Regain of Seniority / Catch up Rule

UoI v. Sukh Nandan Pande

 

no mandamus for legislation or subordinate legislation

1.            State of J&K v. A.R. Zakki, 1992 Supp (1) SCC 548 : 1992 SCC (L&S) 427 :  (1992) 20 ATC 285 at page 554

10. In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J and K Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service of the State of J and K and for framing of such rules, the Governor is required to consult the Commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.

2.            The same has also been previously taken by Hon'ble Supreme Court in Supreme Court Employees' Welfare Association v. Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569] wherein it has been laid down: (SCC p. 219, para 51)

"There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority."

 

3.            Thus, it is stated that framing of a rule is a matter of policy, especially the rules relating to recruitment to public posts.

Improper Selection

In Dy. Executive Engineers' Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 at page 601, it has been by this Hon'ble Court that:

 

“11. The entire appointment of direct recruits, therefore, from the waiting list was not proper. But these persons have been appointed and are working now at least for five years. It would, therefore, be unjust and harsh to quash their selection at this stage.”

 

Similar view has been taken by this Hon'ble Court in Nayagarh Cooperative Central Bank Limited and Another v. Narayan Rath & Another, (1977) 3 SCC 576:

“4. The writ petition filed by Respondent 1 could succeed, in our opinion, on the narrow ground that he had been permitted to function for over thirteen years as secretary of the Bank and that his appointment as Secretary was decided upon in a meeting over which the Registrar of Cooperative Societies had himself presided. The writ petition in substance is directed not against any order passed by the Cooperative Bank but against the order passed by the Registrar disapproving the appointment of Respondent 1 as secretary of the Bank. It was not open to the Registrar, in our opinion, to set aside Respondent 1's appointment as a secretary after having acquiesced in it and after having for all practical purposes, accepted the appointment as valid. It is undesirable that appointments should be invalidated in this manner after a lapse of several years.”

 

Equity in Service Law

It is settled law that there is no scope of equity against statutory rules in service matters. (State of Uttarakhand v. Archana Shukla, (2011) 15 SCC 194) and Ahmedabad Municipal Corpn. v. Virendra Kumar Jayantibhai Patel, (1997) 6 SCC 650 (sympathy or equity is out of place especially where selection is governed by statutory rules)

Concession by Counsel

Central Council for Research in Ayurveda & Siddha v. K. Santhakumari (Dr), (2001) 5 SCC 60 : 2001 SCC (L&S) 772 : 2001 SCC OnLine SC 749 at page 64

12. In the instant case, the selection was made by the Departmental Promotion Committee. The Committee must have considered all relevant facts including the inter se merit and ability of the candidates and prepared the select list on that basis. The respondent, though senior in comparison to other candidates, secured a lower place in the select list, evidently because the principle of “merit-cum-seniority” had been applied by the Departmental Promotion Committee. The respondent has no grievance that there were any mala fides on the part of the Departmental Promotion Committee. The only contention urged by the respondent is that the Departmental Promotion Committee did not follow the principle of “seniority-cum-fitness”. In the High Court, the appellants herein failed to point out that the promotion is in respect of a “selection post” and the principle to be applied is “merit-cum-seniority”. Had the appellants pointed out the true position, the learned Single Judge would not have granted relief in favour of the respondent. If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot enure to the benefit of any party.

13. This Court in Uptron India Ltd. v. Shammi Bhan [(1998) 6 SCC 538 : 1998 SCC (L&S) 1601 : AIR 1998 SC 1681] pointed out that a wrong concession on question of law made by counsel is not binding on his client and such concession cannot constitute a just ground for a binding precedent.

14. Therefore, even if the appellants had mistakenly contended in the High Court that the principle of seniority-cum-fitness was to be followed for promotion to the post of Research Officer, the departmental rules clearly show that the promotion was in respect of a “selection post” and the promotion was to be made on the basis of the inter se merit of the eligible candidates. In that view of the matter, the respondent was not entitled to get promotion to the post of Research Officer on the strength of her seniority alone. The seniority list prepared by the Departmental Promotion Committee was not challenged by the respondent on other grounds and we also do not find any ground to assail that select list. Thus, the writ petition is liable to be dismissed by setting aside the orders made therein and in the writ appeal arising therefrom. Therefore, the appeal succeeds and is allowed, however, without costs.

 

consequential order - main order

 

1.    The law is settled that Special Leave Petition only against order passed in review petition is not maintainable (See, Ripa Sharma (2013) 3 SCC 63, para.5 and 6). Therefore, the Special Leave Petition (Civ) No. 5597 of 2017, filed only against the Review Order was rightly dismissed by this Hon'ble Court. (See also Bussa Overseas (2016) 4 SCC 696)

Writ against ChargeSheet

Ministry of Defence v. Prabhash Chandra Mirdha, (2012) 11 SCC 565 : (2013) 1 SCC (L&S) 121 : 2012 SCC OnLine SC 466 at page 572

10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327] , Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603 (2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304] .)

 

Doctrine of Merger

S.E. Graphites (P) Ltd. v. State of Telangana, (2020) 14 SCC 521

 

once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one

Contempt is between contemnor and the court

Review - Error apparent - contrary to statutory scheme

Failure to notice applicable statutory regime is a ground for review.

