Tuesday, 25 November 2014

Whether relief can be granted in public law remedy only on ground of non filing of counter affidavit by state to writ petition?


 No relief could be granted in a public law remedy as a matter  of
course only on the ground that the State did not file its  counter-affidavit
opposing the writ petition. Further, empty and self-defeating affidavits  or
statements of [pic]Government spokesmen by themselves do not form  basis  to
grant any relief to a person in a public law  remedy  to  which  he  is  not
otherwise entitled to in law.”
 IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
               CIVIL APPEAL NOS.      5860-5861        OF 2014
            (Arising out of S.L.P. (C) Nos. 36116-36117 of 2011)

State of Rajasthan and anr.                  … Appellants

                                   Versus

Surendra Mohnot and others                   …Respondents

Citation;AIR 2014 SC 2925
Dipak Misra, J.



      Leave granted.

Respondent Nos. 1 to 6 were appointed on ad  hoc  basis  as  Lower  Division
Clerks either directly or from amongst the class IV employees  for  a  fixed
tenure for  smooth  functioning  of  administrative  work.   The  nature  of
appointments  are  clear  from  the  appointment  orders  dated   26.6.1986,
5.7.1986  and  25.10.1986.   Respondent  No.  7  was  appointed  on  similar
conditions in January, 1998.  On 28.4.1993, the respondents appeared in  the
requisite test and, accordingly, were regularized  on  the  posts  of  Lower
Division Clerk by order dated 28.4.1993.

On 25.1.1992, the State of Rajasthan issued a circular  which  pertained  to
prescription of Selection Grades for employees in Class IV, Ministerial  and
subordinate services and those holding isolated posts and  fixation  of  pay
in  Selection  Grades.   The  circular  was  made  applicable   to   certain
categories of employees and it also prescribed the period.  Paragraph  2  of
the circular stipulated that (i) the first Selection Grade shall be  granted
from the day following the day  on  which  one  completes  service  of  nine
years, provided that the employee has not got one promotion  earlier  as  is
available in his existing cadre; (ii) the second Selection  Grade  shall  be
granted from the day following the day on which  one  completes  service  of
eighteen years, provided that the  employees  has  not  got  two  promotions
earlier as might be available in his existing cadre and the first  Selection
Grade granted to him was lower than  the  pay  scale  of  Rs.2200-4000;  and
(iii) the third Selection Grade shall be granted from the day following  the
day on which one completes services of twenty  seven  years,  provided  that
the employee has not got three promotions earlier as might be  available  in
his existing cadre and the first or the second Selection  Grade  granted  to
him as the case may be  was  lower  than  the  pay  scale  of  Rs.2200-4000.
Paragraph 3 provided that the service of 9, 18 and 27  years,  as  the  case
may be, would be counted from the date of first appointment in the  existing
cadre/service  in  accordance  with  the   provisions   contained   in   the
Recruitment Rules. It is apt to  note  here  that  the  circular  postulated
certain other conditions which are as follows: -

“7.   Selection Grades in terms of this  order  shall  be  granted  only  to
these employees whose record for service is  satisfactory.   The  record  of
service which makes one eligible for promotion on  the  basis  of  seniority
shall be considered to the satisfactory for the  purpose  of  grant  of  the
selection.

Notwithstanding anything  contained  in  the  foregoing  paragraphs,  if  an
employee forgoes promotion on issue of order to this effect he shall not  be
granted second or third selection grade under this order.

Grant of selection Grade shall not effect the seniority  in  the  cadre  not
the sanctioned strength of each category of posts in the cadre.

If an eligible employee becomes entitled to second or third selection  grade
straightway in terms of this order, his pay would be fixed directly  in  the
second or third selection grade as the case may be  with  reference  to  pay
being drawn immediately before  grant  of  the  second  or  third  selection
grade.”


The aforesaid circular was issued to avoid stagnation in certain  categories
of service with the objective that a stagnated employee should get the  next
pay-scale available for the promotional post without availing the  promotion
because of lack of vacancies after completion of  9,  18  and  27  years  of
service.

