement is as under:-

Women

Handicapped

Dependents of Freedom Fighter

Ex-servicemen

1325

253

132

331

The appellants as well as the private respondents applied for and appeared in the written examination held on 30.03.2014. As per the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short “UP Reservation Act, 1994”), specific percentages of vacancies have been reserved for different categories viz.,

(a) in the case of Scheduled Castes – 21%

(b) in the case of Scheduled Tribes – 2% and

(c) in the case of OBC-27%.

It was brought to the notice of the State Government that there was wrongful calculation of categorywise vacancies in the earlier requisition and therefore, the earlier requisition was required to be revised. After a detailed inquiry as to the cadre strength of Technical Assistant – Group C and the actual working strength of persons in different categories, it was found that initially the number of requisitioned candidates in the category of General/Unreserved and OBC were wrongly calculated. It was noticed that the diploma holders who were required to be appointed against “Unreserved quota”; but were wrongly appointed against the “OBC quota” and the same was to be rectified. According to the State, after adjustment of diploma holders against “General Category” and in order to fulfill the requirements of constitutional and statutory mandate of reservation, the State Government has reworked the vacancies for different categories of persons and sent the revised requisition for the vacancies for different categories.

The State Government after taking opinion of the Department of Personnel vide its order dated 20.08.2014 approved the revised vacancies for different categories of persons in accordance with the applicable reservation rules and accordingly, revised the requisition. Based on the said order dated 20.08.2014, Department of Agriculture vide its letter No.AC/101 dated 20.08.2014 sent the revised requisition for 6628 posts to the UP Public Service Commission as under:-

Advertisement Number

Vacancies in Subordinate Agriculture Services, Cadre-III (Technical Assistant Group-C) Government Order No.941/12- 4-14-1992/2014 dt. 20.08.2014

Total vacancies:

Unreserved

SC

ST

OBC

6628

2515

1882

201

2030

Horizontal reservation in amended requisition is as under: Women Handicapped Dependents of Freedom Fighter Ex-servicemen 1325 252 132 330 Based upon the above revised requisition, on 15.09.2014, UP Public Service Commission declared the result of the written examination wherein, both the appellants as well as the private respondents were declared successful. After declaration of the result of written examination, the UP Public Service Commission issued an Office Memorandum dated 12.10.2014 notifying 2515 posts for Unreserved/General category; 1882 posts for SC category; 201 posts for ST category and 2030 posts for OBC category in consonance with the government order dated 20.08.2014. The successful candidates who cleared the written examination appeared for interview held from 27.10.2014 onwards. Finally, when the result of select list candidates was declared on 21.05.2015, the private respondents did not qualify.

3. Number of writ petitions came to be filed before the High Court by the unsuccessful candidates against respondents No.1 to 4 and by impleading some of the successful candidates assailing the validity of the Office Memorandum dated 12.10.2014 and the result declared on 21.05.2015 praying that they be quashed. They further prayed for direction to respondents No.1 to 4 to prepare the result afresh without giving effect to Office Memorandum dated 12.10.2014. It was contended that change in the number of vacancies in different categories is illegal and the same amounts to changing the rules of the game in the middle of the selection process. The impugned result was also assailed on the ground that it is in contravention to Section 3(1) of UP Reservation Act, 1994 and Rule 15(3) of UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993) and that the percentage of reservation to SC/ST and OBC categories crossed the upper limit of 50%.

4. After referring to decisions on the aspect of reservation, vide the impugned judgment, the High Court allowed the writ petitions inter alia holding as under:-

  • The entire maneuvering in the instant case has taken place in the garb of diploma holders wherein, 1749 diploma holders in the department were adjusted/regularized in the year 1998. Even at the time of their regularization, their heads were counted and the same is reflected from their regularization orders and once their heads were already counted qua their respective categories and reserved category of persons especially OBC adequately represented, there was no occasion for putting all the diploma holders against the open category.
  • After the declaration of result of written examination on 15.09.2014, changing the number of vacancies for different categories amounts to violation of Rule 15(3) of Agriculture Service Rules, 1993 during the pendency of the advertisement and thus, depriving 3303 general category candidates even to appear in the interview and allowing 4392 more candidates of OBC category to appear for interview by bringing them in the zone of consideration for the selection, amounts to changing the rule of the game during the process of selection.
  • The Commission declared the final result on 21.05.2015 wherein, 88% candidates belonging to reserved categories have been shown to be selected whereas, only 12% candidates under open category have been selected and the entire selection is in contravention to Section 3(1) of UP Reservation Act, 1994 and the Rule 15(3) of the Agriculture Service Rules, 1993.

On the above findings and other reasonings, the High court allowed the writ petitions by holding that subsequent to the declaration of the result of written examination, the entire selection is vitiated and as such, the same cannot be sustained. Placing reliance upon Union of India and Others v. O. Chakradhar (2002) 3 SCC 146, the High Court held that when the court comes to the conclusion that the selection is tainted, there is no necessity to serve individual notices and as such, the entire selection can be cancelled. The High Court issued a direction to the Principal Secretary, Government of U.P. to send a fresh requisition to the UP Public Service Commission on the basis of quantifiable data, existing strength of cadre as well as the actual persons working in different categories forthwith so that interview be conducted at the earliest and that the entire exercise be completed within four months.

5. Being aggrieved by the impugned judgment, the appellants who are the selected candidates and have already joined their respective posts have filed these appeals before this Court. Vide order dated 03.03.2017, this Court ordered to maintain status-quo as existing on the said date.

6. The batch of appeals were heard at length and the hearing stretched over number of dates. We have heard Mr. P.S. Patwalia, learned Senior counsel, Mr. M. Karpaga Vinayagam learned Senior counsel, Mr. Guru Krishna Kumar, learned Senior counsel, Ms. Mahalakshmi Pavani, learned Senior counsel, Ms. Vibha Datta Makhija, learned Senior counsel, Mr. Mehul M. Gupta, learned counsel and Mr. A. Subba Rao, learned counsel appearing on behalf of the appellants. We have heard Mr. S.R. Singh, learned Senior counsel appearing on behalf of respondent-State. We have also heard Mr. Alok Mishra, learned counsel, Mr. K. Parmeshwar, learned counsel, Mr. Anil Nauriya, learned counsel, Ms. Sumita Hazarika, learned counsel and Mr. Dinesh Kumar Tiwary, learned counsel appearing on behalf of the applicants-respondents.

Contentions of the appellants

7. Mr. P.S. Patwalia, Senior Counsel: Contending that the revised requisition was in accordance with the provisions of UP Reservation Act, 1994, the learned Senior counsel submitted that there are no allegations of malafide/arbitrariness to vitiate the selection process. It was submitted that based on the complaint received by the State Backward Class Commission, the Department of Agriculture has undertaken an exercise and found that there was wrongful calculation of the category-wise vacancy and the earlier requisition was required to be rectified. Learned Senior counsel submitted that the revised Office Memorandum of the UP Public Service Commission dated 12.10.2014 is based on the revised requisition of the Department of Agriculture dated 20.08.2014 and only the breakup of vacancies category-wise has been reworked and revised and while so, the High Court erred in saying that the rules of the game had been changed in the midst of the selection process vitiating the selection.

It was submitted that the eligibility criteria have not been changed at all and the High Court erred in relying upon K. Manjusree v. State of Andhra Pradesh and another (2008) 3 SCC 512 and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC 11 for setting aside the process of selection from the stage of declaration of result of the written examination. Learned Senior counsel further submitted that the private respondents/intervenors having participated in the interview and having found that they are unsuccessful, have filed the writ petitions and they are estopped from challenging the Office Memorandum dated 12.10.2014 and the selection process.

8. Mr. M. Karpaga Vinayagam, Senior Counsel: Learned Senior counsel submitted that the revised Office Memorandum of UP Public Service Commission dated 12.10.2014 was based upon the revised requisition sent by the Department of Agriculture dated 20.08.2014 and only when the private respondents found themselves unsuccessful, they chose to challenge the Office Memorandum dated 12.10.2014. Learned Senior counsel further submitted that the private respondents have not raised any protest over the change in number of vacancies and the appellants having been selected and presently working, great prejudice would be caused to them if the entire selection process is set aside.

9. Mr. Guru Krishna Kumar, Senior Counsel: Learned Senior Counsel submitted that the State has filed detailed counter affidavit explaining the reason for revised requisition and that the same was done only to fulfill the constitutional mandate of reservation and the statutory provisions in UP Reservation Act, 1994. The High Court has not considered this aspect in proper perspective. Learned Senior counsel further submitted that the private respondents have not shown as to how they are affected by the increase in number of posts for OBCs. It was contended that non-impleading of successful parties in the writ petition is fatal and the High Court was wrong in saying that impleading of some of the successful candidates would be enough. Learned Senior counsel further contended that the rules of the game was not changed and only the category-wise vacancies were changed and the Government has the power to rectify the requisite number of vacancies in order to fulfill the constitutional mandate of reservation and the provisions of UP Reservation Act, 1994.

10. Ms. Mahalakshmi Pavani, Senior Counsel: Reiterating the above submissions, learned Senior counsel submitted that the eligibility criteria for selection of Technical Assistant – Group C has not been changed at all; but only the breakup of vacancies category-wise has been reworked and the High Court was not right in setting aside the selection of the appellants. It was submitted that the successful candidates have been working for more than three years and their selection and appointment are based on merit in different categories and the entire selection cannot be set aside upsetting the entire process.

11. Ms. Vibha Datta Makhija, Senior Counsel: Reiterating the above submissions, learned Senior counsel contended that after issuing earlier requisition dated 03.10.2012, department has undertaken an exercise and found that there was wrongful calculation of category-wise vacancies. It was further contended that a complaint was made before the Backward Classes Commission and after the complaint, on direction from the State Government, the Department of Agriculture has undertaken the exercise and found that there was wrongful calculation of the category-wise vacancy and the earlier requisition was thus required to be rectified. It was submitted that when there is no allegation of mala fide/arbitrariness, the entire selection process cannot be set aside.

12. Mr. Mehul M. Gupta and Mr. A. Subba Rao, learned counsel have also reiterated the above submissions and inter alia made their contentions. Mr. Mehul M. Gupta prayed to exercise the power under Article 142 of the Constitution of India to issue appointment orders to 906 candidates.

Contentions of the State

13. Mr. S.R. Singh, Senior counsel: Taking us through the detailed counter affidavit filed by the State, learned Senior counsel has submitted that the High Court was not right in holding that the revised requisition as amounting to changing the rules of the game during the process of selection. Learned Senior counsel has submitted that mere rectification of mistake in the calculation of vacancies category-wise before commencement of interview would not amount to changing the rules of the game during the process of selection. Learned Senior counsel also made elaborate submissions as to the absorption of diploma holders against the posts meant for “General quota”. It was submitted that to keep the appointments within the permissible statutory limits, the appointments were issued only to 6599 candidates and 29 candidates withheld for want of details. It was submitted that 906 candidates were not given appointments as it would be beyond the permissible statutory limit of reservation under the UP Reservation Act, 1994.

Contention of the private respondents

14. Mr. Alok Mishra, learned counsel: Learned counsel submitted that changing the number of vacancies category-wise is in violation of the statutory provisions and Rule 15(3) of the Agriculture Service Rules, 1993 and also the constitutional mandate was infringed and by revising the number of posts in the various categories, substantial number of candidates were illegally deprived of the opportunities to appear in the interview. It was contended that Office Memorandum dated 12.10.2014 changing the number of vacancies category-wise suffers from vice of arbitrariness and the High Court rightly held that the rules of the game were changed during the process of selection and the High Court rightly set aside the selection of the appellants directing holding of interview afresh based on the quantifiable date collected and taking into account the cadre strength and the actual working strength. Learned counsel further submitted that since the rules were violated and the constitutional mandate was infringed, as held in Union of India and others v. O. Chakradhar (2002) 3 SCC 146, individual notices were not required to be sent to the selected candidates and non-issuance of notice to individual selected candidates will not affect the correctness of the impugned judgment.

15. Mr. K. Parameshwar, learned counsel: Learned counsel submitted that challenging the Office Memorandum dated 12.10.2014 issued by the UP Public Service Commission and also the selection process and the final selection list, number of writ petitions were filed and the appellants have challenged the judgment in the lead case in WP (C) No.34196 of 2015 and in the other writ petitions viz. WP(C) No.38399/2015, WP(C)No.45822/2015, WP(C) No.47894/2015, WP(C) No.50878/2015 and SPLAD No.283/2016 and the appellants have not chosen to challenge the judgment passed in number of other writ petitions remaining unchallenged and operate as res judicata. In support of his contention, learned counsel placed reliance upon Sri Gangai Vinayagar Temple and Another v. Meenakashi Ammal and Others (2015) 3 SCC 624. Insofar as horizontal reservation, the learned counsel further submitted that wherever the candidates for horizontal reservation were not available, they were filled up with the candidates with the vertical reservation which is not in accordance with law and the consistent view taken by the Supreme Court. The learned counsel submitted that considering number of irregularities in the selection process, the High Court rightly set aside the selection process subsequent to the stage of declaration of written examination and the impugned judgment warrants no interference.

16. Mr. Anil Nauriya, learned counsel submitted that the terms and conditions for the selection were set out in the advertisement and the rights of the candidates for selection to be considered in accordance with the rules as they existed on the date of the advertisement and not by the subsequent events. In support of his contention, the learned counsel placed reliance upon N.T. Devin Katti and others v. Karnataka Public Service Commission and others (1990) 3 SCC 157. The learned counsel further submitted that by the adjustment of diploma holders against the “general quota”, the State erred in revising the requisition of the vacancies in different categories which prejudicially affect the interest of the candidates who appeared in the examination and passed in the written examination and the High Court rightly set aside the selection process subsequent to the stage of declaration of the written examination. Reliance was placed upon Government of India through Secretary and another v. Ravi Prakash Gupta and another (2010) 7 SCC 626.