(2019) 17 SCC 385 Sunil Vasudeva v. Sundar Gupta, paras. 26 & 29

Failure to notice applicable statutory regime is a ground for review.

Service Matter - extending benefit to similarly situated employees - fence sitters etc

State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347, PARA 22

 

not necessary to set aside the consequential order

In State of Kerala v. Puthenkavu N.S.S. Karayogam, (2001) 10 SCC 191 at page 192, the Supreme Court has held that :

 

9. Mr E.M.S. Anam, learned counsel for the petitioner Vadavucode-Puthencruz Grama Panchayat submitted that pursuant to the impugned order learned Single Judge had passed consequential orders and he pleads that this Court may interfere with the said consequential orders also. We find it unnecessary because when once the main impugned order is set aside, any other consequential order made pursuant to the same would automatically go.

 

Delay in filing S 138 complaint

 

NEGOTIABLE INSTRUMENTS ACT, Ss. 138 & 142 — CRIMINAL PROCEDURE CODE, 1973, Ss. 473, 200, 202 & 203 — Time-barred complaint — Complainant obliged to submit an application for condonation of delay if prima facie complaint filed beyond period of statutory limitation — Else complaint can be dismissed complaint for delay any time and even in appeal or in revision

2003 SCC OnLine Bom 1132 : (2003) 2 MWN (Cri) DCC 73 (Bom) : 2004 Cri LJ 1687 : (2004) 4 BC 128 : (2004) 3 BC 33

J 1

HIGH COURT'S ROLE AS COURT OF FIRST INSTANCE

 

1. P N Kumar vs Municipal Corporation Of Delhi, 1987 (4) SCC 609

 

2. We are of the view that this petition should be disposed of without expressing any opinion on the merits of the case reserving liberty to the petitioners to file a petition, if so advised, before the High Court under Article 226 of the Constitution. We accordingly dispose of this petition for the following reasons:

“(1) The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution.

(2) The relief prayed for in the petition is one which may be granted by the High Court and any of the parties who is dissatisfied with the judgment of the High Court can approach this Court by way of an appeal. The fact that some case involving the very same point of law is pending in this Court is no ground to entertain a petition directly by-passing the High Court.

(3) If the parties get relief at the High Court, they need not come here and to that extent the burden on this Court is reduced.

(4) The hearing of the case at the level of the High Court is more convenient from several angles and will be cheaper to the parties. It saves a lot of time too. It will be easier for the clients to give instructions to their lawyers.

(5) Our High Courts are High Courts. Each High Court has its own high traditions. They have Judges of eminence who have initiative, necessary skills and enthusiam. Their capacity should be harnessed to deal with every type of case arising from their respective areas, which they are competent to dispose of.

(6) Every High Court Bar has also its high traditions. There are eminent lawyers practising in the High Courts with wide experience in handling different kinds of cases, both original and appellate. They are fully aware of the history of every legislation in their States. Their services should be made available to the litigants in the respective States.

(7) This Court has no time today even to dispose of cases which have to be decided by it alone and by no other authority. Large number of cases are pending from 10 to 15 years. Even if no new case is filed in this Court hereafter, with the present strength of Judges it may take more than 15 years to dispose of all the pending cases.

(8) If the cases which can be filed in the High Courts are filed in the High Court and not in this Court this Court's task of acting as an original court which is a time-consuming process can be avoided and this Court will also have the benefit of the decision of the High Court when it deals with an appeal filed against such decision.

(9) If cases which may be filed in the High Courts are filed in this Court it would affect the initiative of the High Courts. We should preserve the dignity, majesty and efficiency of the High Courts. The taking-over by this Court of the work which the High Courts can handle may undermine the capacity and efficiency of the High Courts and that should therefore be avoided.

(10) Lastly, the time saved by this Court by not entertaining the cases which may be filed before the High Courts can be utilised to dispose of old matters in which parties are crying for relief.”

 

 

2. Tirupati Balaji Developers Pvt. vs State Of Bihar, 2004 5 SCC 1

 

8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Court both are courts of record. The High Court is not a court 'subordinate' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential election or inter-state disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate courts and tribunals; the Supreme Court has not been conferred with any power of superintendence. If the Supreme Court and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother. There are a few provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts. So far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate court of appeal. It is the final interpreter of the law. Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Under Article 141 the law declared by the Supreme Court shall be binding on all courts, including High Courts, within the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India - and that would include High Court as well - shall act in aid of the Supreme Court.

…

30. While quoting the several authorities and references as hereinabove we should not be misunderstood as calling 'the Supreme Court a superior Court and the High Court an inferior court', all that we wish to say is that jurisdictionally, and in the hierarchical system, so far as the exercise of appellate jurisdiction is concerned, undoubtedly the Supreme Court is a superior forum and the High Court an inferior forum in the sense that the later is subjected to jurisdiction, called 'appellate jurisdiction' of the former.

31. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. The lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless.

32. Though, the jurisdiction conferred on the Supreme Court under Article 136 is very wide and no technically can prevent or hinder the effective exercise of such jurisdiction yet as a rule of prudence and self-imposed discipline the superior forum refuses to exercise its jurisdiction in the first instance if the grievance raised is capable of being taken care of by any lower forum competent to do so.

 

 

Recovery of excess salary

 (2015) 4 SCC 334 (State of Punjab v. Rafiq Masih (White Washer)):

“18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.