The respondents, along with some others, preferred  certain  writ  petitions
challenging the action of the State Government refusing to grant  increments
to them for the period before their regularization in service.  The  learned
single Judge dismissed the writ petitions, and on being challenged  in  D.B.
Civil Special Appeal No. 377 of 1996 (Chandra Shekhar v. State of  Rajasthan
and others), the Division Bench opined thus: -

“The appellants continued in the service from  1986  to  1993  as  temporary
employees in the Pay Scale given in their letters of appointment.   The  Pay
Scale indicated the increment they would earn  periodically.  Thus,  on  the
basis of contract or employment, itself, the  appellants  were  entitled  to
grant of increments during  the  period  they  were  arriving  in  temporary
capacity before the regularization of  their  service.  Therefore,  even  de
hors the rules, they were entitled to grant of increments on  the  basis  of
contract of service.

      We would therefore,  allow  these  appeals,  set  aside  the  impugned
judgment and order of the learned single Judge and  direct  the  respondent,
the State, to pay arrears of increments on  the  basis  of  the  pay  scales
mentioned in the appointment letters of the appellants.  This is to be  done
within six months from today. As a consequence of this order, the  necessary
re-fixation  in  the  pay   scales   granted   to   the   appellants   after
regularization will also be effected within the aforesaid period.”


The said order was assailed before this Court in Civil Appeal  No.  3441  of
1998 and other connected appeals.  This Court, vide order  dated  27.9.2001,
dismissed the appeals by passing the following order:-

“The question raised in these appeals  is  as  to  whether  the  respondents
would not entitled to  grant  of  increments  during  the  period  of  their
temporary service.  Answer to this question would certainly  depend  on  the
terms of service upon which they were employed.

The High Court has examined this aspect of the matter  and  has  found  that
they had been appointed to a particular post which carries a time scale  and
pay.  It that is so,  if  the  benefits  arising  therein  in  granting  the
increments had been given, we do not think there is  any  infirmity  in  the
order made by the High Court.  These appeals are therefore, dismissed. ”


After the civil appeals  were  dismissed,  the  State  Government  issued  a
circular on 17.4.2002 granting annual grade increments.  On  29.6.2009,  the
Government of Rajasthan issued  a  clarificatory  circular  prescribing  the
method for grant of Selection Grades as well as the  manner  of  computation
of 9, 18 and 27 years.  It referred to the earlier circular dated  25.1.1992
and the Finance Department Order  No.  F.20(1)FD(Gr.2)/92  dated  03.04.1993
whereby it was clarified that for the purpose of grant of  Selection  Grades
service was to be counted from the date  the  employee  had  regularly  been
appointed in the existing cadre/service as per the provisions  contained  in
the relevant recruitment rules.  Referring to the earlier  Government  order
it was stated that it had been clarified therein that the period of  service
rendered before regular  appointment  in  accordance  with  the  recruitment
rules to the post would not be counted for grant  of  Selection  Grade.   In
2009 circular the claim of the employees for grant of Selection  Grade  from
the date of ad hoc appointment and the action of the State  Government  were
referred to.  It was also stated therein how the State Government  had  come
to  this  Court  in  State  of  Rajasthan  and  others  v.  Jagdish   Narain
Chaturvedi[1].  Eventually, certain directions were issued to the  competent
authorities which are seemly to be reproduced here: -

“It is, therefore, enjoined upon all the authorities competent  to  sanction
selection grade that in case where selection grades  have  been  granted  to
the  State  Employees  by  counting  the  service  rendered  before  regular
appointment  in  the  cadre/service  in  accordance  with   the   provisions
contained in the  relevant  recruitment  rules  i.e.  ad  hoc  service/work-
charged service/daily wages etc. may be reviewed.   Such  employees  may  be
granted selection grades by counting  the  service  rendered  by  them  only
after regular appointment  in  the  cadre/service  in  accordance  with  the
provisions contained in the relevant  recruitment  rules.   A  copy  of  the
judgment dated 08.05.2009 of the Hon’ble Supreme Court is enclosed.

      All such cases may be reviewed and  decided  by  31st  of  July,  2009
positively and compliance report should be conveyed  to  the  Administrative
Department latest by 10th of August,  2009.  The  Administrative  Department
shall ensure that compliance of the aforesaid orders is made in time by  all
the appointing authorities under them. In case of non  compliance  of  these
orders, Administrative Department may take  action  against  the  defaulting
authorities.