17. Mr. Dinesh Kumar Tiwary, learned counsel: Drawing our attention to Uttar Pradesh State Public Service Commission (Regulation of Procedure and Conduct of Business) Act, 1974, the learned counsel submitted that the conduct of business by the UP Public Service Commission shall be strictly in accordance with the provisions and the revised Office Memorandum dated 12.10.2014 changing the number of vacancies in different categories is unsustainable and the High Court rightly set aside the same and directed the selection process to be continued and directed the State to send requisition to the UP Public Service Commission on the basis of quantifiable data and cadre strength as well as actual persons working in different categories. Reliance was placed upon K. Manjusree.

18. Upon consideration of the above submissions and the impugned judgment and other materials on record, the following points arise for determination:-

(i) Whether the revised requisition dated 20.08.2014 and the office memorandum of UP Public Service Commission dated 12.10.2014 is only rectification of wrongful calculation of category-wise vacancies?

(ii) Whether the revised Office Memorandum dated 12.10.2014 suffers from arbitrariness as contended by the respondents?

(iii) Whether the office memorandum dated 12.10.2014 revising the breakup of vacancies would amount to change in the rules of the game during the process of selection?

(iv) Having had full knowledge of revising the category-wise vacancies and having consciously participated in the interview, whether the unsuccessful candidates-private respondents-intervenors are estopped from challenging the selection of the successful candidates?

(v) When the regularization of diploma holders was not under challenge in the writ petitions filed in the year 2015, whether the High Court was right in going into the legality of the regularization of the diploma holders and recording an adverse finding regarding the absorption of the diploma holders against the General quota?

(vi) Whether revised requisition of the number of vacancies category-wise has caused prejudice to the General/Unreserved category candidates as contended by the respondents?

(vii) Whether 906 candidates are entitled to seek for direction for issuance of appointment orders? Revised requisition dated 20.08.2014 and Office Memorandum dated 12.10.2014 notifying revised vacancies in different categories – in consonance with the provisions of UP Reservation Act, 1994 and UP Subordinate Agriculture Service Rules, 1993 (UP Service Rules, 1993)

19. The posts of Technical Assistant Grade-III are Class-III Posts which are governed under the Agriculture Service Rules, 1993. The posts were restructured with effect from 25.10.2007. The pay scale of the aforesaid posts was fixed as Rs.3200-4900 and the total number of sanctioned posts of Technical Assistant Grade-III was 10,531. After restructure of the posts, the details of the vacancies were worked out in which it was found that 10,531 posts were sanctioned out of which 5,860 persons were working. On that ground, the total vacancies were determined as 4,671; after making deduction of 2% as per Government Order dated 05.03.2002, the total vacant posts were shown as 4,578 and the requisition was sent to the UP Public Service Commission on 03.10.2012. Subsequently, the number of posts were increased by 2,092 out of which, as per Government Order dated 05.03.2002, 2% had been deducted and vide requisition dated 30.04.2013, a requisition was sent showing the increased vacant posts as 2,050 out of which total number of vacancies against the OBC quota was shown as 554. In the earlier requisition dated 03.10.2012, the total number of vacancies against the OBC quota were shown as 12. Thus, after sending the second requisition, total number of vacancies against the OBC quota were shown as 554 + 12 = 566.

20. The Department of Agriculture to fill up the existing vacancies of the year 2013 determined the vacancies and sent it to the State Government. Accordingly, the State Government sent the requisition to the UP Public Service Commission showing total number of posts as 6,628 out of which 3,616 posts were shown against the General quota, 2,211 posts shown against the Scheduled Castes, 235 posts reserved for the Scheduled Tribes and 566 posts were figured out against Other Backward Classes and accordingly, UP Public Service Commission published the advertisement dated 22.10.2013.

21. After the publication of the vacancies, a complaint was filed before the Backward Classes Commission, UP complaining that instead of showing actual vacancies of the reserved category of Other Backward Classes, 566 posts have been shown in the advertisement. On such complaint, the Department of Agriculture as well as UP Public Service Commission were called upon to reply to the aforesaid complaint. It was thereafter, the Agriculture Department undertook an exercise and found that on account of wrongful calculation of the category-wise vacancy, the earlier requisition was required to be rectified. After undertaking the exercise as directed by the Authority, it was found that the total number of “General category” candidates was wrongly figured out and shown as 2,622; while in fact 1,749 employees (979 OBC and 770 Others) who were absorbed on account of having a diploma from the Government Agriculture School during the years 1981 to 1987, were also required to be counted against the “General category”.

22. The Government Agriculture School, Bulandshahar, Government Agriculture School, Chargawan-Garakhpur and Government Agriculture School, Jhansi were run by the Agriculture Department. The schools were providing certificate of two years in Krishi Prasar Diploma and the persons undertaking aforesaid diploma during 1981 to 1987 were required to be appointed directly without any selection. However, after enforcement of the Agriculture Service Rules, 1993 since the diploma holder of 1981 to 1987 could not be appointed, the Directorate has sought guidelines from the State Government vide its letter dated 22.01.1998.

The State Government vide its letter dated 04.06.1998 granted the relaxation and directed the appointment of Agriculture Diploma Holders who were 1822 in number, out of which 1749 had joined up to 1998. Since at the time of determination of the vacancy, the OBC category persons appointed on the basis of the Agriculture Diploma Holders Certificate were also counted against the vacancy in OBC category while they were not required to be counted against the OBC category, the wrongful calculation had been arrived at. The earlier requisition sent showing only 566 vacancies against the “OBC quota” while in fact it should have been 2030, as all the diploma holders were appointed against the “General quota” and they have not been appointed against the “OBC quota”. According to the department, subsequent requisition was merely a rectification of the earlier mistake. On the date of advertisement, the actual vacancies of OBC was 2030 but on account of wrongful calculation by the department, it was advertised as 566.

23. It is thus due to the wrongful calculation of OBC quota, the earlier requisition was sent showing the vacancies against OBC quota as only 566; while in fact vacant posts against OBC quota should be 2030. It is in this context, the Department of Agriculture has reworked the vacancy against various categories and sent the revised requisition as under:-

Total number of sanctioned posts

50% General Category

21% Scheduled Caste

2% Scheduled Tribe

27% Other Backward Classes

10559

5280

2217

211

2851

Employees working – 3796

2713

297

6

780

Vacant – 6763

2567

1920

205

2071

After 2% deduction as per Government Order – 6628

2515

1882

201

2030

24. After taking the opinion of the Personnel Department, the first respondent vide order dated 20.08.2014 approved the vacancies for different categories of persons in accordance with the applicable Agriculture Service Rules and sent the revised requisition as under:-

Advertisement Number

Vacancies in Subordinate Agriculture Services, Cadre-III (Technical Assistant Group-C) Government Order No.941/12- 4-14-1992/2014 dt. 20.08.2014

Total vacancies:

Unreserved

SC

ST

OBC

6628

2515

1882

201

2030

On the basis of the above government order dated 20.08.2014, the Department of Agriculture vide its letter No. AC/101 dated 20.08.2014 sent the above revised requisition to the UP Public Service Commission. According to the State, the category-wise vacancy position was changed only after a meeting was held of all concerned i.e. representatives of the Karmik Department as well as the representatives of the Administrative Department and it was found that a wrongful calculation of category-wise vacancy had been sent earlier which was likely to result in anomalies in the total representation of each category in total cadre strength of Technical Assistant Grade-III in the Agriculture Department. Hence, revised requisition was sent on 20.08.2014 from the Administrative Department to the Director, Agriculture who in turn was directed to communicate the same to the UP Public Service Commission.

25. The result of the written examination published on 15.09.2014 was only based on the above revised requisition. The declaration of result of the written examination was issued based on the revised requisition of the posts. The UP Public Service Commission acted on the revised requisition of the Government dated 20.08.2014. Before the candidates were called for interview, Office Memorandum dated 12.10.2014 was issued by the UP Public Service Commission revising the number of vacancies for different categories. The UP Public Service Commission has thus not travelled beyond the requisition sent by the Government.

26. By the revised requisition, the State endeavoured to achieve the object of reservation as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The original advertisement was for ‘3616’ posts against “Unreserved (UR) quota” and only ‘566’ against “OBC quota” which was far less than the requisite percentage for OBC. As per Section 3(1) of UP Reservation Act, 1994, specific percentage of vacancies have been reserved for different categories. Section 3 of the UP Reservation Act, 1994 reads as under:-

“3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes:-

(1) In public services and posts, there shall be reservation at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5), in favour of the persons, belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens:-

a. In the case of Scheduled Castes – twenty-one per cent;

b. In the case of Scheduled Tribes – two per cent;

c. In the case of Other Backward Classes of citizens – twenty-seven per cent Provided that reservation under clause

(c) shall not apply to the category of Other Backward Classes of the citizens specified in Scheduled-II. Provided further that the reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment of to be made.

(2) If in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section

(1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of the year notwithstanding anything to the contrary contained in sub-section (1). ……”

27. Section 4 of the UP Reservation Act, 1994 imposes responsibility and powers upon the competent authority for compliance of the Act. Section 4 reads as under:-

“4. Responsibility and powers for compliance of the Act.- (1) The State Government may by notified order, entrust the appointing authority or any officer or employee with the responsibility of ensuring the compliance of the provisions of this Act. (2) The State Government may in the like manner, invest the appointing authority or officer or employee referred to in sub-section (1) with such powers or authority as may be necessary for effectively discharging the responsibility entrusted to him under sub-section (1).

28. Section 5 of the UP Reservation Act, 1994 is the penal provisions. Section 5 provides that “Any appointing authority or officer or employee entrusted with the responsibility under Section 4(1) who wilfully acts in a manner intended to contravene or defeat the purposes of the Act, shall, on conviction, be punishable with imprisonment which may extend to three months or with fine…..”. As per Section 2(a) of the UP Reservation Act, 1994, “appointing authority” in relation to public services and posts means the authority empowered to make appointment to such services or posts.

29. As pointed out earlier, the post of Technical Assistant Grade-III is governed under the Agriculture Services Rules, 1993. As per Rule 15 of Agriculture Service Rules, 1993, the recruitment authority would determine the number of vacancies to be filled during the year for Scheduled Castes, Scheduled Tribes and other Backward Class candidates under Rule 6. Rule 15 reads as under:-

15. Determination of vacancies The Recruitment Authority would determine the number of vacancies to be filled during the year and would also determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other categories candidates under Rule 6. The vacancies for direct recruitment, would be informed to the Commission according to the prevalent rules and orders at that time or would be notified to the Employment Office. Rule 6 of the Agriculture Service Rules, 1993 stipulates that “reservation for Scheduled Castes, Scheduled Tribes and other Backward Class candidates would be done according to the orders of the Government prevalent at the time of the appointment.”

Agriculture Service Rules, 1993 thus clearly stipulate that it is for the Recruitment Authority to determine the number of vacancies to be filled during the year and would also determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other category candidates under Rule 6. On noticing that there was wrongful calculation of the category-wise vacancy, the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition which is in accordance with the provisions of UP Reservation Act, 1994 and Agriculture Service Rules, 1993.

30. Reiterating the well-settled principle that the percentage of reservation has to be worked out in relation to number of posts which form cadre strength, in R.K. Sabharwal and others v. State of Punjab and others (1995) 2 SCC 745, the Supreme Court held as under:-

“6. The expressions ‘posts’ and ‘vacancies’, often used in the executive instructions providing for reservations, are rather problematical. The word ‘post’ means an appointment, job, office or employment. A position to which a person is appointed. ‘Vacancy’ means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The cadrestrength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation.”

31. It emerges from the materials on record that the total number of sanctioned posts is 10,559 and the quota of 21% Scheduled Caste has come to 2,217 but of which 297 persons are working which come to 2.81% in the Scheduled Caste quota. The rest of vacant posts 1,920 are about 18.18% and after deduction of 2% as per the Government Order, the revised requisition for 1,882 posts against the Scheduled Caste quota has come to 18.18% which was sent. Likewise, against 2% Scheduled Tribe, total posts carved out were 211 posts out of 10,559 posts and the working strength of the employees is 6 which comes to 0.05%.

Out of the rest of the 205 posts which comes to 1.94%, after deduction of 2% as per government order, 201 posts of Scheduled Castes were sent in the revised requisition. So far as 27% posts of Other Backward Classes, the total number of posts are 2,851 out of 10,599 and the working employees of OBC is 780 which come to 7.38% and the rest of the 2,071 posts come to 19.61%. In the same way, 2,713 employees are working against the General quota which comes to 25.69% and rest of the posts required to complete 50% quota is 2,567 i.e. 24.31%. This can be well clarified by the following chart:-

Total number of sanctioned posts

50% General Category

21% Scheduled Caste

2% Scheduled Tribe

27% Other Backward Classes

10559

5280

2217

211

2851

Employees working – 3796

2713 (25.69%)

297 (2.81%)

6 (0.05%)

780 (7.38%)

Vacant – 6763

2567 (24.31%)

1920 (18.18%)

205 (1.94%)

2071 (19.61%)

After 2% deduction as per Government Order – 6628

2515 (23.81%)

1882 (17.82%)

201 (1.90%)

2030 (19.22%)

From the above tabular column, it is seen that the revised requisition is to ensure compliance of the reservation in terms of Section 3 of the UP Reservation Act, 1994. This aspect has not been properly appreciated by the High Court.

32. Revising the number of vacancies in OBC category as 2030 does not violate the right of the General category candidates because the State Legislature has enacted the Reservation Act No.4 of 1994 providing for reservation, keeping in mind the parameters of Article 16(4) of the Constitution of India. By revising requisition, the State has endeavoured to achieve the object of the reservation by working out the vacancy for selection of the posts in question without causing any prejudice to the General category candidates. The revised requisition so made was within the purview of the competency of the State in order to achieve the object of the UP Reservation Act, 1994. Moreover, as rightly contended by the appellants, the total number of vacancies have not been changed or modified.

