Kikar Singh v State of Rajasthan
Supreme Court of India

12  May  1993
Cr.A. No. 437 of 1993. From the Judgment and Order Dt. 12.9.1990 of the Rajasthan High Court in D.B. Cr.A. No. 185 of 1984
The Judgment was delivered by: K. Ramaswamy, J.
1. Special leave granted.
2. The appellant was convicted under s. 302 I.P.C. and sentenced to undergo imprisonment for life for causing the death of Jeet Singh on May 22, 1983 at about 11,00 a.m. in the field of the deceased. The Rajasthan High Court confirmed the conviction in Criminal Appeal No. 105 of 1984.
3. The case of the prosecution in nutshell was that the deceased and the appellant are neighbouring owners of lands. There was an altercation between them due to the appellant throwing soil into the lands of the deceased from 'Dali' (strip of land dividing the two fields of the deceased and the appellant). Thereon the deceased went to the appellant to persuade him not to throw the soil into their field and to have the matter settled amicably through negotiations and if need be by measuring the lands, yet the appellant was annoyed with the conduct of the deceased and his sons PW- 1 and PW-2 and son-in-law PW-3. At the instigation of his son by name Pappu (who was a juvenile offender and was dealt with separately), the appellant inflicted with Kassi (spade, sharp edged cutting instrument) on the head of the deceased and with its impact the deceased fell down. Thereafter the appellant inflected two more injuries. When PW- 1 to 3 raised alarm, the accused ran away. PWs- 1 to 3 went near Jeet Singh and found him dead with bleeding injuries on head, neck and back.PW-1 went and lodge at the police station the report Ex. P-1 narrating the entire prosecution case. At the trial PWs- 1 to 3 were examined as direct witnesses whose evidence was believed by both the courts below as natural witnesses and the appellant was convicted for the offence of murder. We found no infirmity in the assessment of the evidence, though the counsel for the appellant attempted to argue the case in that behalf.
4. However, notice was issued to the State oil the nature of the offence and the State has appeared. We have heard the counsel on both sides. During post-mortem the doctor found the following thee injuries on the dead body
1. Incised wound 11 cm x 2-1/2 cm x 5 cm on the right pariete occipital area. Bone fractured ura matter was seen from the wound.
2. Incised wound 15 cm x 6 cm x 5 cmon the right scapular area bone fractured.
3. Incised wound 13 cm x 10 cm x 12 cm on the right side of neck. All vessels of the right side neck were cut cervical vertebrae 4 and 5 along with the spinal cord was cut through and Larynx and right side of mandible cut.
5. The witnesses have stated that when the appellant caused the first injury on the head, the deceased fell down and thereafter the appellant inflicted the other two injuries while the deceased was lying on the ground. The incised injury on the parieto occipital region was the first injury.
6. The doctor found that by the third injury on the right side of the neck, the vessels on the right side of the neck, were completely cut, cervical vertebra along with spinal cord were cut through larynx and also right side of mandible. According to him, the third injury was sufficient to cause death in the ordinary course of nature.
7. The contention of the learned counsel is that the appellant committed the offence on the spur of moment when quarrel ensued between the appellant and the deceased, when the appellant was prevented to spread the soil in his field. So in heat of passion and on the spur of moment without premeditation the appellant inflicted injuries on the deceased. He had no intention to cause-particular injuries, thou oh later on proved to be fatal. Since he had no intention to cause such injury as is likely to cause the death and there was no premeditation, nor intention to kill, the case would fall under Exception (4) to s. 300 I.P.C. Even otherwise no offence of murder has been made out.
Therefore, it is only culpable homicide not amounting to murder punishable under s. 3(A Part 11 I.P.C. Having given our anxious consideration and the facts and circumstances do indicate that there are no merits in either contentions.
8. Even if we assume that the appellant committed the offence during the course of a verbal quarrel between the appellant and the deceased one cannot escape from the conclusion that the offence is one of murder.
9. S. 299 I.P.C. defines that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Under s.,300 except in the cases hereinafter excepted, culpable homicide is murder........ thirdly if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
10. Exception 4 thereof provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Under s. 302 whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. Whoever commits.
11. Culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, or with fine, or with both. Under second part of s. 304 I.P.C. if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
12. It is, therefore, clear that culpable homicide is murder when the accused causes death by doing an act with the intention of causing death, or causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death. If the accused intentionally causes bodily injury which is found to be sufficient in the ordinary course of nature to cause death if would attract clause thirdly of s. 300 I.P.C. If the accused knows that the act he causes is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury it would attract clause fourthly. It would be murder unless it is brought in any one of the exceptions. In a given case even if the case does not fall in any of the exceptions, still if the ingredients of cls. 1 to 4 of S. 3(X) are not satisfied, then it would be culpable homiest not amounting to murder punishable under s. 304 either cl. 1 or cl. 2. It is, therefore, the duty of the prosecution to prove the offence of murder.
13. The counsel attempted to bring the case within exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender shaving taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track.
14. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to exception 4. True the number of wound is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the exception 4 engrafted to S. 300 is excepted and the offences committed would be one of murder.
15. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatel blows on the deceased, exception 4 is not attracted and commission must be one of murder punishable under s. 302. Equally for attracting exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument of manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under exception 4. In Pandurang Narayan Jawalekar v. State of maharashtra [1979] 1 SCC 132 1978 Indlaw SC 440, the facts proved were that the appellant gave a blow on the head of the deceased old man who was advising him not to quarrel. The injury caused to the brain from one end to the other resulted in fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with very great force.
16. Accordingly it was held that exception 4 does not apply though there was sudden quarrel and that the fight was not premeditated to cause death. It must be shown that the injury caused is not cruel one. The conviction for offence under s. 302 by the High Court reversing the acquittal by trial court was upheld.
17. If the weapon used or the manner of attack by the assailant is out of all proportion to the offence given that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where a person, during the course of sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon there was no ground to hold that his act did not amount to murder.
18. Therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted cruelly with no justification. By his conduct the appellant denied himself of the benefit of exception 4 to s. 300 I.P.C.
19. In Virsa Singh v. State of Punjab AIR 1958 SC 465 1958 Indlaw SC 82, a leading forerunner on the point, this Court held that the prosecution must prove that bodily injury is present. The nature of the injury must be proved.
Thirdly, it must he proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or an intentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the court must further proceed with the enquiry and find that the prosecution has proved that the injury described is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution the offence of murder falls under clause thirdly of S. 300. It matters not that there was no intention to cause death or that there was no intention even to cause death in the ordinary course of nature. Once it is proved that the intention to cause the bodily injury actually found to be present, the rest of the enquiry is purely objective to be deduced by inference. But where no evidence or explanation is given about why the accused thrust a spear into the abdomen of the decease with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did. The question whether there is intention or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the accused intended to inflict the injury in question. It was held in that case that the offence was one of murder falling under clause thirdly of S. 302. In Rajwant Singh v. State of kerala AIR [1996] SC 1874, the bodily injury consisted of tying up the hands and the feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had been preplanned and, therefore, this Court held that the acts satisfied the objective tests of cl. 3 of s. 300 and were held to be sufficient in the ordinary course to cause death. Accordingly it was one punishable under s. 302.
20. It is not necessary that death must be inevitable or in all circumstances the injury inflicted must cause death. If the probability of death is very great the requirement of clause third is satisfied. If there is prob ability in a less degree of death ensuing from the act committed the finding should be of culpable homicide not amounting to murder. The emphasis is sufficiency of injury to cause death. A judge must always try to find whether the bodily injury inflicted was that which the accused intended to inflict. The intention must be gathered from a careful examination of all the facts and circumstances in a given case. The citus at which the injury was inflicted, nature of the injury, weapon used, force with which it was used are all relevant facts.
21. We find from the facts that the appellant inflicted fatal blow, i.e. 3rd injury severing the neck after the deceased had fallen on the ground due to impact of the first injury on practical region. The third injury is proved to be sufficient in the ordinary course of nature to cause death.
22. Even otherwise death is inevitable. When the appellant inflicted two injuries on a fallen man, it must be held that he intended to inflict those two injuries, though the first injury may be assumed to have been inflicted during the course of altercation.
Thus we hold that the offence is one of murder and the appellant was rightly convicted and sentenced to imprisonment for life under s. 302 I.P.C. The appeal is, therefore, dismissed.
Appeal dismissed


S.D.S. Shipping Pvt. Ltd. v Jay Container Services Co. Pvt. Ltd. and others
Supreme Court of India

8  May  2003
C.A. No. 4064 of 2003
The Judgment was delivered by: ARIJIT PASAYAT, J.