      The excess payment drawn by the concerned employees due  to  grant  of
selection grades to them by counting the  service  rendered  before  regular
appointment  in  the  cadre/service  in  accordance  with   the   provisions
contained in the relevant recruitment rules shall, however, to be  recovered
for the period upto 30.06.2009 only. From 01.07.2009,  the  payment  of  pay
and allowance shall be made on the basis of revised  rates  of  pay  as  per
this order.”


As  the  factual  score  would  demonstrate  the  respondents  submitted   a
representation for grant of selection grade on completion  of  18  years  on
the foundation that they had been granted first  selection  pay  scale  from
the date of their initial appointment vide order  dated  20.7.2000  but  had
not been extended the benefit of the second selection  grade  in  2009.  The
said representation came to be  rejected  vide  order  dated  10.3.2010  for
which the respondents preferred S.B. Civil Writ Petition No.  4185  of  2010
before the High Court  for  issue  of  a  writ  of  mandamus  for  grant  of
selection grade from the date of their initial appointment or from the  date
when the juniors  to  some  of  the  petitioners  were  granted.  A  counter
affidavit was filed by the State Government stating, inter  alia,  that  the
controversy  was  no  more  res  integra  in  view  of  the  legal  position
enunciated  in  Jagdish  Narain  Chaturvedi  (supra)  and  other   connected
matters.  Denying the averments that the case would not be  covered  in  the
litigation pertaining to grant of increments in the case of Chandra  Shekhar
(supra) it was asseverated that the said controversy squarely  pertained  to
whether the employees were entitled for  increments  during  the  period  of
temporary service which is different than grant of  selection  grade,  which
is governed by the  prescriptions  enumerated  in  the  circulars.   It  was
categorically asserted that the temporary service was  not  to  be  included
while counting the years of service for the purpose of  grant  of  selection
grade.

Be it noted, after the decision of this Court in Jagdish  Narain  Chaturvedi
(supra) the State Government  had  issued  a  circular  on  20.8.2010  which
prescribed selection  grade  for  employees  in  Class-IV,  Ministerial  and
Subordinate Services and those holding isolated pots and fixation of pay  in
Selection Grades issued in accordance with the decision  in  Jagdish  Narain
Chaturvedi’s case. Clarifying the postulates in  the  earlier  circulars  it
was laid down as follows: -

“As per this judgment dated  8.5.2009  of  the  Hon’ble  Supreme  Court  the
period of ad-hoc service is not  countable  for  the  purpose  of  grant  of
selection grades.  In  compliance  State  Government  issued  an  order  No.
F.16(2) FD/ Rules/98 dated 29.6.2009 prescribing the method of  fixation  of
pay in Selection Grade w.e.f. 1.7.2009.

      Representations have been received  that  order  dated  29.6.2009  has
resulted in substantial drop in emoluments of lowly paid  employees  causing
financial hardship.

      Accordingly, the State Government has reconsidered the matter  and  in
partial modification of order of even number dated 29.6.2009,  the  Governor
is pleased to order that  in  cases  where  Government  servants  have  been
granted selection grade prior to order dated 29.6.2009  by  counting  period
of ad-hoc service, such case may not be reviewed. However, where  additional
selection grades become admissible to such employees after  29.6.2009  under
the rules, this shall be granted by excluding the period of  ad-hoc  service
as per the orders of Hon’ble Supreme Court. For example,  if  any  employees
got  the  advantage  of  first  selection  grade  prior  to  29.6.2009,   on
completion of service of 9 years (after inclusion of say, three  years,  ad-
hoc service), his next selection  grade  on  completion  of  service  of  18
years, on or after 29.6.2009 shall be granted only after three years of  ad-
hoc service is added to 18 years, i.e., 18+3=21 years.

      All pending cases would be decided as per these orders.

      The cases of grant of selection grade decided subsequent to  order  of
even number dated 29.6.2009, may be reviewed and revised in accordance  with
the provisions  of  this  order.   Similarly  pension  cases  of  Government
servants finalized after re-fixation of pay under order dated 29.6.2009  may
also be reviewed and revised.  However, cases of persons who  retired  prior
to 29.6.2009 would not be re-opened.”