33. The appropriate authority has taken the cadre strength of the Technical Assistant Grade-III as a unit in the operation of the roster in the year to ascertain whether the given class or group is adequately represented in service. The revised requisition of the Department of Agriculture dated 20.08.2014 was well within the purview of the competence. Moreover, the total number of vacancies i.e. 6628 have not been changed or modified.

34. As pointed out earlier, the category-wise vacancy position was changed after a meeting of all concerned was held i.e. representatives of the Karmik Department as well as of representatives of the Administrative Department and it was found that a wrong calculation of category-wise vacancy had been sent earlier. If the original requisition dated 22.10.2013 was to be retained, it would have resulted in anomalies of the category-wise posts thereby contravening the provisions of the UP Reservation Act, 1994. Hence, the revised requisition was sent on 20.08.2014 from the Administrative Department to the Director, Agriculture who in turn communicated the same to the UP Public Service Commission. By the revised requisition of vacancies for various categories, there is no violation of any rules; on the other hand, it is only to rectify the calculation of vacancies in different categories and to comply with the requisite quota of reservation in different categories as per UP Reservation Act, 1994. This aspect was not properly appreciated by the High Court.

35. In para (68) of the impugned judgment, though the High Court held that the Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given group or category is adequately represented. The revised requisition dated 20.08.2014 and the Office Memorandum dated 12.10.2014 of the UP Public Service Commission was only to ensure the compliance of the provisions of the UP Reservation Act, 1994 and to ensure that the category-wise reservation is not violated which was not kept in view by the High Court.

Absorption of the Diploma Holders

36. In para (64) of the judgment, the High Court observed that the entire maneuvering has taken place in the garb of diploma holders wherein, 1749 diploma holders in the department were adjusted/regularized in the year 1998 and there was no occasion for putting all the diploma holders against open category and under the garb of adjustment of vacancies, the entire scenario has been changed and thus, the entire vacancies against General category have been usurped. The High Court held that the diploma holders ought not to have been absorbed against the General category so as to alter the advertised number of posts under the General category.

37. As pointed out earlier, the earlier requisition was sent showing only 566 vacancies against the OBC quota, while in fact, it should have been 2030, as all the diploma holders were appointed against the General quota and they have not been appointed against the OBC quota. In this context, we may usefully refer to the affidavit filed by the Deputy Director, Agriculture (Training) before the High Court on 17.03.2015 which reads as under:- “…..the Government Agriculture School-Bulandshahar, Government Agriculture School-Chargawan-Gorakhpur and Government Agriculture School-Jhansi were running by the Agriculture Department.

The schools were providing certificate of two years in Krishi Prasar Diploma and the persons undertaking aforesaid diploma during 1981 to 1987 were required to be appointed directly without any selection. However, after enforcement of the Service Rules 1993 since the diploma holder of 1981 to 1987 could not be appointed, the Directorate has sought guidelines from the State Government vide its letter dated 22/1/1998. The State Government vide its letter dated 4/6/1998 granted the relaxation and directed for appointment of Agriculture Diploma Holders who were 1822 in number, out of which 1749 were joined upto 1998.

Since at the time of determination of the vacancy, the OBC person appointed on the basis of the Agriculture Diploma holders certificate were also counted against the vacancy in OBC category while they were not required to be counted against the OBC category, the wrongful calculation had been arrived. The earlier requisition was sent and showing only 566 vacancies against the OBC quota while in fact it should be 2030, as all the diploma holders were appointed against the general quota and they have not been appointed against the OBC quota. Subsequent requisition was merely a rectification of the earlier mistake. On the date of advertisement, the actual post of OBC was lying vacant 2030 posts but on account of wrongful calculation it was advertised as 566…..”.

38. At the time of absorption of the diploma holders in the year 1998, there was no provision for reservation for Backward Class category in the concerned department; only by U.P. Reservation (Amendment) Act, 2002, the reservation was extended to the concerned department and therefore, the appointees/diploma holders have to be considered only against the “general quota” candidates. As seen from the above affidavit filed by the Deputy Director, Agriculture (Training), the diploma holders were not required to be counted against OBC quota; by a wrongful calculation, they have been adjusted against the OBC quota which is not permissible in law as reservation cannot be granted retrospectively.

By the revised requisition, the Government sought to rectify this mistake which resulted in alteration in number of vacancies available against certain categories. Such rectification of mistake by Government cannot be faulted nor can this be a ground for recalling the advertisement in question and issuing a fresh one. The High Court, in our view, should have adopted a pragmatic approach of the matter in hand and considered the fact that the variation in number of vacancies against “General quota” was only because of the absorption of the diploma holders against the “General quota” and rectifying the mistake of adjustment against “OBC vacancies”.

Office Memorandum dated 12.10.2014 revising the vacancies category-wise – whether amounts to changing the rules of the game after the commencement of the selection

39. The High Court held that after the advertisement dated 22.10.2013, changing the break-up of vacancies would amount to change of the rules of the game after the commencement of the selection process which is not permissible. The High Court placed reliance upon Madan Mohan Sharma and another v. State of Rajasthan and others (2008) 3 SCC 724. The learned counsel for the private respondents submitted that changing the vacancies in different categories is illegal and the same amounts to changing the rules of the game in the middle of the selection process. In support of their contention, the learned counsel appearing for the respondents placed reliance upon Hemani Malhotra and K. Manjusree.

40. In K. Manjusree, the selection to ten posts of District and Sessions Judge (Grade-II) in the Andhra Pradesh Higher Judicial Service in pursuance of the advertisement dated 28.05.2004, was the subject matter of the appeal. The selection was on the basis of written examination followed by an interview. There were no minimum cut-off marks prescribed for clearing the interview. After the selection process was completed and the select list was prepared by the interview committee which was approved by the Administrative Committee, when the matter was placed before the Full Court, the Full Court authorized the Chief Justice to constitute a committee of judges for preparing the list of candidates to be recommended for appointment of District and Sessions Judge (Grade-II).

Accordingly, the Chief Justice appointed a sub-committee of two judges which prepared a fresh list of candidates for appointment prescribing minimum qualifying marks for the interview. The sub-committee was of the view that apart from applying the minimum marks for the written examination, the cut-off marks/percentage should be applied for interview marks also and those who failed to secure such minimum marks in the interview, should be considered as having failed. The sub-committee thus prepared a fresh merit list. In those facts and circumstances of the case, the Supreme Court set aside the select list by holding that the introduction of the requirement of cut-off marks for the interview after the entire selection process was completed amounted to changing the rules of the game after the selection process was almost complete which is impermissible.

41. In Hemani Malhotra, the result of the written examination of the Delhi Higher Judicial Service was not announced by the High Court of Delhi, and individual communication was sent to the petitioners therein, informing them of their selection for the interview. Five candidates were called for interview on various dates and were informed of its postponement i.e. the interview first scheduled for 20-09-2006 was later deferred to 29-11-2006, 07-12- 2006, 23-01-2007, 05-02-2007 and was finally conducted on 27-02- 2007. Meanwhile on 13-12-2006, by a Full Court Resolution, minimum qualifying marks for the viva voce was prescribed (55% for general candidates and 50% for SC and ST candidates). In such facts and circumstances, prescribing minimum marks for the interview was struck down as changing the rules of the game during selection process. Initially, there was prescription of minimum marks for written test only and not for viva voce. The minimum marks for viva voce were prescribed after written test was over and it was held that this was not permissible.

42. The case in hand is distinguishable from those cases where the mode of selection was altered by fixing the cut-off marks after the selection process had completed/commenced; whereas in the present case only wrongful calculation in the number of vacancies in different categories had been corrected in order to satisfy the percentage of reservation against various categories as per the provisions of UP Reservation Act, 1994. Such correction cannot be said to changing the rules or basis of selection. The eligibility criteria was not changed.

43. It is also pertinent to note that the proposition of law that rules of game cannot be changed after the selection has been commenced itself has been referred for reconsideration by a larger Bench in Tej Prakash Pathak and others v. Rajasthan High Court and others (2013) 4 SCC 540. While referring the matter to a larger Bench, in Tej Prakash, the Supreme Court explained the ambit of the expression changing the rules of the game as under:-

“11. Those various cases deal with situations where the State sought to alter

(1) the eligibility criteria of the candidates seeking employment, or

(2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut-off marks to be secured by the candidates either in the written examination or viva voce as was done in K. Manjusree v. State of A.P. (2008) 3 SCC 512 or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment (such as driving test as was in Maharashtra SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51).

15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the “rules of the game” insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore AIR 1965 SC 1293, etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the “rules of the game” stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon’ble Chief Justice of India for appropriate orders in this regard.”

44. As discussed earlier, the case in hand is clearly distinguishable from K. Manjusree (supra) and Hemani Malhotra (supra). The diploma holders were wrongly counted against the vacancies in OBC category; while they could not have been counted against OBC category and while doing so, a wrongful calculation had been arrived and the same has to be corrected by counting the diploma holders against the general category.

45. It is to be pointed out that instruction No.7 in the advertisement dated 22.10.2013 stipulates that the number of vacancies may increase or decrease. Agriculture Service Rules, 1993 clearly stipulate that it is the prerogative of the government to determine the number of vacancies in accordance with the rules. As per Rule 15 of the Agriculture Service Rules, 1993, “the recruitment authority would determine the number of vacancies for Scheduled Castes, Scheduled Tribes and other category candidates under Rule 6.” Rule 6 stipulates that “reservation for Scheduled Castes, Scheduled Tribes and other Backward Class candidates would be done according to the orders of the government prevalent at the time of appointment.”

46. Rule 15(3) of the Agriculture Service Rules, 1993 provides for calling the successful candidates, keeping in mind the vacancy of the reserved categories required under Rule 6 after the declaration of result of written examination and for the adequate representation of each category, three times of candidates qua vacancies are required to be invited for the interview. Thus, on the total advertised number of seats for open category i.e. 3616 x 3 = 10848 candidates were eligible under Rule 15(3) of the Agriculture Service Rules, 1993 to be called for interview.

47. In the impugned judgment, the High Court has observed that by decreasing the number of seats of General category, number of candidates of General category were illegally deprived from appearing in the interview. The High Court has also observed that by increasing the number of seats of OBC category, more candidates have been called for interview, even though they were not eligible as per advertisement dated 22.10.2013 and thus, changing the number of vacancies for each category, has prejudiced the number of candidates who are to be called for interview.

The relevant findings of the High Court is as under:- “……Thus, on the total advertised number of seats for open category i.e. 3616 x 3 = 10848 candidates were eligible under Rule 15(3) for interview test. However, by decreasing the number of seats vide letter dated 20.08.2014 i.e. 2515 x 3 = 7545 candidates were invited, thus, 10848 – 7545 = 3303 candidates were illegally deprived to appear in the interview test. However, in the Other Backward Class category, only 566 vacancies were advertised against which only 1698 candidates would be eligible to appear in the interview. However, by illegally increasing the number of vacancies to 2030, 6090 candidates had been invited for the interview.

Thus, in the Other Backward Class category, 6090 – 1698 = 4392 more candidates were called for the interview, even though they were not eligible as per advertisement dated 22.10.2013. Thus, by changing the number of vacancies for different categories amounts to violation of Rule 15(3) of Rules, 1993 during the pendency of the advertisement and thus, depriving of 3303 general category candidates, even to appear in the interview and allowing 4392 more candidates of OBC in the zone of consideration for the selection, amounts to changing the rule of the game during the process of selection……”.

48. By careful consideration, we are unable to countenance the above view taken by the High Court that the change in number of vacancies has illegally deprived 3303 candidates in General category from appearing in the interview and had benefitted the OBC category candidates. Be it noted that the writ petitions were filed by the candidates who appeared for interview and were unsuccessful. It is not known that what were the marks secured by the writ petitioners/candidates in the written examination and what were their position in the merit list. The writ petitioners who are unsuccessful candidates have not demonstrated as to how they were prejudicially affected by the change in number of vacancies against “General category” and “OBC category”. The High Court was not right in making a generalised observation that decrease in the number of vacancies against “General category” has illegally deprived 3303 candidates from appearing in the interview.

49. Notification by the UP Public Service Commission dated 12.10.2014 is based upon the revised requisition of the vacancies by the order of the Administrative Department dated 20.08.2014. In our view, this would not amount to changing the rules of the game after the selection process had commenced nor it had affected the selection process by changing the eligibility criteria.

50. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12.10.2014 and the selection. On behalf of the appellants, it was contended that after the revised notification dated 12.10.2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised notification dated 12.10.2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process.

51. Observing that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken the chance to get selected at the said interview and ultimately, finds himself to be unsuccessful, in Madan Lal and Others v. State of J & K and Others (1995) 3 SCC 486, it was held as under:-

“9. ….. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. …..”

52. In K.H. Siraj v. High Court of Kerala and Others (2006) 6 SCC 395, it was held as under:-

“73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper……..”.

53. In Union of India and Others v. S. Vinodh Kumar and Others (2007) 8 SCC 100, it was held as under:-

“19. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127, it was further observed:-

“34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not ‘palatable’ to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.” Same principle was reiterated in Sadananda Halo and Others v. Momtaz Ali Sheikh and Others (2008) 4 SCC 619 wherein, it was held as under:-

“59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar (2007) 8 SCC 100 ……The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285, where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise……..”

54. Before the declaration of the result of the written examination on 15.09.2014, the State Government by its Government order dated 20.08.2014 revised the requisition thereby revising the number of vacancies in different categories. UP Public Service Commission issued Office Memorandum dated 12.10.2014 specifically mentioning the number of vacancies to be filled up in various categories in accordance with the requisition sent by the State Government. The said Office Memorandum dated 12.10.2014 published by UP Public Service Commission reads as under:-

“UPPSC

INTERVIEW PROGRAMME

Month October/November/December, 2014 (24)

OFFICE MEMORANDUM

98

Post Subordinate Agricultural Service Class III (Provisional Asstt. Group C) Agricultural Deptt. U.P.

