State of Rajasthan Vs Surendra Mohnot

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Reportable

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

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. 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

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requisite test and, accordingly, were regularized on the

posts of Lower Division Clerk by order dated 28.4.1993.

3. 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

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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.

8. 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.

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

10. If an eligible employee becomes entitled to second or third selection grade straightway in

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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.”

4. 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.

5. 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

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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.”

6. 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

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infirmity in the order made by the High Court. These appeals are therefore, dismissed. ”

7. 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

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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 Chaturvedi1.

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

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(2009) 12 SCC 49

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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.”

8. 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.

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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.

9. 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

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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.

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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.”

10. 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.

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Civil Appeal (Writ) No. 377/1996 (Chandra Shekhar vs. State of Rajasthan & ors.).”

11. 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.

12. 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.

13. 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

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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

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have cryptically rejected the same that the order was

passed on consent.

14. 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.

15. 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

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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 another2.

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

2 (2000) 8 SCC 4

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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 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.

3 (1997) 1 SCC 621

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Ishar Singh4 and State of Punjab v. Gurdeep Kumar Uppal5 clearly lays down that while reckoning the required length of service the period of ad hoc service has to be excluded.”

16. 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.

17. 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.

18. In Union of India vs. Hira Lal and Others6, 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.

4 (2002) 10 SCC 674 5 (2003) 11 SCC 732 6 (1996) 10 SCC 574

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19. In B.S. Bajwa and Another vs. State of Punjab

and Others7, 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.

20. 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.

21. While dealing with the inherent powers of the High

Court to review its order under Article 226 of the

7 (1998) 2 SCC 523

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Constitution in Shivdeo Singh and others v. State of

Punjab and others8 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.

22. In Aribam Tuleshwar Sharma v. Aribam

Pishak Sharma and others9, 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

8 AIR 1963 SC 1909 9 (1979) 4 SCC 389

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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.”

23. In M/s Thungabhadra Industries Ltd. v The

Government of Andhra Pradesh represented by the

Deputy Commissioner of Commercial Taxes10, 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.”

24. In M/s Northern India Caterers (India) Ltd., v.

Lt. Governor of Delhi11, 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

10 AIR 1964 SC 1372 11 (1980) 2 SCC 167

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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’.”

25. 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 Tirumale12 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.”

26. 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 12 AIR 1960 SC 137

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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.

27. 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

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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

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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

others13, wherein this Court, while delineating on the

13 (2009) 1 SCC 168

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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 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.”

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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.

28. 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

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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.

29. 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 Haryana14,

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

14 (2011) 6 SCC 86

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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.”

30. In Re: 1. Sanjiv Datta, Deputy Secretary,

Ministry of information and Broadcasting, New

Delhi, 2. Kailash Vasdev, Advocate, 3. Kitty

Kumarmangalam (Smt.), Advocate15 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.

31. 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 15 (1995) 3 SCC 619

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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.

32. Consequently, the appeals are allowed without any

order as to costs.

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

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.............................J. [Dipak Misra]

New Delhi; June 30, 2014.

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STATE OF RAJASTHAN Vs SURENDRA MOHNOT

STATE OF RAJASTHAN Vs SURENDRA MOHNOT