STATE OF RAJASTHAN Vs SURENDRA MOHNOT
Bench: ANIL R. DAVE,DIPAK MISRA
Case number: C.A. No.-005860-005861 / 2014
Diary number: 39535 / 2011
Advocates: IRSHAD AHMAD Vs
AISHWARYA BHATI
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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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