Reservation

2515 posts – Non-reserved

1882 posts – SC

201 posts – ST

2030 posts – OBC

Pay Scale Rs.5200-20200/- Grade Pay Rs.2400/-

Advertisement No.A-5/E-1/2013

Last Date: 21.11.2013

October – 27, 28, 29, 30

November – 05, 07, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29

December – 01, 02, 03, 04, 05, 06, 08, 09, 10, 11, 12, 15, 16, 17, 18, 19, 20, 22, 23, 24, 2014

Before 10.00 a.m.

Dt. 12.10.2014″.

It is thus clear that the candidates who appeared in the interview were well aware about the modification/revision in number of vacancies of Technical Assistants in different categories. The private respondents/intervening applicants have appeared in the interview with their eyes wide open regarding the modified vacancies to be filled up in various categories of the posts. Having appeared in the interview without any demur or protest, it is not open to the candidates to challenge the selection process on the ground that there was modification in the number of vacancies in different categories and they are estopped by the principle of estoppel from challenging the same.

55. The private respondents knew that by the revised notification dated 12.10.2014, the number of vacancies of different categories have been changed and knowing the same, they participated in the interview and have taken a chance and opportunity thereon without any protest. Having participated in the interview and having failed in the final selection, it is not open to the private respondents to turn around and challenge the revised notification dated 12.10.2014 and the revised requisition of the number of vacancies in different categories. Having regard to the consistent view taken by the Supreme Court, the High Court should not have granted any relief to the private respondents/intervenors.

Unfilled vacancies of Horizontal Reservation filled by candidates of vertical reservation

56. Contention of the private respondents is that as per the statutory requirement, the horizontal reserved vacancies were unfilled and those unfilled vacancies of horizontal category were filled by vertical reservation candidates/other category candidates, which is in violation of the statutory provisions vitiating the selection process. On behalf of the UP Public Service Commission, Mr. Shrish Kumar Misra, learned counsel has furnished the details as to the number of vacancies reserved for horizontal category and the number of candidates found suitable and placed in the respective categories. The said details are as under:-

Category

No. of Vacancies No. of

Selected Candidates

Women

1325

156

Dependents of Freedom Fighters

132

45

Ex-Servicemen

330

NIL

Partially Blind

84

84

Partially Deaf

84

57

One-Arm

42

42

One-Leg

42

42

On behalf of UP Public Service Commission, it was submitted that one of the policies of the State Government regarding horizontal reservation is that, if the suitable candidates for filling the vacancies reserved for such posts of horizontal reservation are not available and the same are not carried forward; they are filled up by other suitable candidates from amongst the candidates belonging to vertically reserved categories according to their merit. It was submitted that unfilled horizontal reservation vacancies were thus filled up by suitable candidates of respective vertical categories according to their merit which is as per the policy of the government. The High Court was not right in finding fault with the filling up of vacancies reserved for horizontal reservation with other candidates of respective vertical reservation.

Plea of res judicata

57. The respondents have sought to invoke the principles of res judicata by contending that the common judgment dated 10.02.2017 passed by the High Court involved eighty-eight petitions which were allowed with the direction specified in para (75) of the impugned judgment. Out of twenty-one appeals filed before this Court, the judgment of the High Court passed in six writ petitions only viz. WP(C) No.38399/2015, WP(C) No.45822/2015, WP(C) No.47894/2015, WP(C) No.50878/2015 and SPLAD No.283/2016 has been challenged; other matters have not been challenged either by the State or by the appellants.

Mr. K. Parameshwar, learned counsel has contended that when the appellants have not challenged the common judgment rendered in all the eighty-eight writ petitions and in the present appeals, only the judgment rendered in Writ-C No.34196 of 2015 and few other writ petitions are challenged, the judgment rendered in other writ petitions having not been challenged, have attained finality and thus, operate as res judicata.

In support of his contention, the learned counsel has placed reliance upon Sri Gangai Vinayagar Temple wherein, the Supreme Court held that when the common judgment was passed in two or more suits and the judgment and decree passed in two or more of the suits have not been challenged, the decree not assailed there upon, meta morphoses into the character of a “former suit” and the same operates as res judicata. It was therefore, contended that in the instant proceedings, the principle of res judicata would arise since the appellants have not chosen to challenge the common judgment rendered in number of other writ petitions.

58. The above contention does not merit acceptance. In Sri Gangai Vinayagar Temple, three separate decrees were passed in OS No.5 of 1978 (a suit for injunction simpliciter); OS No.6 of 1978 (monetary part of the suit claim); and OS No.7 of 1978 (monetary part of the suit claim and also the issue of ownership). The tenants thereon challenged only the decree passed in respect of OS No.6 of 1978; but have not challenged the decree passed in OS No.5 of 1978 and OS No.7 of 1978. It was in that context, the Supreme Court held that non-challenge to two of the decrees would amount to res judicata. In Sri Gangai Vinayagar Temple, considering the facts and circumstances of the case and non-challenge to the decree passed in OS No.6 of 1978 and OS No.7 of 1978, the Supreme Court took the view that having failed to file appeal against the decree in OS No.5 of 1978 and OS No.7 of 1978, the cause of the tenants-respondents thereon was permanently sealed and foreclosed since res judicata applied against them.

59. It is pertinent to note that in Sri Gangai Vinayagar Temple, observing that mere filing of a single appeal leads to the entire dispute becoming sub judice once again, the Supreme Court in para (27) held as under:-

“27. Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming sub judice once again. ….”

[underlining added]

60. In the present case, before the High Court, the contentions raised were the same and common arguments were advanced. The High Court dealt with the batch of writ petitions and disposed all of them by common judgment. Since it is a common judgment with common reasonings, the present batch of appeals before us would not result in any inconsistent decree or order as all of them arise out of the common judgment containing common operative portion of the judgment.

61. Considering the above contention in the light of the consistent judicial pronouncements of this Court, the above submission is liable to be rejected. In M/s Shenoy and Co., Represented by its partner Bele Srinivasa Rao Street, Bangalore and Others v. Commercial Tax Officer, Circle II, Bangalore and Others (1985) 2 SCC 512, a number of writ petitions were allowed by the High Court. However, the State chose to file appeal only in one case which came to be allowed by the Supreme Court in the said case. In that fact situation, this Court took the view that the decision of this Court was binding on all the writ petitioners before the High Court even though they were not the respondents in the appeal before the Supreme Court. In M/s Shenoy and Co., it was held as under:-

“22. Though a large number of writ petitions were filed challenging the Act, all those writ petitions were grouped together, heard together and were disposed of by the High Court by a common judgment. No petitioner advanced any contention peculiar or individual to his petition, not common to others. To be precise, the dispute in the cause or controversy between the State and each petitioner had no personal or individual element in it or anything personal or peculiar to each petitioner. The challenge to the constitutional validity of 1979 Act proceeded on identical grounds common to all petitioners. This challenge was accepted by the High Court by a common judgment and it was this common judgment that was the subject-matter of appeal before this Court in State of Karnataka v. Hansa Corporation case (1980) 4 SCC 697.

When the Supreme Court repelled the challenge and held the Act constitutionally valid, it in terms disposed of not the appeal in Hansa Corporation case alone, but petitions in which the High Court issued mandamus on the non-existent ground that the 1979 Act was constitutionally invalid. It is, therefore, idle to contend that the law laid down by this Court in that judgment would bind only the Hansa Corporation and not the other petitioners against whom the State of Karnataka had not filed any appeal. To do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution. ………

26. …… The judgment of this Court in Hansa Corporation case is binding on all concerned whether they were parties to the judgment or not. We would like to make it clear that there is no inconsistency in the finding of this Court in Joginder Singh case AIR 1963 SC 913 and Makhanlal Waza case (1971) 1 SCC 749. The ratio is the same and the appellants cannot take advantage of certain observations made by this Court in Joginder Singh case for the reasons indicated above.”

62. Reiterating the above principle, in Director of Settlements, A.P. and Others v. M.R. Apparao and Another (2002) 4 SCC 638, it was held as under:-

“7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence….. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered…… The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case……”.

[underlining added]

After referring to the above judgments, the same principle was reiterated in Fida Hussain and others v. Moradabad Development Authority and Another (2011) 12 SCC 615. 63. Before the High Court in several writ petitions, unsuccessful candidates challenged the revised notification dated 12.10.2014 and also the result dated 21.05.2015 published on 22.05.2015. In all the writ petitions, some contentions were raised and the writ petitions were disposed of by the common judgment. Thus, the contentious issues raised by the parties stood determined on the same set of facts and on the same reasonings. There is no merit in the contention that the judgment passed by this Court would bind only the parties in Writ-C No.34196 of 2015 and that the other judgments passed by the High Court would stand and operate as res judicata. As held in M/s Shenoy and Co. and other judgments, to do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution of India.

Non-impleading of successful candidates in the writ petition

64. On behalf of the appellants, repeated arguments were advanced that the non-impleadment of successful parties will affect the right of the selected candidates who have been selected and given appointments. In this regard, the High Court relied upon Union of India and Others v. O. Chakradhar (2002) 3 SCC 146 to hold that it is not necessary to implead all the successful candidates in the writ petition and therefore, non-impleadment of the successful candidates would not affect the maintainability of the writ petition. The learned Senior counsel appearing for the appellants submitted that in O. Chakradhar, the entire selection was vitiated due to misconduct of the selection and in the present case, there is no such misconduct, fraud or any such other factor which would vitiate the entire selection.

It was submitted that the High Court itself has upheld the result of the written examination while finding fault with the further selection only because of the change in the number of vacancies advertised for each category.

65. When the selection of successful candidates is challenged, depending upon the facts and circumstances of the case, the successful candidates ought to be put on notice about the filing of writ petition by impleading them by issuance of notice in accordance with law vide Poonam v. State of Uttar Pradesh and others (2016) 2 SCC 779. In the present case, we are not inclined to go into this question in view of the order passed by the High Court dated 04.06.2015.

In WP-C No.34196/2015, the High Court asked the writ petitioners/private respondents lawyer to implead the incumbents as parties who have been selected for the post in question. Before the High Court, Mr. Ajay Kumar, learned counsel representing the UP Public Service Commission submitted that he would supply at least names of ten successful candidates along with the details and by the order of the court, the counsel appearing for the writ petitioners were directed to serve notice upon those ten candidates. In such facts and circumstances, we are not inclined to go into this question as to impleading/non-impleading of all the successful candidates in the writ petition.

66. Re: Contention – Appointment letters not issued to 906 candidates and plea to exercise power under Article 142 of the Constitution of India: After the interview was completed, the UP Public Service Commission has selected 6599 candidates and the category-wise details of the candidates so recommended by the Commission are as under:-

Total Vacancies

General

Scheduled Castes

Scheduled Tribes

OBC

6599

2488

1881 + 176 Because of non-availability of ST Candidates + 2057

25

2029

67. The UP Public Service Commission has withheld the result of 29 candidates. The recommendation so made by the UP Public Service Commission was in excess of the permissible percentage of reservation as per UP Reservation Act, 1994. In fact, this was one of the grounds of challenge in the writ petition to assail the select list. In the counter filed by the Principal Secretary, Personnel, Government of UP, it is stated that change in the category-wise vacancies was further scrutinised in terms of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. It was found that a harmonious construction of its various sections was needed to be taken. In the counter affidavit filed by the Principal Secretary, Personnel, it is stated that the total of 6628 vacancies was exceeding the demarcated percentage and the relevant portion of the said affidavit reads as under:-

“Hence, a further revision in category-wise vacancy position was made and subject to the orders of the Hon’ble High Court, the total 6628 vacancies have been sub-divided based on the reservation percentage as the result which was declared by UPPSC was exceeding the demarcated percentage in the following manner:

Available posts after 2% reduction

General (50%)

Scheduled Castes (21%)

Scheduled Tribes (2%)

OBC (27%)

6628

3316

1391

132

1789

Thereafter, the application of horizontal reservation for dependents of Freedom Fighters, Ex-Servicemen, Disabled persons and Women was proposed as follows:

Dependent of Freedom Fighters

Women

Ex-Servicemen

Disabled Persons

132

1325

331

252

68. Writ Petition No.62112/2015 was filed by few of the successful candidates for issuance of appointment letter and the High Court vide its order dated 15.12.2015 directed the official respondents to issue appointment order. The High Court further clarified that any such appointment made as well as the select list shall abide by any order which may be passed by the Division Bench. Pursuant to the aforesaid order, the Chief Secretary, Government of UP vide its letter No.1161/12-4-15-1729/2012 dated 22.12.2015 gave directions to the Department that appointment orders be issued to the selected candidates and that the appointment should abide by the final decision of the court. Accordingly, the appointment orders were issued to the selected candidates on 30.01.2016 as under:-

Position

Unreserved

Scheduled Castes

Scheduled Tribes

OBC

Total

Appointment order issued by Agriculture Department

2478

1385

22

1784

5669

Documents withheld by UPPSC

10

06

03

05

24

Total

2488

1391

25

1789

5693

Number of candidates whose appointment letter were not issued —

490

176

240

906

The appointments were made subject to the outcome of the writ petition. Thus, total of 5669 candidates were issued appointment orders; the appointment orders were withheld for 24 candidates as the documents were withheld by UP Public Service Commission.

69. Mr. Mehul M. Gupta, learned counsel submitted that even though UP Public Service Commission has recommended 6599 candidates on the basis of the vacancies available, 906 candidates were left out and were not issued appointment orders and prayed for direction that the 906 candidates be issued appointment orders. It is pertinent to note that these 906 candidates were ranked lower in the merit list than the last selected candidate in their respective category under the reservation limit as identified by the Personnel Department, therefore appointment orders were not issued to them. This cannot be said to be arbitrariness or discrimination as selection of candidates was on the basis of the merit list. Further, the revised requisition dated 20.08.2014, on the basis of which the impugned office memorandum was issued itself was a case of excessive requisition, that is, beyond the permissible limits set out by the UP Reservation Act, 1994. As a result of this excessive requisition, 906 extra candidates recommended could not be issued appointment orders after the revision.

