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