Deemed Extension of Time Bound Stay order if not vacated

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)