When the position stood thus, the writ petition prepared by the  respondents
came for hearing before the writ court on 11.11.2010.   The  learned  single
Judge passed the following order: -

“Counsel for the parties are in agreement that the controversy  involved  in
this petition for writ is not more res integra in  view  of  Division  Bench
judgment of this Court passed  in  D.B.  Civil  Special  Appeal  (Writ)  No.
377/1996 (Chandra  Shekhar  vs.  State  of  Rajasthan  &  ors.)  decided  on
06.01.1998 as affirmed by  Hon’ble  Supreme  Court  on  rejection  of  Civil
Appeal No.3443/1998 (State of Rajasthan & Anr. vs. Chandra Shekhar  &  Anr.)
on 27.9.2001.

      I have also examined the record of case  and  also  gone  through  the
judgment of this Court in the case of Chandra Shekhar (Supra).

      The controversy involved in this petition for  writ  as  a  matter  of
fact stands covered by the judgment aforesaid.  Accordingly,  this  petition
for writ is also allowed in the terms of Division  Bench  judgment  of  this
Court in D.B. Civil Appeal (Writ) No. 377/1996 (Chandra  Shekhar  vs.  State
of Rajasthan & ors.).”


An application for review was filed averring that the  controversy  was  not
covered by the decision in Chandra Shekhar (supra)  but  by  Jagdish  Narain
Chaturvedi (supra).  However, the said petition for review was  rejected  by
the learned single Judge vide order dated 7.2.2011.

Being dissatisfied,  the  State  Government  preferred  D.B.  Civil  Special
Appeal (Writ) No. 835 of 2011 and the  Division  Bench  on  6.7.2011,  after
reproducing the order of the learned single Judge, opined that as  the  same
was a consent order, no appeal could be  filed.   Being  of  this  view  the
Division Bench dismissed the appeal.  An  application  for  review  did  not
meet with success.

Questioning the pregnability of  the  decision  of  the  writ  court  it  is
submitted by Dr. Singhvi that whe it was brought to the  notice  of  learned
Single Judge by way of review that the decision that had  been  referred  to
in the order did not pertain to the lis in question but was covered  by  the
binding precedent of this Court in  Jagdish  Narain  Chaturvedi  (supra)  he
should have allowed the review application and proceeded to pass a  decision
to record a verdict in accordance with law.  It is also urged  by  him  that
the Division Bench while dealing with the intra-court appeal  did  not  bear
in mind that the State  had  preferred  the  review  application  which  had
already been dismissed on the ground that it was not open to  the  State  to
say that the  controversy  was  not  covered  by  the  decision  in  Chandra
Shekhar’s case, and it could only be raised in appeal.  Learned counsel  for
the State would submit that the Division Bench  while  dealing  with  appeal
only recorded that the order had been  passed  with  the  agreement  of  the
parties and, therefore, it did not call for  any  interference  and  it  was
open to the appellants to approach the writ court first and then invoke  the
jurisdiction  in  intra-court  appeal,  which   graphically   exposits   the
erroneous approach.  It is further urged by him that when on the face  of  a
binding precedent that squarely pertains to the issue between the State  and
similarly situated employees the writ  court  should  not  have  cryptically
rejected the same that the order was passed on consent.

Ms.  Aishwarya  Bhati,  learned  counsel  appearing  for   the   respondents
submitted that the State having conceded the  position  cannot  turn  around
and argue something different to deprive the  respondents  the  benefits  of
the decision of the High Court as it does not behove on the part of a  model
employer.  It is canvassed by her that when the first  selection  grade  was
granted after completion of 9 years from the  date  of  initial  appointment
there is no justification not to accept the said date and fix  the  date  of
commencement from the date of regularization i.e., 28.04.1993 as that  would
cause immense hardship and some of the respondents, though deserving,  would
be deprived of the benefit of selection grade  on  completion  of  27  years
which would affect their pensionary benefits.