Leave granted.
1. 2. Shorn of unnecessary details, the factual background giving rise to the present appeal is as follows:-
2.  Respondent no.1 as plaintiff filed a suit in the ordinary original civil jurisdiction of the Bombay High Court, inter alia, with the following prayers:
"a) That the Defendant No.1 be ordered to pay the Plaintiffs a sum of Rs. 1,61,13,173.24  details of which are given in the enclosure at Annexure 'A' to this plaint and the Defendant No.1 be directed to pay interest @ 21% till the date of actual payment.
a-1 That Defendant No.1 be ordered and decreed to pay a sum of US $ 4140 per month alongwith interest @ 18% per annum from due date till payment/realization with effect from 1st November, 1997 towards lease rent until all the 92 containers are returned.
In the alternative and without prejudice:"
3. Appellant is defendant no.1 in the suit.
4. According to the plaintiff it is a private limited company engaged amongst others in the business of supply of containers for the ships to carry goods from one place to another. It supplied containers to the present appellant from time to time. There was lease agreement entered into between the parties for use of leased containers. The agreement expired on 30th March, 1996; but was further extended by one month. Even during the extended period and thereafter the containers were not returned by the defendant. no.1. It entered into correspondence with defendant no.1 calling up it to return the containers and to pay the lease charges. Cheques issued by the said defendant bounced on presentation. The defendant no.1 by letter dated 26th April, 1996 addressed to the attorneys of the plaintiff informed that efforts were on to look for a suitable vessel to bring those containers from Plot Louis to Bombay. But the containers were not returned. Prior to the said letter dated 26th April, 1996 by two communications dated 10th January, 1996, it had been communicated that out of the total lot of 92, 35 containers could not be returned. It was stated that those containers were lost leaving a balance of 57 containers. The containers were given on lease basis and since there was no dispute about non-return, demands were made for payment. There was also no dispute regarding lease rental. Ultimately, when the plaintiff found that the containers were not returned and also the lease charges were not paid, the suit No. 4794 of 1997 was filed seeking a sum of Rs. 1,61,13,173.14. This included the claim for non-return of the containers and the claim for outstanding rental.
2. After the suit was filed, plaintiff took out a motion, being Notice of Motion No. 378 of 1998 for Receiver and injunction for the containers which were not returned. The learned Single Judge by order dated 11th August, 1999, took the view that there was no case for appointing a Receiver for the properties by way of security for the amounts which may be due. He also held that no irreparable loss will be caused if interim relief was not granted. While rejecting this motion, however, liberty was granted to the plaintiff to take out the appropriate proceedings for a direction to defendant no.1 to deposit the arrears of rent, if any, due. Order of the learned Single Judge was upheld by the Division Bench. While disposing of the appeal, however, it was observed by it that the view expressed by learned Single Judge were of prima facie nature and were intended to dispose of the motion. It was further observed that if the plaintiff moves an application for attachment before judgment, observations made in the order of learned Single Judge as well as the Division Bench will not prejudice the application.
5. Thereafter another notice of motion was taken where it was prayed that defendant no.1 be directed to deposit the amount of Rs. 81,77,632.50, being the amount towards arrears of rental and also for a direction that per month an amount of Rs. 1,78,020/- be deposited from time to time. Learned Single Judge took the view that the power of the Court under Order 12 Rule 6 of Civil Procedure Code, 1908 dealing with decree on admission could not be invoked in the matter. It was held that S. 151 of the Code was not available to the plaintiff to invoke the inherent jurisdiction on the facts of the case.
6. The orders were challenged by the plaintiff before the Division Bench which by the impugned order directed defendant no.1 to deposit an amount of Rs. 81,77,632.50  within 12 weeks period. It was further directed that the amount was to be deposited in a nationalised bank for a period of 37 months and the deposit was to be renewed at a time by 13 months until the suit was decided. This order is under challenge.