70. As pointed out earlier, the revised requisition dated 20.08.2014 and the revised notification of the UP Public Service Commission itself were in excess of the permissible limits of reservation as per UP Reservation Act, 1994. We cannot pass direction to accommodate the surplus candidates as that would be in excess of the permissible limit as prescribed by the Act and would be in violation of prescribed limits of reservation as per the statutory provisions of UP Reservation Act, 1994. In exercise of power under Article 142 of the Constitution of India, if we are to issue direction to appoint 906 candidates, it will be crossing the limits of 50% reservation which would be violation of the constitutional provisions and the UP Reservation Act, 1994. Even assuming that the respondent State was not diligent in carrying out the proper quantifiable data of existing working strength in different categories and ascertaining the vacancies position under different categories, it needs no reiteration that a wrong cannot be corrected by committing another wrong.

71. It is fairly well-settled that the selected candidates do not have any indefeasible right to be appointed. As held in State of Bihar and Others v. Amrendra Kumar Mishra (2006) 12 SCC 561, merely because the names of candidates were included in the provisional select list, they do not acquire any indefeasible right to be appointed. Merely because UP Public Service Commission has recommended the names of 906 candidates, they do not acquire any indefeasible right for being appointed.

72. In the counter affidavit filed by the State of U.P., it is stated that the candidates who were selected but not issued appointment letter filed a Writ Petition No.6198 of 2016 and the High Court vide order dated 02.03.2016 has directed the State to issue appointment letter in favour of the petitioners thereon. On request from the Agricultural Department, the Government after taking the opinion of Chief Standing Counsel has filed the Special Appeal before the Division Bench challenging the order dated 02.03.2016. The said Special Appeal was tagged with the Writ-C No.34196 of 2015. Since in Writ-C No.34196 of 2015, the High Court quashed the revised requisition dated 12.10.2014 and the result and quashed the entire selection process subsequent to the declaration of the written examination, consequently the Special Appeal came to be dismissed.

73. So far as the present vacant position in the counter affidavit filed by the State, it is stated that there are total vacancies of 4838 and the next selection process for selecting 2050 candidates has been sent. The relevant portion of the counter affidavit filed by the State of U.P. before this Court reads as under:- “…….It is pertinent to mention that the Department currently has a total present vacancy of 4838, and has accordingly sent a requisition letter to the Subordinate Services Selection Commission for selecting 2059 candidates. So, effectively as of today 2779 vacancies have still not been requisitioned keeping in mind 959 (906+53) posts under the consideration on which appointment order were not issued. A break-up of the current requisition of above mentioned 2059 vacancies is as follows:

No. of vacancies requisitioned

General

SC/ST

OBC

2059

1031

473

555

After filing the aforesaid vacant posts, the vacancies of the said post as per cadre strength is as follows:

2779

1761

534

484

74. Mr. Mehul Gupta, learned counsel on behalf of some of the appellants has prayed that power under Article 142 of the Constitution of India be exercised for extending the benefit of a beneficial provision to overcome injustice caused to 906 candidates who were not issued the appointment orders. It was submitted that the technical flaw in the revised requisition was in excess of the prescribed limit of reservation being in excess of the permissible limits under the UP Reservation Act, 1994 and the same can be rectified by exercising power under Article 142 of the Constitution of India.

Learned counsel further submitted that 906 candidates in three different categories i.e. SC, ST and OBCs have successfully completed the written examination and the interview and these successful candidates have nothing to do with these technical flaws and therefore, prayed that in order to do complete justice, the power under Article 142 of the Constitution of India be exercised. In support of his contention, Mr. Mehul Gupta, learned counsel has placed reliance upon Union of India and Others v. Permanand Singh 1999 Supreme Court Cases (L & S) 625 and D.M. Premkumari v. Divisional Commissioner, Mysore Division and Others (2009) 12 SCC 267.

75. Pointing out that even presently, there are 2779 vacancies and that 906 vacancies are kept apart, Mr. Mehul Gupta, learned counsel appearing for 906 candidates has submitted that 906 candidates can be accommodated in the aforesaid 2779 vacant posts existing as on date. This contention does not merit acceptance. The present vacancies i.e. 4838 and the available vacancies i.e. 2779 are the future vacancies which are to be filled up by a fresh advertisement and by participation of all the eligible candidates including the 906 candidates and other unsuccessful candidates. 2779 vacancies existing as on date, which are the vacancies as on date i.e. in 2019 cannot be filled up by the candidates who got selected pursuant to the advertisement in 2013- 2014.

76. Article 142 of the Constitution of India confers wide power upon the Supreme Court to do complete justice between the parties. Though the powers conferred on the Supreme Court by Article 142 are very wide, the same cannot be exercised to pass an order inconsistent with express statutory provisions of substantive law. In Ramji Veerji Patel and Others v. Revenue Divisional Officer and Others (2011) 10 SCC 643, the Supreme Court held that the power under Article 142 of the Constitution of India is to be exercised very carefully and sparingly. The power under Article 142 of the Constitution of India can be exercised so as to do complete justice between the parties. However, as held in Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409, though the power under Article 142 of the Constitution are plenary in nature, the same cannot be construed to mean that the power can be used to supplant the substantive law applicable to the case.

In the case in hand, as discussed earlier, as per the provisions of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, specific percentages of vacancies have been reserved for different categories viz., (a) Scheduled Castes – 21% (b) Scheduled Tribes – 2% and (c) OBC – 27%. In any recruitment, this statutory permissible limit of reservation not exceeding 50% has to be maintained. The power under Article 142 of the Constitution of India cannot be exercised to supplant the statutory provision under the UP Reservation Act, 1994. In our view, in exercise of power under Article 142 of the Constitution of India, no direction can be issued to the State of UP to issue appointment orders to the 906 candidates.

77. Summary of Conclusion:-

(i) The Office Memorandum dated 12.10.2014 issued by the UP Public Service Commission revising the number of vacancies is based upon the revised requisition of the Government dated 20.08.2014. The revised requisition of the Government dated 20.08.2014 was only to rectify the wrongful calculation of the number of vacancies in different categories and to comply with the requisite percentage of quota of reservation in different categories as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994;

(ii) In view of Rule 15 and Rule 6 of UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993), the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition of number of vacancies in different categories which is in accordance with the provisions of UP Reservation Act, 1994 and Agriculture Service Rules, 1993;

(iii) Absorption of diploma holders were required to be done only against the “General quota”. The High Court was not right in saying that the diploma holders ought not to have been absorbed against the “General category” so as to alter the advertised number of posts against the “General category”;

(iv) Revising the number of vacancies in different categories to satisfy the statutory requirement of reservation quota as per UP Reservation Act, 1994 and this would not amount to changing the rules of the game after the commencement of the selection process;

(v) Having participated in the interview and when they failed in the final selection, it is not open to the private respondents/intervenors to turn around and challenge the revised notification dated 12.10.2014 and the final select list dated 21.05.2015;

(vi) The filling up of the unfilled horizontal reservation by the candidates from the respective vertical reservation is in accordance with the policy of the government and the same cannot be faulted with;

(vii) In view of the judgment in M/s Shenoy and Co., Represented by its partner Bele Srinivasa Rao Street, Bangalore and Others v. Commercial Tax Officer, Circle II, Bangalore and Others (1985) 2 SCC 512 and Fida Hussain and others v. Moradabad Development Authority and Another (2011) 12 SCC 615 and other judgments, challenging the common judgment only in WP-C No.34196 of 2015 and non-challenge to the other writ petitions, will not amount to res judicata;

(viii) The 906 candidates were not issued the appointment orders in order to keep the appointment within the permissible percentage of reservation as per UP Reservation Act, 1994. The power under Article 142 of the Constitution of India cannot be exercised to issue direction to the first respondent-State to issue appointment orders to 906 candidates.

78. In the result, the common impugned judgment dated 10.02.2017 of the High Court in WP(C) No.34196 of 2015 and batch of writ petitions is set aside and these appeals are allowed. The private respondents/intervenors and 906 candidates who were not issued appointment orders and those who filed writ petitions before the High Court shall be granted age relaxation as one-time measure to participate in the upcoming recruitment. Age relaxation is strictly a one-time measure. Consequently, all the intervenors/impleading applications stand dismissed.

J. [R. BANUMATHI]

J. [A.S. BOPANNA]

New Delhi;

September 30, 2019


[C.A. No. 4817/2019]

[C.A. No. 4816/2019]

[C.A. No. 4819/2019]

[C.A. No. 4818/2019]

[C.A. No. 4821/2019]

[C.A. No. 4820/2019]

[C.A. No. 4830/2019]

[C.A. No. 4829/2019]

[C.A. No. 4833/2019]

[C.A. No. 4825/2019]

[C.A. No. 4827/2019]

[C.A. No. 4834/2019]

[C.A. No. 4828/2019]

[C.A. No. 4824/2019]

[C.A. No. 4835/2019]

[C.A. Nos.4822-23/2019]

[C.A. No.4836/2019]

[C.A. No. 4826/2019]

[C.A. No. 4832/2019]

[C.A. No. 4831/2019]

 


 

In West Bengal Panjabi speaking Sikhs are linguistic minority against Bengali: SC

SUPREME COURT OF INDIA JUDGMENTS

Chandana Das (Malakar) Vs. State of West Bengal & Ors-25/09/2019

In the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali.

The fundamental right under Article 30 refers to the “establishment” of the school as a linguistic minority institution which we have seen is very clearly the case, given paragraphs 5(a) and 5(b) of letter dated 19th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community.

ACT:- West Bengal Minorities’ Commission Act, 1996

Bench : J. (R.F. Nariman) J. (R. Subhash Reddy) J. (Surya Kant)

SUPREME COURT OF INDIA

Chandana Das (Malakar) Vs. State of West Bengal & Ors.

[Civil Appeal No.2858 of 2007]

[Civil Appeal No.2859 of 2007]

R.F. Nariman, J.

1. These appeals have been referred to a Three Judge Bench in view of a disagreement between T.S. Thakur, J. and R. Banumathi, J., reported as Chandana Das (Malakar) v. State of West Bengal (2015) 12 SCC 140. The facts that are necessary in order to decide these appeals are set out by Thakur, J. in his judgment as follows:

“2. The appellants, it appears, were appointed as teachers on temporary basis in what is known as Khalsa Girls High School, Paddapukur Road, Bhowanipore, Calcutta. Their appointment did not, however, meet the approval of the District Inspector of Schools, Calcutta, according to whom any such appointment could be made only on the recommendations of the School Service Commission established under the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 (hereinafter referred to as “the Rules”).

3. Aggrieved by the order passed by the District Inspector, the appellants approached the High Court of Calcutta in Writ Petitions Nos. 16256 and 16255 of 2003 which were allowed by a learned Single Judge of the High Court by his order dated 29-1-2004 holding that the Institution in which the appellants were appointed being a linguistic minority institution was entitled to select and appoint its teachers. The Single Bench accordingly directed the respondents in the writ petitions to approve the appointment of the appellants as whole-time teachers with effect from 28-7-1999 and release the arrears of salary and other service benefits in their favour with effect from the said date.

4. Aggrieved by the judgment and order of the learned Single Judge, the State of West Bengal, Director of School Education and District Inspector of Schools preferred CANs Nos. 3861 and 3863 of 2004 against the order passed by the Single Bench which appeals were allowed and disposed of by a Division Bench of that Court by a common order dated 23-9-2004 [State of W.B. v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] . The High Court held that since the Institution in which the appellants were appointed was a recognised aided Institution, the management of the Institution was bound to follow the mandate of Rule 28 of the Rules aforementioned which permitted appointments against a permanent post only if the candidate was recommended for any such appointment by the School Service Commission.

5. The Division Bench further held that the appellants having been appointed beyond the sanctioned staff strength at the relevant point of time and dehors the Rules could not claim any approval in their favour. The Court noted that the directions issued by the Director of School Education, Government of West Bengal did not permit any appointment without the prior permission of the Director. No such permission had been, in the case at hand, obtained from the Director. More importantly, the Division Bench held that since the Institution had not made any claim to its being a minority institution it was not open to the employee writ petitioners to claim any such status on its behalf. The Division Bench further took the view that once a minority community applies for a special constitution under sub-rule (3) of Rule 8 of the said Rules it represents to the State Government that it was not claiming the status of a minority institution. The Single Bench had, therefore, fallen in error in holding that the Institution where the appellants worked was a minority institution or that the appointment made by such an Institution would not be regulated by Rule 28 of the Rules mentioned above. The present appeals, as noticed above, call in question the correctness of the view taken by the Division Bench of the High Court.

6. The short question that falls for determination is whether Khalsa Girls High School, Poddapukur Road, Calcutta is a minority institution, if so, whether the Institution’s right to select and appoint teachers is in any way affected by the provisions of the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 framed under the provisions of the West Bengal Board of Secondary Education Act, 1963?

xxx xxx xxx

8. The Institution’s case, on the other hand, is that the same was and continues to be a linguistic minority institution from its inception. The affidavit filed on behalf of the Institution traces the history behind the establishment of the Institution for the benefit of Punjabi-speaking Sikhs settled in Calcutta and other parts of West Bengal. The affidavit states that on 19-4-1976 a detailed memorandum was sent by the Institution to the Secretary, West Bengal Board of Secondary Education asking for approval of the special constitution for the school in terms of Rule 33 of the Rules mentioned above. That prayer was according to the Institution made only because the school was a minority educational institution. The affidavit also relies upon recognition of the minority status of the school by the West Bengal Minority Commission in terms of its Order dated 6-10-1989.