At the very outset, we may clearly state that the decision in  the  case  of
Chandra Shekhar (supra) pertains to  grant  of  increments  for  the  period
prior to regularization. It has nothing to do with the  grant  of  selection
grade. The circulars which we have reproduced hereinbefore relate  to  grant
of selection grade.  In this backdrop, it is to be seen what has  been  laid
down by this Court in the case of Jagdish  Narain  Chaturvedi  (supra).   In
the said case, a two-Judge Bench was dealing with the issue whether  ad  hoc
appointments or appointments on daily wages or work-charge  basis  could  be
treated as appointments made to the cadre/service  in  accordance  with  the
provisions contained  in  the  recruitment  rules  as  contemplated  by  the
Government orders dated 25.1.1992 and 17.2.1998. It was contended on  behalf
of  the  State  that  stagnation  benefits  were  given  from  the  date  of
regularization  and  for  the  said  purpose  reliance  was  placed  on  the
authority in State of Haryana v. Haryana Veterinary & AHTS  Association  and
another[2].  Reference was made to the language used in the circulars  which
uses the words “appointments relatable to the existing cadre/service”.   The
Court  referred  to  the  provisions  of  Rajasthan  Absorption  of  Surplus
Personnel Rules, 1969 and various paragraphs from the Haryana case  and  the
decision in Ram Ganesh Tripathi v. State of U.P.[3]  and  came  to  hold  as
follows: -

“18. In order to become “a member of service” a candidate must satisfy  four
conditions, namely,

(i)   the appointment must be in a substantive capacity;

(ii)  to a post in the service i.e. in a substantive vacancy;

(iii)       made according to rules;

(iv)  within the quota prescribed for the source.

Ad hoc appointment is always to a post but not to the cadre/service  and  is
also  not  made  in  accordance  with  the  provisions  contained   in   the
recruitment rules for regular appointment. Although the adjective  “regular”
was  not  used  [pic]before  the  words   “appointment   in   the   existing
cadre/service” in Para 3 of the G.O.  dated  25-1-1992  which  provided  for
selection pay scale the appointment mentioned there is obviously a need  for
regular appointment made in accordance with the Recruitment Rules. What  was
implicit in the said paragraph of the G.O. when it refers to appointment  to
a cadre/service has been made explicit by the clarification  dated  3-4-1993
given in respect of Point 2. The same has been incorporated  in  Para  3  of
the G.O. dated 17-2-1998.”


      Proceeding further, the Court ultimately held thus: -

“Apart from Haryana Veterinary case the position in law as stated  in  State
of Punjab v. Ishar Singh[4] and State of Punjab v.  Gurdeep  Kumar  Uppal[5]
clearly lays down that while reckoning the required length  of  service  the
period of ad hoc service has to be excluded.”


From the aforesaid enunciation of law it is quite vivid that the period  for
grant of selection grade has to be reckoned from the date of  regularization
in service and not prior to that.  Thus,  the  aforesaid  judgment  of  this
Court pertains to the same circular and is  a  binding  precedent  from  all
spectrums.

It is well settled in law  that  there  can  be  no  estoppel  against  law.
Consent given in a court that a controversy is covered by a  judgment  which
has no applicability whatsoever and pertains to a  different  field,  cannot
estopp the party from raising  the  point  that  the  same  was  erroneously
cited.

In Union of India vs. Hira Lal and Others[6], it  has  been  held  that  the
concession made by the government advocate on the question of law could  not
be said to be binding upon the Government.

In B.S. Bajwa and Another vs. State of  Punjab  and  Others[7],  a  Division
Bench of the High Court of Punjab and Haryana had granted the relief on  the
basis of  concession  given  by  the  learned  Additional  Advocate  General
without considering the effect of the same or of  taking  into  account  the
inconsistency  with  its  earlier  finding.   This  Court  held   that   the
concession on the point, being one of law, could not  bind  the  State  and,
therefore, it was open to the State to withdraw and it had been so  done  by
filing a review petition in the High Court itself.

Having stated so, we shall presently proceed to  address  whether  the  writ
court was justified in rejecting the application for review.  The  order  of
rejection  only  notices  that  the  order  was  passed  on  agreement  and,
therefore, it could not  be  the  subject-matter  of  review.   The  learned
single Judge, as it appears, did not think it appropriate to appreciate  the
stand of the State and passed an absolutely laconic order.

While dealing with the inherent powers of  the  High  Court  to  review  its
order under Article 226 of the Constitution in Shivdeo Singh and  others  v.
State of Punjab and others[8] the Constitution Bench observed  that  nothing
in Article 226 of the Constitution precludes a High  Court  from  exercising
the power of review which inheres in every court of plenary jurisdiction  to
prevent  miscarriage  of  justice  or  to  correct  grave  palpable   errors
committed by it.

