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, (1996) 10 SCC 574 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 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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