The affidavit states that minority status of the Institution continues despite the grant sanctioned by the State which cannot carry conditions that would have the effect of defeating or diluting the right of minority to establish and administer its own Institutions. It was also contended that Rule 33 of the Rules reserves in favour of the State Government the power to frame further rules for certain institutions to which the provisions of Articles 26 and 30 of the Constitution apply. No such rules having been framed a minority can establish and run its institution in accordance with a special constitution that may be sanctioned in its favour. Rule 28 of the Rules relating to the appointment of teachers in minority institutions, therefore, does not apply in the present case.”

2. The question posed by Thakur, J. in paragraph 6 of the judgment was answered stating:

“21. It is unnecessary to multiply decisions on the subject for the legal position is well settled. Linguistic institution and religious are entitled to establish and administer their institutions. Such right of administration includes the right of appointing teachers of its choice but does not denude the State of its power to frame regulations that may prescribe the conditions of eligibility for appointment of such teachers. The regulations can also prescribe measures to ensure that the institution is run efficiently for the right to administer does not include the right to maladministration.

While grant-in-aid is not included in the guarantee contained in the Constitution to linguistic and religious minorities for establishing and running their educational institutions, such grant cannot be denied to such institutions only because the institutions are established by linguistic or religious minority. Grant of aid cannot, however, be made subservient to conditions which deprive the institution of their substantive right of administering such institutions. Suffice it to say that once Respondent 4 Institution is held to be a minority institution entitled to the protection of Articles 26 and 30 of the Constitution of India the right to appoint teachers of its choice who satisfy the conditions of eligibility prescribed for such appointments under the relevant rules is implicit in their rights to administer such institutions. Such rights cannot then be diluted by the State or its functionaries insisting that the appointment should be made only with the approval of the Director or by following the mechanism generally prescribed for institutions that do not enjoy the minority status.

22. The view taken by the Division Bench of the High Court that appointments of the appellants were dehors the Rules inasmuch as they were not made by the School Service Commission hence did not qualify for approval, does not appear to us to be sound. The mechanism provided for making appointments under Rule 28 has no application to minority educational institutions.

xxx xxx xxx

24. Placed in juxtaposition to Rule 33 of the Rules extracted earlier, it is self-evident that while Rule 28 applies generally to other institutions; Rule 33 is more specific in its application to minority educational institutions covered by Article 26 or 30 of the Constitution. In the absence of any rules framed for such minority educational institutions the minority educational institution in the present case was entitled to select and appoint its teachers so long as other conditions for such appointments, namely, availability of substantive vacancies and the eligibility of the candidates for such appointments were duly satisfied.

25. It is not, in the instant case, disputed that the appellants were both duly qualified for appointment as teachers in the subject concerned. It is also not in dispute that they have been serving for a considerable length of time on a meagre salary which the institution has been paying to them in the absence of the State Government recognising the appointments and releasing grant-in-aid against their posts.

26. The only other question that could possibly arise in the matter of approval of such appointments was the absence of a sanctioned post as on the date the appointments were made. It was contended by the learned counsel for the appellants that vacancies had subsequently arisen against which the appointments of the appellants could be approved and the salary payable to them from the date of such vacancies becoming available released. If that be so, we see no reason why the appointments of the appellants should not be approved with effect from the date of such vacancies becoming available against which such appointments could be regularised. To that extent the relief prayed for by the appellants shall be suitably moulded.”

3. Banumathi, J. delivered a separate judgment disagreeing with these conclusions. She agreed with the Division Bench judgment of the Calcutta High Court, which had upset the Single Bench judgment of that Court, and held as follows:

“34. The impugned judgment [State of W.B. v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] of the Division Bench of the Calcutta High Court is as under: (Sukhbindar Kaur case [State of W.B. v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] , SCC OnLine Cal para 4)

“4. … In such view of the matter, a Constitution permitted under sub-rule (3) of Rule 8 of the said Rules cannot be in relation to minority community institutions. That has been amply cleared by framing Rule 33 in the Management Rules which specifically deals with institutions entitled to protection of Articles 26 and 30. It authorises the State Government to make special rules for constitution of the Managing Committee of such institutions. The moment a minority community applies for a special constitution under sub-rule (3) of Rule 8 of the said Rules it represents to the State Government that it is not claiming the status of minority community at least at the time when such application is made.” In my considered view, the above reasoning of the Calcutta High Court is to be affirmed for the reasons indicated by me herein.”

4. The main grounds for disagreement were two. In paragraphs 36 to 40, the learned Judge found that in the absence of any order by the competent authority under the West Bengal Board of Secondary Education Act granting minority status to the Respondent No.4 school, the said school cannot claim to be a minority institution for the purpose of Article 30 and is, therefore, bound, being an aided institution, by the 1969 Rules, in particular Rule 28 thereof. The other plank of the decision was contained in paragraphs 43 and 51, stating that the school having accepted the special constitution in terms of Rule 8(3) of the Rules, the school is estopped from contending that it is a minority institution governed by special rules to be framed by the State under Rule 33 of the Rules.

5. Shri Siddharth Bhatnagar, learned Senior Advocate appearing on behalf of the Appellants, has taken us through the impugned High Court judgment as well as the judgments of Thakur, J. and Banumathi, J. He also read Rules 6, 8(3), 28 and 33 of the Rules together with the request dated 19th April, 1976 of the Khalsa Girls School, stating that it was formed on behalf of the Sikh religious and linguistic minority in the State of West Bengal and to accord it the status of a minority institution. He then relied upon an order dated 7th May, 1982 of the West Bengal Board of Secondary Education, in which, despite approving of a special constitution for future management of the school, was done in deviation of Rule 6 in recognition of the fact that it was a minority institution. He also brought to our notice the fact that since 2008, Rule 32(c) is now substituted as follows:

“32. Rules not to apply to certain Institutions— Nothing in these rules shall apply to –

xxx xxx xxx

(c) the non-Government aided Educational Institution established and administered by a Minority referred to in clause (c) of Section 2 of the West Bengal Minorities’ Commission Act, 1996 (West Bengal Act XVI of 1996);

xxx xxx xxx

Explanation :- For removal of any doubt, it is hereby declared that the State Government may, for the purpose of ensuring quality education, access and equity, on an application made by any non-Government aided Educational Institution referred to in clause (c), make rules under the provisions of the said Act for the composition, powers, functions etc of the Committee of such Institution;”

As a consequence, Rule 33 has been omitted.

6. He then took us through Section 2(c) of the West Bengal Minorities’ Commission Act, 1996, which states as follows:

“2. Definitions – In this Act, unless the context otherwise requires,-

xxx xxx xxx

(c) “Minority”, for the purpose of this Act, means a community based on religion such as Muslim, Christian, Sikh, Buddhist, or Zoroastrian (Parsee), and includes –

(i) such other minority as the Central Government may notify under clause (c) of section 2 of the National Commission for Minorities Act, 1992, or .

(ii) such other minority based on language within the purview of article 29 of the Constitution of India (hereinafter referred to as the Constitution) as the State Government may, by notification, specify from time to time;”

On facts, he argued that it was wholly incorrect to hold that the management of the school had given up its right to be a minority institution. He also argued, based on several judgments, that the fundamental right under Article 30 of the Constitution of India cannot be waived. He also took us through various judgments to show that though Respondent No.4 school was an aided institution, Rule 28 qua appointment of teachers would not be applicable to it as it is a minority institution. He also cited judgments before us to show that it was unnecessary to first obtain a declaration from the competent authority that the school is a minority institution as any such declaration would only be a recognition of a pre-existing right, if the institution was, in fact, set up by the minority community for the minority community.

7. Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of Respondent No.4 school, broadly echoed Shri Bhatnagar’s arguments and also took us through the letter dated 19th April, 1976 to show that Respondent No.4 school was set up purely as a linguistic minority school in the State of West Bengal. Hence, he supported the prayer of the teachers that they be regularised against vacancies that have since arisen.

8. Shri Soumya Chakraborty, learned Senior Advocate appearing on behalf of the State, strongly relied upon the judgment of Banumathi, J. and, in addition, argued that Article 350B would make it clear that the institution must first be declared to be a minority institution before it can avail of the fundamental right under Article 30. He added that in any case the medium of instruction was Hindi and, therefore, being the national language, the institution could not be said to cater to the needs of the minority community. He also made a fervent plea to refer the matter to a larger Bench, given the fact that a Division Bench of this Court had in Shiromani Gurudwara Prabandhak Committee v. Shail Mittal SLP (C) No. 2755/2008 by an order dated 18th November, 2010 referred a similar matter to be heard along with other matters by a Constitution Bench.

9. Before embarking on the questions raised in these appeals, it is important to first advert to the West Bengal Board of Secondary Education Act, 1963. It is enough to state that this Act establishes the West Bengal Board of Secondary Education and various Committees and Regional Examination Councils and then lays down their powers. Suffice it to say that it is no part of the powers and duties of the Board or of any authority set up therein to declare that a particular institution is, or is not, a minority institution.

10. It is now necessary to advert to the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969. Rule 6 is relevant and is set out hereinbelow as follows:

“6. Composition of the Committee of an Institution other than that sponsored by the State Government:

The Committee shall consist of the following members:-

(i) one founder to be chosen in the manner provided in Rule 6A;

(ii) one Life Member, if any, to be selected or nominated in the manner laid down in Rule 6A;

(iii) six guardians of whom two shall be woman in case of a girls school in the case of institutions having classes XI and XII recognized by the West Bengal Council of Higher Secondary Education and/or X-Class High Schools and three guardians in the case of Junior High Schools, to be elected or nominated, as the case may be, in the manner laid down in sub-rule (2) of Rule 6A;

(iv) one person interested in education (to be co-opted) in the manner laid down in clause (i) of sub-rule (3) of Rule 6A;

Provided that in the case of an institution located within the jurisdiction of a Panchayet, one person interested in education shall be the nominee of the Local Panchayet Samity. The person so nominated shall be a resident of the locality within the jurisdiction of the said Panchayet Samity;

(v) three teaching staff except the Head of an Institution and one non-teaching staff in the case of an institution with Higher Secondary Classes (XI and XII) recognised by the West Bengal Council of Higher Secondary Education and/or a X-Class High School and two members from among the teaching and non-teaching staff in the case of a junior High School, to be elected in the manner prescribed in Clause (i) of sub-rule (4) of Rule 6A;

(vi) one member of the Committee shall be nominated by the Director or by an officer authorised by him in this behalf;

(vii) Head of the Institution (ex-officio).

Provided that no person shall be eligible to represent more than one category.

Rule 8(3) is important for our purpose and states as follows:

“8. Power of Executive Committee to approve and Supersede Committee, to appoint Administrator or Ad-hoc Committee and to grant special constitution;

xxx xxx xxx

(3) Notwithstanding anything contained in these rules, the Executive Committee shall have the power to approve, on the application of any Institution or class of Institutions, of the special constitution of a Committee in favour of such Institution or class of Institutions and in approving the special constitution of a Committee, the Executive Committee shall pay due regard to the recommendations of the Director, if any. While granting special constitution in favour of an Institution or a class of Institution, the Executive Committee shall ensure that representation of the members of the teaching and the non-teaching staff, guardians and the member nominated by the Director or an officer authorised by him in this behalf, is made according to clause (iii), clause (v) and clause (vi) of Rule 6:

Provided that if the Executive Committee is of the opinion that a school enjoying special constitution has not been functioning properly, the Executive Committee may, after paying due regard to the recommendations of the Director, if any, amend or withdraw such special constitution of a Committee and in that event, the Executive Committee may, by order, appoint an Administrator or an Ad-hoc Committee, as the case may be, to exercise the powers and perform the functions of the Committee for such period as may be specified in the order.”

Rule 28(1)(i), which is sought to be applied to Respondent No.4, states as follows:

“28. Powers of Committee –

(1) In an aided institution the Committee shall, subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme or any order or direction or guide-lines issued by the State Government or the Director in connection therewith and in force for the time being, have the power –

(i) to appoint on the recommendation of the West Bengal Regional School Service Commission in respect of the region concerned, teachers on permanent or temporary basis against permanent or temporary vacancies, if and when available, within the sanctioned strength of teachers and on approval by the Director or any Officer authorized by him, such approval being sought for within a fortnight from the date of decision of the committee in this behalf;”

Rules 32 and 33 are also important and state as follows:

“32. Rules not to apply to certain Institutions-Nothing in these rules shall apply to the Institutions maintained and managed by the State Government, the Union Government or the Railway Board or the schools managed under the provisions of the St. Thomas’ School Act, 1923, (Bengal Act XII of 1923) or to any other Institution as may be specified by the State Government by order, made in this behalf from time to time.

33. Power of the State Government to frame further rules for certain Institutions-Nothing in these rules shall affect the power of the State Government to frame, on the application of any Institution or class of Institution to which the provisions of Article 26 or Article 30 of the Constitution of India may apply, further or other rules for the composition, powers, functions of the Managing Committee or Committees of such Institution or class of Institutions.”

11. These Rules have since been amended by a notification dated 29th August, 2008, as has been noticed hereinabove. And Rule 33 has been omitted altogether.

12. A perusal of the Rules, as they stood prior to the 2008 amendment, would show that in case the provisions of Article 30 of the Constitution apply, further or other rules for the composition, powers, functions of the managing committee or committees of such institutions or class of institutions would be framed. It is admitted, as has been noticed in the judgment of Thakur, J. that no such Rules have been framed under Rule 33.

13. At this juncture, it may be noted that by a letter dated 19th April, 1976, Respondent No.4 wrote to the Secretary, West Bengal Board of Secondary Education asking that it may be declared as a minority community institution and the special constitution for the same may be approved on that basis. What is of importance is what is stated in paragraph 5(a) and 5(b) of the said letter, which is set out hereinbelow:

“5. The brief History of the said Khalsa High School is as follows:-

(a) In the year 1932 this institution was started in the shape of a Khalsa Primary School by the Sikh Community living in Calcutta to impart education to their children who came from Punjab where they had ample opportunities to learn their mother tongue viz: Punjabi and to impart religious, ethical and moral training in soothing atmosphere.

