NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S). 7400-7401/2018

(ARISING FROM SLP(C) NOS.27450-27451/2017)

ROMA SONKAR           APPELLANT(S)

                 VERSUS

MADHYA PRADESH STATE PUBLIC  SERVICE COMMISSION & ANR. RESPONDENT(S)

J U D G M E N T

KURIAN, J.

Leave granted.

2. The  appellant  appeared  for  the  competitive

examination  for  the  State  service  conducted  during

the  year  2010.   He  approached  the  High  Court  of

Madhya Pradesh seeking benefit of certain answers for

which marks had not been awarded, which was found out

in the process of RTI application.  Learned Single

Judge, as per judgment dated 28.03.2016, granted the

consequential benefits on appointment and seniority.

That was challenged by Respondent No.1/State Public

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Service Commission before the Division Bench.  In the

impugned judgment(s), though the Division Bench, in

principle,  agreed  with  the  process,  the  Division

Bench was not quite happy with the relief moulded by

the  learned  Single  Judge,  hence  the  matter  was

remitted to the learned Single Judge in the matter of

moulding the relief.

3. We  have  very  serious  reservations  whether  the

Division Bench in an intra court appeal could have

remitted a writ petition in the matter of moulding

the relief.  It is the exercise of jurisdiction of

the High Court under Article 226 of the Constitution

of India.  The learned Single Judge as well as the

Division Bench exercised the same jurisdiction.  Only

to avoid inconvenience to the litigants, another tier

of  screening by  the Division  Bench is  provided in

terms of the power of the High Court but that does

not mean that the Single Judge is subordinate to the

Division  Bench.   Being  a  writ  proceeding,  the

Division Bench was called upon, in the intra court

appeal,  primarily  and  mostly  to  consider  the

correctness  or otherwise  of the  view taken  by the

learned  Single  Judge.   Hence,  in  our  view,  the

Division  Bench  needs  to  consider  the  appeal(s)  on

merits by deciding on the correctness of the judgment

of the learned Single Judge, instead or remitting the

matter to the learned Single Judge.

4. When the matter came up before this Court, we

directed the learned Standing Counsel for the State

of Madhya Pradesh to ascertain whether there is any

vacancy  in  the  post  of  Commercial  Tax  Inspector

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available as on today.  A detailed counter affidavit

has been filed on behalf of the State.  It is pointed

out  that  subsequent  selections  have  been  conducted

and  in  case  the  appellant  is  appointed  at  this

juncture it would have serious repercussions on the

seniority of the officers already appointed.  It is

also  stated  in  the  affidavit  that  it  is  for

Respondent  No.1/State  Public  Service  Commission  to

state whether the appellant would have otherwise been

selected.  On a query, the learned counsel appearing

for Respondent No.1/State Public Service Commission

submits that had the appellant been given the benefit

of the marks, he would have been successful.   

5. In the above circumstances, we are of the view

that it is only in the interest of justice and for

doing complete justice between the parties that the

appellant is appointed in one of the available posts

of Commercial Tax Inspector, without treating this as

a precedent. Ordered accordingly. In order to avoid

any future dispute with regard to seniority, we make

it  clear  that  the  appellant  shall  be  entitled  to

seniority  only  with  effect  from  01.08.2018.  The

appointment shall be effected within four weeks from

today.   We  also  make  it  clear  that  in  case  the

appointment  order  is  not  issued  to  the  appellant

within four weeks from today, for all purposes the

appellant shall be deemed to have been appointed with

effect from 01.09.2018.

6. The appeals are, accordingly, disposed of.

7. Pending  applications,  if  any,  shall  stand

disposed of.

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8. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [SANJAY KISHAN KAUL]  

NEW DELHI; JULY 31, 2018.

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