In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others[9],  the  two-
Judge Bench speaking through Chinappa Reddy, J. observed thus:-

“It is true as observed by this Court in Shivdeo Singh v. State  of  Punjab,
there is nothing in Article 226of the Constitution to preclude a High  Court
from exercising the power of review which inheres in every court of  plenary
jurisdiction to prevent miscarriage of  justice  or  to  correct  grave  and
palpable errors committed by it.  But, there are definitive  limits  to  the
exercise of the power of review.  The power of review  may  be  exercised  o
the discovery of new and important  matter  or  evidence  which,  after  the
exercise of due diligence  was  not  within  the  knowledge  of  the  person
seeking the review or could not be produced by him  at  the  time  when  the
order was made; it may be exercised where some mistake or error apparent  on
the face of the record is found; it may also be exercised on  any  analogous
ground.  But, it may not be exercised on the ground that  the  decision  was
erroneous on merits.  That would be the province of a court  of  appeal.   A
power of review is not to  be  confused  with  appellate  powers  which  may
enable an appellate Court to correct all manner of errors committed  by  the
subordinate Court.”


In M/s Thungabhadra Industries Ltd.  v  The  Government  of  Andhra  Pradesh
represented by the  Deputy  Commissioner  of  Commercial  Taxes[10],   while
dealing with the concept of review the court opined thus:-

“A review is by  no  means  an  appeal  in  disguise  whereby  an  erroneous
decision is reheard and corrected, but lies only for patent  error.   We  do
not consider that this furnishes a suitable occasion for dealing  with  this
difference exhaustively or in any great detail, but it would suffice for  us
to say that where without any elaborate argument  one  could  point  to  the
error and say here is a substantial point of law which  stares  one  in  the
face, and there could reasonably be no two opinions entertained about it,  a
clear case of error apparent on the face of the record would be made out.”


In M/s Northern India Caterers (India) Ltd., v. Lt. Governor  of  Delhi[11],
R.S. Pathak, J (as His Lordship then was) while speaking about  jurisdiction
of review observed that:-

“.....that it is beyond dispute that a review proceeding cannot  be  equated
with the original hearing of the case, and  the  finality  of  the  judgment
delivered by the Court will not be  reconsidered  except  ‘where  a  glaring
omission or patent mistake or like grave  error  has  crept  in  earlier  by
judicial fallibility’.”


To appreciate what constitutes an error apparent on the face of  the  record
the  observations  of  the  Court  in  Satyanarayan  Laxminarayan  Hegde  v.
mallikarjun Bhavanappa Tirumale[12] are useful:-

“An error which has to be established by a long-drawn process  of  reasoning
on points where there may conceivably be two opinions can hardly be said  to
be an error apparent on the face of the record.  Where an alleged  error  is
far  from  self-evident  and  if  it  can  be  established,  it  has  to  be
established, by lengthy and complicated arguments, such an error  cannot  be
cured by a writ of certiorari according to the rule governing the powers  of
the superior court to issue such a writ.”


In the case at hand, as the factual score has uncurtained,  the  application
for review did not require a long drawn process of reasoning.   It  did  not
require any advertence on merits which is in the province of  the  appellate
court.  Frankly speaking, it was a manifest and  palpable  error.   A  wrong
authority which had nothing to do with  the  lis  was  cited  and  that  was
conceded to.  An already existing binding precedent was ignored.  At a  mere
glance it would have been clear to the writ  court  that  the  decision  was
rendered on the basis of a wrong authority.   The  error  was  self-evident.
When such self-evident errors come to the notice of the court and  they  are
not rectified in exercise of review jurisdiction or jurisdiction  of  recall
which  is  a  facet  of  plenary  jurisdiction  under  Article  226  of  the
Constitution,  a  grave  miscarriage  of  justice  occurs.   In  appeal  the
Division Bench, we assume, did not think  even  necessary  to  look  at  the
judgments and did not apprise  itself  the  fact  that  an  application  for
review had already been preferred before the learned Single Judge and  faced
rejection.  As it  seems,  it  has  transiently  and  laconically  addressed
itself to the principle enshrined in Section 96 (3) of  the  Code  of  Civil
Procedure, as a consequence  of  which  the  decision  rendered  by  it  has
carried the weight of legal vulnerability.