(b) Earlier to this in the year 1930, the late Reverend Sant Mastan Singh started a small Pathashala at 573, Paddopukur Road, Calcutta, with about twenty children to teach them Punjabi, in Gurumukh Script. In 1932, Baba Harnam Singh Kaunka was made in charge of that School which was becoming popular day by day among the Sikh Community. After some time he opened a new School at 16, Paddapukur Road, Calcutta. By this time the population of the Sikhs was increasing in Calcutta. A large number of Sikh Children were facing serious difficulties in the absence of their own proper School.

The urgent need

of opening a School of their own choice came to the forefront and it was unanimously resolved by the Sikhs in a congregation to start a Khalsa Primary School without any loss of time. The social and religious workers left no stone unturned to get a suitable building for this purpose. After intense endeavours the building situated at No. 75, Bakul Begal Road, Calcutta was acquired on rent to start with. Thus, Khalsa Primary School was inaugurated on the 1st November, 1933, by Sardar B.R. Singh, Head of Eastern Railway. He donated a handsome amount to the School on this pious occasion. Baba Harnam Singh Kanuka threw his lot with this venture of the Sikh Community in toto.”

14. By a letter dated 7th May, 1982 from the Secretary, West Bengal Board of Secondary Education to the Respondent No.4, a special constitution of the managing committee of the school was set up as follows:

1. Representative (s) of :-

(i) Bara Sikh Sangat

1(one)

(ii) Sri Guru Singh Sabha

1(one)

(iii) Gurudwara Sant Kutia

1(one)

2. Guardians’ representative (to be elected)

4

3. Members of the teaching & non-teaching Staff (to be jointly elected)

4(3+1)

4. P.I.E. (as per provisions of the amended rules

1

5. Head of the institution (ex-officio)

1

6. Departmental Nominee

1

15. It is obvious on a reading of this document that whereas Rule 6 required only one representative of the Sikh community to be on the Management Board, there are three representatives appointed. Equally, whereas Rule 6 requires that there be six guardian representatives to be elected, only four are provided for by this letter. Thus, it cannot be said that by acceptance of this letter, Respondent No.4 has, in any manner, unequivocally waived its right to be treated as a minority institution. On the contrary, the application dated 19th April, 1976, was to recognise it as a minority institution, and merely because Rule 8(3) of the Rules was purportedly applied, it does not mean that the minority character of the institution was not kept in mind while framing the special constitution for future management of the school. On facts, therefore, it is difficult to appreciate how the Respondent No.4 can be said to have waived its right to be treated as a linguistic minority institution set up by a linguistic minority, namely, the Sikhs in the State of West Bengal.

16. It is important at this juncture to first set out Article 30 of the Constitution of India. Article 30(1) states:

“30. Right of minorities to establish and administer educational institutions –

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

17. The historical reasons for enacting Article 30(1) have been set out in some detail in the judgment of Shelat, J. and Grover, J. in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 as follows:

“535-A – It may be recalled that as regards the minorities the Cabinet Mission had recognised in their report to the British Cabinet on May 6, 1946 only three main communities; general, Muslims and Sikhs. General community included all those who were non- Muslims or non-Sikhs. The Mission had recommended an Advisory Committee to be set up by the Constituent Assembly which was to frame the rights of citizens, minorities, tribals and excluded areas. The Cabinet Mission statement had actually provided for the cession of sovereignty to the Indian people subject only to two matters which were:

(1) willingness to conclude a treaty with His Majesty’s Government to cover matters arising out of transfer of power and

(2) adequate provisions for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution the Constituent Assembly set up an Advisory Committee on January 24, 1947. The Committee was to consist of representatives of muslims, the depressed classes or the scheduled castes, the Sikhs, Christians, Parsis, Anglo-Indians, tribals and excluded areas besides the Hindus.

As a historical fact it is safe to say that at a meeting held on May 11, 1949 a resolution for the abolition of all reservations for minorities other than the scheduled castes found whole hearted support from an overwhelming majority of the members of the Advisory Committee. So far as the scheduled castes were concerned it was felt that their peculiar position would necessitate special reservation for them for a period of ten years. It would not be wrong to say that the separate representation of minorities which had been the feature of the previous Constitutions and which had witnessed so much of communal tension and strife was given up in favour of joint electorates in consideration of the guarantee of fundamental rights and minorities’ rights which it was decided to incorporate into the new Constitution.”

(Emphasis supplied)

18. This was further fleshed out in the judgment of Khanna, J. in Ahmedabad St. Xavier’s College Society v. State of Gujarat (1975) 1 SCR 173 as follows:

“Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. India is the second-most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on the Indian polity and India today represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissensions.

There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination.

Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats and separate electorates. In order to bring about integration and fusion of the different sections of the population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instil a sense of confidence and security in the minorities.

Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens. The result was that minorities gave up their claims for reservation of seats.

xxx xxx xxx

A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right of minorities so far as their educational institutions are concerned… The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution.

The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilised nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilisation and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.”

(Emphasis supplied)

19. This was reiterated in the concurring judgment of Quadri, J. in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 as follows:

“301. …The founding fathers of the Constitution were alive to the ground realities and the existing inequalities in various sections of the society for historical or other reasons and provided for protective discrimination in the Constitution with regard to women, children, socially and educationally backward classes of citizens, Scheduled Castes and Scheduled Tribes by enabling the State to make special provision for them by way of reservation as is evident from clauses (3) and (4) of Article 15 and clauses (4) and (4-A) of Article 16 of the Constitution.

The apprehensions of religious minorities and their demand for separate electorates, were settled by providing freedom of conscience and free profession, practise and propagation of religion for all the citizens under Articles 25, 26 and 28 which take care of the religious rights of minorities equally; by special provisions their right to conserve a distinct language, script or culture is guaranteed as a fundamental right in Article 29; further, all minorities, whether based on religion or language, are conferred an additional fundamental right to establish and administer educational institutions of their choice as enshrined in Article 30 of the Constitution.

The right under Article 30(1) is regarded so sacrosanct by Parliament in its constituent capacity that when by operation of the law of the land – Land Acquisition Act – compensation awarded for acquisition of a minority educational institution was to result in restricting or abrogating the right guaranteed under clause (1) of Article 30, it by the Constitution (Forty-fourth) Amendment Act inserted clause (1-A) in Article 30. It provides that Parliament in the case of a Central legislation or a State Legislature in the case of State legislation shall make a specific law to ensure that the amount payable to the minority educational institutions for the acquisition of their property will not be such as will in any manner impair their functioning. A Constitution Bench of this Court in interpreting clause (1-A) of Article 30 in Society of St. Joseph’s College v. Union of India [(2002) 1 SCC 273] observed thus: (SCC p. 278, para 7)

“7. Plainly, Parliament in its constituent capacity apprehended that minority educational institutions could be compelled to close down or curtail their activities by the expedient of acquiring their property and paying them inadequate amounts in exchange. To obviate the violation of the right conferred by Article 30 in this manner, Parliament introduced the safeguard provision in the Constitution, first in Article 31 and then in Article 30.”

20. The Nine Judge Bench in St. Xavier’s (supra), by a majority of 7:2, held that Section 33-A(1)(b) of the Gujarat University Act, 1949 as amended by the Gujarat University (Amendment) Act, 1972, would not apply to minority institutions. Section 33-A(1)(b) of the said Act is set out as follows:

“33-A. (1) Every college (other than a Government college or a college maintained by the Government) affiliated before the commencement of the Gujarat University (Amendment) Act, 1972 (hereinafter in this section referred to as ‘such commencement’)-

xxx xxx xxx

(b) that for recruitment of the Principal and members of the teaching staff of a college there is a selection committee of the college which shall include-

(1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice-Chancellor, and

(2) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the Vice-Chancellor and the Head of the Department, if any, concerned with the subject to be taught by such member.”

21. Ray, C.J. adverted to the aforesaid provision and stated that at the core of the fundamental right of Article 30 is the right to administer which includes the right of the minority institutions to choose its teachers (see pages 194 and 196). Having held this, the learned Chief Justice set out the argument of the Intervenors thus: “The provisions contained in Section 33-A(1)(b) of the Act were not challenged by the petitioners. The interveners challenged those provisions. The settled practice of this Court is that an intervener is not to raise contentions which are not urged by the petitioners. In view of the fact that notices were given to minority institutions to appear and those institutions appeared and made their submissions a special consideration arises here for expressing the views on Section 33-A(1)(b) of the Act.

The provisions contained in Section 33-A(1)(b) of the Act are that for the recruitment of the Principal and the members of the teaching staff of a college there is a selection committee of the college which shall consist, in the case of the recruitment of a Principal, of a representative of the university nominated by the Vice-Chancellor and, in the case of recruitment of a member of the teaching staff of the college, of a representative of the university nominated by the Vice-Chancellor and the Head of the Department if any for subjects taught by such persons. The contention of the interveners with regard to these provisions is that there is no indication and guidance in the Act as to what types of persons could be nominated as the representative. It was suggested that such matters should not be left to unlimited power as to choice. The provisions contained in Section 33-A(1)(b) cannot therefore apply to minority institutions.”

This argument was accepted stating that the said Section cannot, therefore, be applied to minority institutions as it would otherwise violate the fundamental right contained in Article 30(1).

22. This view was concurred in by Khanna, J. as follows: “Another conclusion which follows from what has been discussed above is that a law which interferes with a minority’s choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers.

The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1). In the case of Rev. Father W. Proost this Court while dealing with Section 48-A of the Bihar Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners in that case were, therefore, held entitled to the protection of Article 30(1) of the Constitution. The provisions of that section have been referred to earlier.

According to the section, subject to the approval of University appointment, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission.”

Likewise, Jagan Mohan Reddy, J. also held Section 33-A(1)(b) inapplicable to minority institutions. The concurring judgment of Mathew, J. and Chandrachud, J. agreed with the learned Chief Justice that the aforesaid provision could not possibly apply to a minority institution as follows:

“It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them.”

23. A reading of the aforesaid judgment would leave no manner of doubt that if Respondent No.4 is a minority institution, Rule 28 of the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided) 1969, cannot possibly apply as there would be a serious infraction of the right of Respondent No.4 to administer the institution with teachers of its choice.

24. We now go to the question as to whether it is necessary that there be a declaration as to status of the minority institutions by the competent authority under the West Bengal Board of Secondary Education Act, 1963 before it can claim the status of being a minority institution. We have already noticed that the competent authorities set up by the aforesaid Act do not give any power to recognise a minority institution. For this reason, it is difficult to agree with the conclusion stated in paragraph 40 of judgment of Banumathi, J. Further, the letter dated 19th April, 1976 would show that Respondent No.4 was started as a primary school by the Sikh community living in Kolkata to impart education to their children who came from Punjab, so that they may learn their mother tongue and religion, ethics etc. As a matter of fact, this aspect of the matter is no longer res integra.

25. In N. Ammad v. Emjay High School (1998) 6 SCC 674, this Court held:

“12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school would continue to be so whether the Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:

“30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

13. When the Government declared the School as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 2-8-1994.”

This statement of the law was then followed by Corporate Educational Agency v. James Mathew (2017) 15 SCC 595 as follows:

“7. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad v. Emjay High School [N. Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC 732] has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence.

xxx xxx xxx

10. Chapter IV deals with functions and powers of the Commission. Under Section 11(f), the Commission has been vested with the power rather the mandate to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such. Section 11 of the Act is quoted hereunder:

“11. Functions of Commission.-Notwithstanding anything contained in any other law for the time being in force, the Commission shall-

(a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it;

(b) enquire, suo motu, or on a petition presented to it by any minority educational institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation;

(c) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;

(d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation;

(e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;

(f) decide all questions relating to the status of any institution as a minority educational institution and declare its status as such;

(g) make recommendations to the appropriate Government for the effective implementation of programmes and schemes relating to the minority educational institutions; and (h) do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission.”

(emphasis supplied)

11. Therefore, after the introduction of the National Commission for Minority Educational Institutions Act, 2004, it is also within the jurisdiction and mandate of the National Commission to issue the certificate regarding the status of a minority educational institution. Once the Commission thus issues a certificate, it is a declaration of an existing status.”

26. We have held that it cannot be said that Respondent No.4 is, in any manner, estopped from claiming its minority status on the facts of this case. Quite apart from this, it is settled law that the fundamental right under Article 30 cannot be waived (See St. Xavier’s (supra) at pages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 and 569 to 571.) In the recent judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, Chandrachud, J. has echoed this sentiment as follows:

“126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54)

“52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity.

These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy” “

27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court.

28. Shri Chakraborty, learned Senior Advocate appearing on behalf of the State, raised an argument based on Article 350B. The said Article reads as follows:

“350B. Special Officer for Linguistic Minorities

(1) There shall be a Special Officer for linguistic minorities to be appointed by the President.

(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned.”

29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution.

30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587).

31. There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali. The argument of the learned counsel appearing on behalf of the State that the school is, in fact, teaching in the Hindi medium is neither here nor there. What is important is that the fundamental right under Article 30 refers to the “establishment” of the school as a linguistic minority institution which we have seen is very clearly the case, given paragraphs 5(a) and 5(b) of letter dated 19th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. This argument also, therefore, must be rejected.

32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18th November, 2010.

33. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Court’s judgment in Bal Patil v. Union of India (2005) 6 SCC 690, that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case.

34. As a result, we are of the view that the judgment of Thakur, J. is correct in law. Consequently, the judgment and order of the learned Single Judge of the Calcutta High Court is correct, and that of the Division Bench of the Calcutta High Court is set aside. The appeals are, accordingly, allowed with no order as to costs.