Another aspect is required to be taken note of especially regard  being  had
to the facts of the  case.   The  learned  single  Judge  allowed  the  writ
petition accepting the submission that the controversy was  covered  by  the
decision in Chandra Shekhar (supra). The order of the learned  single  Judge
has been recorded on the basis of concession given by  learned  counsel  for
the State.   The  counter  affidavit  filed  by  the  State  was  absolutely
contrary to the said statement.  It is further perceivable that the  learned
single Judge has also recorded that he had perused  the  records.   It  does
not appear to be so, for the counter affidavit  and  the  documents  annexed
thereto clearly reveal that the stand of the State was that the  controversy
in Chandra Shekhar’s case pertained  to  the  grant  of  increment  for  the
period when an employee had not been regularized in the cadre  and  did  not
relate to the grant of selection grade  which  only  gets  ripened  for  the
purpose of computation of period from the date of regularization. In such  a
case, we are disposed to think, it was obligatory on the part of  the  court
at least to  see  whether  the  controversy  was  covered  by  the  decision
referred to.  We are  absolutely  certain,  had  the  learned  single  Judge
perused the judgment by the  Division  Bench  rendered  in  Chandra  Shekhar
(supra) and the order passed by this Court  in  Civil  Appeal  No.  3443  of
1998, he would have addressed the  lis  in  a  different  manner.   We  have
already stated the legal position with regard to  legal  impact  as  regards
the concession pertaining to the position in  law.   That  apart,  we  think
that an act of the Court should not prejudice anyone  and  the  maxim  actus
curiae neminem gravabit gets squarely applicable.  It is  the  duty  of  the
Court to see that the process of the court is not abused and if the  court’s
process has been abused by making a statement and the  same  court  is  made
aware of it, especially the writ court, it can always recall its own  order,
for the concession  which  forms  the  base  is  erroneous.  Similarly,  the
Division Bench in  the  intra-court  appeal  instead  of  adverting  to  the
concept of consent decree as stipulated under Section 96(3) of the  Code  of
Civil Procedure, should have been guided by the  established  principles  to
test whether the concession in law was correct or not.  In this context,  it
is useful to refer  to  a  passage  from  City  and  Industrial  Development
Corporation v. Dosu Aardeshir  Bhiwandiwala  and  others[13],  wherein  this
Court, while delineating on the power of  jurisdiction  under  Article  226,
has expressed thus:-
“The Court while exercising its jurisdiction  under  Article  226  is  duty-
bound to consider whether:

(a)   adjudication of  writ  petition  involves  any  complex  and  disputed
questions of facts and whether they can be satisfactorily resolved;

(b)   the petition reveals all material facts;

(c)   the petitioner  has  any  alternative  or  effective  remedy  for  the
resolution of the dispute;

(d)   person invoking the jurisdiction is guilty of  unexplained  delay  and
laches;

(e)   ex facie barred by any laws of limitation;

(f)   grant of relief is against public policy or barred by any  valid  law;
and host of other factors.

The Court in appropriate cases in its discretion may  direct  the  State  or
its instrumentalities as the case may be to file proper  affidavits  placing
all the relevant facts truly and accurately for  the  consideration  of  the
Court and particularly in cases where public  revenue  and  public  interest
are involved. Such directions are always required to  be  complied  with  by
the State. No relief could be granted in a public law remedy as a matter  of
course only on the ground that the State did not file its  counter-affidavit
opposing the writ petition. Further, empty and self-defeating affidavits  or
statements of [pic]Government spokesmen by themselves do not form  basis  to
grant any relief to a person in a public law  remedy  to  which  he  is  not
otherwise entitled to in law.”


      The  above  quoted  passage  speaks  eloquently  and  we  respectfully
reiterate.  And we add, non-acceptance of a mistake is not  a  heroic  deed.
On the contrary, it reflects flawed devotion to obstinancy.   The  ‘pink  of
perfection’ really blossoms in acceptance.

Our preceding analysis would clearly show that the dictum in Jagdish  Narain
Chaturvedi  (supra)  covers  the  controversy.   The  respondents  prior  to
regularization were not members of service  or  a  part  of  the  cadre  and
hence, the benefit of the circular pertaining to  selection  grade  was  not
applicable to them.  Therefore, the irresistible  conclusion  is  that  they
are only entitled to the  benefit  of  selection  grade  from  the  date  of
regularization.  The period of nine years, eighteen years and  twenty  seven
years has to be computed from that date.  True it is,  they  may  have  been
given the first benefit on an erroneous understanding of  the  circular  and
also prior to the decision in Jagdish Narain Chaturvedi’s  case.   But  that
would not entitle them to assert their claim on that basis, for  that  would
be contrary to the law of the land as stated in Jagdish Narain  Chaturvedi’s
case. Be it noted, the State, as the latter  circular  would  indicate,  has
decided not to take any steps for recovery of the  benefit.   Therefore,  we
conclude and hold that  the  writ  petition  preferred  by  the  respondents
before the High Court deserves dismissal and, accordingly, the order  passed
by the writ court and the decision in intra-court appeal are set  aside  and
the writ petition stands dismissed.

Before parting with  the  case,  we  are  constrained  to  state  oft-stated
principles relating to the sacred role of the members of the Bar.  A  lawyer
is a responsible officer of the court. It is his duty as the officer of  the
court to assist the court  in  a  properly  prepared  manner.  That  is  the
sacrosanct role assigned to an advocate.  In O.P. Sharma and others v.  High
Court of Punjab and Haryana[14], dealing with the  ethical  standard  of  an
advocate, though in a different context,  a  two-Judge  Bench  has  observed
thus:-

“An advocate is expected to act with utmost sincerity and respect.   In  all
professional functions, an advocate  should  be  diligent  and  his  conduct
should also be diligent and should conform to the requirements  of  the  law
by which an advocate plays a vital role in the preservation of  society  and
justice system.  An advocate is under an obligation to uphold  the  rule  of
law and ensure that the public justice system is enabled to function at  its
full potential.  Any violation of the principles of professional  ethics  by
an  advocate  is  unfortunate  and  unacceptable.   Ignoring  even  a  minor
violation/misconduct militates against the  fundamental  foundation  of  the
public justice system.”


In Re:  1. Sanjiv Datta,  Deputy  Secretary,  Ministry  of  information  and
Broadcasting,  New  Delhi,   2.   Kailash   Vasdev,   Advocate,   3.   Kitty
Kumarmangalam (Smt.), Advocate[15] the court observed  that  it  is  in  the
hands of the members of  the  profession  to  improve  the  quality  of  the
service they render both to the litigants and public and to the  courts  and
to brighten their image in the society.  The perceptible casual approach  to
the practice of profession was not appreciated by the Court.

As far as the counsel for the  State  is  concerned,  it  can  be  decidedly
stated that he has a higher responsibility. A  counsel  who  represents  the
State is required to state the facts in a correct  and  honest  manner.   He
has to discharge his duty  with  immense  responsibility  and  each  of  his
action has to be sensible.  He  is  expected  to  have  higher  standard  of
conduct.  He has a special duty towards the court in  rendering  assistance.
 It is because he has access to the public records and is  also  obliged  to
protect the public interest.  That apart, he has a moral  responsibility  to
the court.  When these values corrode, one can say “things fall apart”.   He
should always remind himself that an advocate, while  not  being  insensible
to ambition and  achievement,  should  feel  the  sense  of  ethicality  and
nobility of the legal profession in his bones.  We  hope,  hopefully,  there
would be apposite response towards duty; the hollowed and honoured duty.







Consequently, the appeals are allowed without any order as to costs.


                                             .............................J.
                                                              [Anil R. Dave]



                                             .............................J.
                                                               [Dipak Misra]
New Delhi;
June 30, 2014.


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[1]



       (2009) 12 SCC 49
[2]    (2000) 8 SCC 4
[3]    (1997) 1 SCC 621
[4]    (2002) 10 SCC 674
[5]    (2003) 11 SCC 732
[6]    (1996) 10 SCC 574
[7]    (1998) 2 SCC 523
[8]    AIR 1963 SC 1909
[9]    (1979) 4 SCC 389
[10]   AIR 1964 SC 1372
[11]   (1980) 2 SCC 167

[12]   AIR 1960 SC 137
[13]   (2009) 1 SCC 168

[14]   (2011) 6 SCC 86

[15]   (1995) 3 SCC 619



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