J. (R.F. Nariman)

J. (R. Subhash Reddy)

J. (Surya Kant)

New Delhi

September 25, 2019.


 

Tarakeswar Rewani vs The UCO Bank & Ors [CHC]-26/07/2019

A casual sweeper/safai karmachari of the Bank on daily wage basis with no formal letter of appointment/engagement was issued in his favour. Payment was made to him against cash vouchers was terminated filed a Writ petition. When the writ petitioner is a workman and the dispute is an industrial dispute the Industrial Court/Tribunal is the proper forum.

Acts: Section 2S of the Industrial Disputes Act, 1947

CALCUTTA HIGH COURT

WP No. 11857 [W] of 2019

Tarakeswar Rewani
-vs-
The UCO Bank & Ors.

For the petitioner : Mr. Malay Dhar, Mr. Biswajit Sarkar.

For the respondents: Mr. Rahul Karmakar, Miss. Priyanka Chetlangia.

The petitioner claims to have been engaged on 14th October, 2001 as a casual sweeper/safai karmachari of the Bank on daily wage basis. No formal letter of appointment/engagement was issued in his favour. Payment was made to him against cash vouchers.

The petitioner alleges that the Bank discontinued his service on and from December, 2014 without any prior intimation. No letter of termination was served upon him. It was on oral instructions that the petitioner was directed not to report to work.
The petitioner contends that the management of the Bank took a policy decision to regularise the service of all contractual sweepers appointed on casual basis and a list was prepared for regularisation of their services. The casual employees who were junior to him and working in the same branch were made permanent whereas his service has been terminated.

An industrial dispute was raised by the trade union of which the petitioner was a member. The Assistant Labour Commissioner (Central) Kolkata recorded the failure of the conciliation proceeding on 4th March, 2019. The union representative was agreeable for Voluntary Arbitration under Section 10A of the Industrial Dispute Act, 1947 while the management representative was not in favour.

The petitioner submits that the action of the respondents is arbitrary, discriminatory and contrary to the provisions of Articles 14 and 16 of the Constitution of India. The petitioner further submits that in the conciliation proceeding the Bank raised the point that there was no employer – employee relationship between the parties and accordingly the ratio of the judgment in the case of the Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. will not be applicable in his case.
The petitioner has accordingly filed the instant writ petition for redressal of his grievances.

The respondents have raised a preliminary objection with regard to the maintainability of the writ petition before this Court. It has been specifically contended that the petitioner was a ‘workman’ as per Section 2S of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). The dispute in question is an ‘industrial dispute’ as per Section 2K of the Act and the issue in question can be decided in accordance with the industrial law.

It has been argued that the Act is a complete code and the petitioner ought to take recourse of the statutory remedy that is available to him. The recording of failure of the conciliation proceeding on 4th March, 2019 is not under challenge. As the petitioner has already availed the remedy under the Act to challenge the action of the respondents accordingly filing a writ petition challenging the self-same action will be hit by the principle of res judicata. A party cannot initiate two separate proceedings before two separate forums on the self-same cause of action. The respondents pray for dismissal of the writ petition.

In response to the preliminary objection raised by the respondent the petitioner submits that the respondents on one hand before the Assistant Labour Commissioner took a specific plea that the employer-employee relationship between the parties do not exist, whereas in the present proceeding the respondents submit that the industrial dispute was maintainable. The respondents cannot approbate and reprobate at the same time.

It has been submitted that the alternative remedy that is available to the petitioner is not an effective and efficacious one. The petitioner was dismissed from service in the year 2014 and the failure of the conciliation proceeding was recorded in the year 2019. The petitioner further submits that his life and livelihood is at stake as he is passing through acute financial crisis. He placed reliance on the judgment delivered by the Hon’ble Supreme Court in the matter of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998)8 SCC 1 wherein the Court held that the alternative remedy would not operate as a bar where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been violation of the principles of natural justice or where the order or proceeding are wholly without jurisdiction or the vires of an Act is challenged.

On the self-same proposition the petitioner relies upon another decision delivered by this Court in the matter of Agricultural Finance Co. Ltd. vs. Micro Small & Medium Enterprises Facilitation Council reported in (2013)5 CHN (Cal) 375 (para 12).

He further relies upon an unreported order dated 21st January, 2011 passed by a Hon’ble Single Judge of this Court in WP No. 25952 (W) of 2010 on the issue that the writ petition was maintainable as there has been fundamental breach of the procedure, and principles of natural justice have not been complied with.

As a preliminary objection has been raised with regard to the maintainability of the writ petition I intend to deal with the same at the very first instance.

Though the petitioner claims that he was appointed by the respondent on daily wage basis neither any appointment/engagement letter nor any termination letter has been annexed to the writ petition. Certain communications have been annexed with the writ petition which gives a faint indication that the petitioner may have been associated with the Bank in the year 2008, but the same does not give any conclusive proof about the engagement of the petitioner by the Bank on regular basis.

The petitioner alleges that he was terminated from service in the year 2014. No representation and/or objection appear to have been filed/raised by the petitioner at the relevant point of time or soon thereafter. Long thereafter in November, 2017 the union of the Bank employees raised an industrial dispute before the Regional Labour Commissioner. On the basis of the same, an industrial dispute conciliation proceeding was initiated in the year 2017 which ended in failure as recorded in the conciliation failure report issued by the Assistant Labour Commissioner (Central) Kolkata on 4th March, 2019.

The petitioner waited from 2014 to raise the labour dispute in the year 2017. No reason whatsoever has been put forward by the petitioner for sitting tight for three long years to raise the industrial dispute. On the failure of the conciliation proceeding the petitioner immediately rushed to the High Court by filing the instant writ application.

As the petitioner has already availed the statutory remedy that was available to him, accordingly, filing a separate writ petition challenging the said termination will not be maintainable. The appropriate remedy would be to continue with the proceeding in accordance with the industrial law.

Moreover, there are several disputed questions of facts which will not be possible for the writ court to decide. The petitioner does not have any document in support of his engagement in the Bank. Neither is there a letter of termination. A couple of vouchers allegedly showing payment of wages and a few communications of the bank allotting sundry jobs does not prove that the petitioner was engaged by the Bank on regular basis. The petitioner is required to prove the same by leading evidence.

The Hon’ble Supreme Court of India in Scooters India & Ors. –vs- Vijai E.V. Eldred reported in (1998) 6 SCC 549 held that the High Court is not the forum to entertain writ petition directly for adjudication of an industrial dispute relating to termination involving disputed questions of fact for which, remedy under the industrial laws was available to the workman. That apart, the writ petition filed more than six years after the date on which the cause of action is said to have arisen and there being no cogent explanation for the delay, the writ petition should have been dismissed on the ground of latches alone.

In the instant case the petitioner was terminated in 2014. The industrial dispute was raised in 2017. Entertaining the instant writ petition challenging the alleged order of termination in the year 2019 is not justified. Delay and latches looms large in the instant case.

In Webel Video Devices Ltd. vs. Prasanta Kumar Das & Ors. reported in 2007(3) CHN 8 the Hon’ble Division Bench of this Court categorically held that when the writ petitioner is a workman and the dispute is an industrial dispute the Industrial Court/Tribunal is the proper forum. In the said case the Hon’ble Court took into consideration various decisions and arrived at the said conclusion.

Availability of an alternative remedy does not oust the High Court’s jurisdiction to entertain a writ petition is settled law. The jurisdiction exercised by the High Court under Article 226 of the Constitution is plenary. The relief under Article 226 being discretionary, it is for the Court to decide, whether or not to entertain an application, depending upon the facts and circumstances of each case. Upon appreciation of the facts of the instant case I am not inclined to exercise my discretion in favour of the petitioner.

The writ petition fails and is accordingly dismissed.

The dismissal of the writ petition however, will not stand in the way of the petitioner from approaching the appropriate forum for redressal of his grievances in accordance with law, if so advised.

W.P No. 11857 [W] of 2019 is dismissed.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.

(Amrita Sinha, J.)

26.07.2019

Dalbir Singh Vs. Union of India & Ors-02/07/19

Summary General Court Martial-In service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice.

FROM: Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir

SUPREME COURT OF INDIA

Dalbir Singh Vs. Union of India & Ors.

[Civil Appeal No. 9885 of 2011]

A.S. Bopanna,J.

1. The appellant is before this Court assailing the order dated August 26, 2011 passed by the Armed Forces Tribunal, Chandigarh Regional Bench at Chandimandir whereby the appeal filed by the appellant herein has been dismissed and the sentence imposed by the Summary General Court Martial (‘SGCM’ for short) has been upheld.

2. The appellant was enrolled in the Army on April 06, 1999 and was posted to 3 Rashtriya Rifles (RR) Battalion (Bn) in the year 2006. While he was so serving, in respect of an incident which occurred on August 13, 2006, action was initiated under Section 34(c) of the Army Act, proceedings were held by the SGCM and the sentence to undergo imprisonment for six months and dismissal from service was imposed. The appellant assailing the same was before the Armed Forces Tribunal and in the said proceedings the order impugned dated August 26, 2011 is passed.

The incident referred to is that according to the prosecution while the appellant was posted to Rashtriya Rifles (RR) Battalion (Bn), it was ordered on August 13, 2006 to cordon and search be carried out in village Darigidiyan in the Jammu and Kashmir. The details of the officers who formed a part of the contingent is also referred in the proceedings. On reaching the village there was a brief contact with the militant and exchange of fire, after which the militants took cover in a maize field. In that view, for the purpose of operation two teams were formed, among others the appellant was a part of the second team. At about 0800 Hrs on August 13, 2006 the team under Subedar Subhash Chand in which the appellant was also a member was divided into two groups.

When the appellant and the group in which he was given the responsibility to search the house along with Naik Sukhdev Raj and Sapper Bachitar Singh was searching, they heard firing from the direction of the maize field and as such the group exited the house from the window and the cordon was thereafter adjusted for the night around the maize field. In that regard the Light Machine Gun (LMG) was also placed and the LMG was manned by Sapper Gurmail Singh and the appellant. To provide support, Sapper Bachitar Singh was positioned to his left at about 57 meters.

At about 2300 Hrs intense fire came from the direction of the maize field towards the LMG spot wherein Sapper Gurmail Singh, Subedar Dalbir Singh and the appellant were positioned. The charge against the appellant is that he left his post, jumped across the stone wall and failed to retaliate against the militants. He failed to use his AK47 and a pistol which was with him due to which the militants broke the cordon, killed Sapper Gurmail Singh and took away the LMG. While jumping over the wall the appellant no doubt was hit by a bullet in the leg.

3. Based on such charge of exhibiting cowardice by abandoning his post, the proceedings were held in the SGCM. The witnesses were examined and on analysing the same the sentence dated March 06, 2008 was imposed. It is the said finding and sentence which was assailed in OA.No.296 of 2010 before the Armed Forces Tribunal. The Armed Forces Tribunal has referred to the evidence of each of the witnesses who had been examined in the SGCM while prosecuting the charge against the appellant and on such reappreciation had arrived at the conclusion that the sentence imposed on the appellant is justified.

4. The learned counsel for the appellant while assailing the finding and conclusion reached by the SGCM and the Armed Forces Tribunal has contended that the conclusion reached is erroneous inasmuch as the evidence tendered by the witnesses has not been properly appreciated. The learned counsel contends that if the case of the prosecution as narrated in the judgment of the Tribunal is taken note and, in that background, the evidence of the witness is referred to, the same would not be sufficient for establishing the charge. It is contended that the appellant himself was injured in the incident and in such circumstance, it cannot be concluded that he had abandoned the post and cannot be branded as a coward.

The learned counsel has referred to the cross examination of the witnesses examined as PW4 to PW6 to contend that the said witnesses have stated that the appellant was a good soldier and had on earlier occasions accompanied the said witnesses in several operations and the appellant is not scared to take part in the operation. The learned counsel, therefore, contends that when the appellant has such record of service, the charge that he had moved away from the post as an act of cowardice cannot be accepted and hence he seeks that the findings recorded by the SGCM and the conclusion reached by the Armed Forces Tribunal be set aside.

5. The learned counsel for the respondents has taken us through the appeal papers including the order passed by the Armed Forces Tribunal. In that regard, it is contended that the SGCM based on the evidence of the prosecution witnesses had arrived at its conclusion. It is pointed out that the Armed Forces Tribunal while considering the appeal filed by the appellant herein has reappreciated the evidence and has thereafter arrived at its conclusion. It is contended that in such circumstance in the appeal of the present nature the concurrent findings and orders rendered by the courts below do not call for interference.

On the factual aspect it is contended that though the appellant presently contends that he had not abandoned the post, there is no explanation as to why even in a grave situation he had not made use of either the AK47 gun or the pistol which was in his possession as a mark of retaliation. In that circumstance, it is contended that when in the attack carried out by the militants the colleague of the appellant late Gurmail Singh had died and there was no action from the appellant, it is a grave situation which warranted the action taken and the same does not call for interference.

6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded.

In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through.

The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK47 was jammed when tried to use it.

7. From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion 9 more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG.

While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious.

In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action.

8. Though the learned counsel for the appellant has sought to refer to the crossexamination of PW4 to PW6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier.

Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified.

9. Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months. For the reasons recorded above, the order of dismissal is justified and does not call for interference. In so far as the order for imprisonment, in the present facts and circumstance we notice that though the appellant had exhibited cowardice, the fact remains that he had also received a gunshot injury in the incident. Further, there is long lapse of time and as such in the peculiar facts and circumstance we are of the opinion that the order of imprisonment need not be implemented at this stage.

10. Consequently, the order of dismissal from service is upheld while the order to undergo rigorous imprisonment is set aside. The appeal is accordingly disposed of with no order as to costs.

J. (M.R. SHAH]

J. (A.S. BOPANNA]

New Delhi,

July 02, 2019