7. Mr. R.F. Nariman, learned senior counsel for the appellants submitted that the Division Bench manifestly erred in directing deposit by overlooking the factual and legal background involved. In a commercial suit where there was dispute regarding the liability such directions could not have been given. Even in respect of a summary suit under Order 37 there was no scope for giving the type of direction as done. The Division Bench while implicitly upholding the view of learned Single Judge that Order 12 Rule 6 was not applicable could not have applied the logic of Order 39 Rule 10 of the Code which operates in an entirely different background. It was pointed out that the Division Bench committed factual error in observing that there was no clear denial to the claim of the plaintiff and/ or that its stand was an evasive one and at times in the nature of an afterthought. Having ruled out application of Order 12 Rule 6, it was not open to the Division Bench to bring in operation of Rule 39 Rule 10, of the Code with the help of S. 151. It was also submitted that the claim as made clearly exaggerated, without any foundation or basis and neither in law nor equity plaintiff was entitled to any relief.
8. It was, however, accepted that at the most the plaintiff may be entitled to the arrears of rentals and nothing beyond that. The question of making any payment for the rentals after expiry of the agreement period is also not contemplated in law. There was no termination of the agreement and on the contrary it lost its currency after the extended period of one month beyond the initially stipulated last date.
9. Responding to the above submissions, Mr. K.K. Venugopal, learned senior counsel for the plaintiff (respondent no.1) submitted that here is a case where the party has taken advantage of its own wrong doings. Undisputedly it had taken the containers on lease. Cl. 6 of the agreement clearly stipulates that rental charges were to be paid till the containers are returned. This has admittedly not been done. There are several letters where there was express acceptance of the liability. Finally it was submitted that this is not a case where this Court should exercise powers u/art. 136 of the Constitution of India, 1950.
10. By way of reply to the submissions made by Mr. Venugopal, Mr. Nariman submitted that the scope and ambit of Art. 136 is too well known and, therefore, where substantial question of law relating to jurisdiction of a commercial court is raised, the Court has to see whether the impugned judgment meets the requirement of law. According to him, it is too futile to contend that Art. 136 will not be exercised in a case of this nature where the Division Bench of the High Court clearly acted contrary to well-settled principle of law.
11. Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the order impugned is an interim order. The direction is for deposit and no liberty has been granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were leased out by the plaintiff to the defendant no.1 according to whom some of the containers were not traceable and were lost. We may add here that subsequent to the filing of the suit, it was contended that all the 92 vessels were lost.
12. In view of the factual scenario unfolded above, it does not appear to be a case where interference u/art. 136 of the Constitution is called for. That power is exercised only on showing substantial injustice, and not for merely technical flaws in a proceeding. . The position was illuminatingly stated in Rashpal Malhotra vs. Mrs. Satya Rajput and Anr. 1987 Indlaw SC 28884 ). This Court in Heavy Engineering Corporation Ltd., Ranchi vs. K. Singh and Co., Ranchi 1977 Indlaw SC 375 ) expressed the opinion that although the powers of this Court were wide under Article 136, it could not be urged that because leave had been granted the court must always in every case deal with the merits, even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana vs. Deputy Collector of Consolidation 1978 Indlaw SC 162 ) it was held that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal, but the final court of the nation. Therefore, even if legal flaws might be electronically detected, it may not interfere save manifest injustice or substantial question of public importance.
13. In Taherakhatoon (D) by Lrs. vs. Salambin Mohammad 1999 Indlaw SC 983 ), it was noted that even in cases where leave has been granted, the Court might after declaring the correct legal position decline to interfere saying that it would not exercise discretion to decide the case on merits and that it would decide on the basis of the equitable considerations in the facts and circumstances of the case and mould the final order.
14. Even if it is accepted for the sake of arguments that there was some faulty conclusion in law, the impugned order being an interim one, we do not consider this to be fit case for interference in exercise of jurisdiction u/art. 136. But, taking note of the peculiar facts, ends of justice would be best served if the appellant is directed to deposit Rupees Fifty lacs instead of Rupees Eighty two lacks by end of June, 2003.
15. The appeal is accordingly disposed of leaving the parties to bear their respective costs.
Appeal disposed of.


High Court of Judicature at Bombay through Registrar and another v Brij Mohan Gupta (Dead) through LRs. and another
Supreme Court of India

23 January 2003
Appeal (Civil) 137 of 1999
The Order of the Court was as follows :
1.  The respondent herein Brij Mohan Gupta was born on 2nd July, 1939. He was directly appointed from the Bar as a Judge of City Civil and Sessions Court, Bombay (Maharashtra Higher Judicial Service). He assumed charge on 4th November, 1988. In normal course, the respondent would have completed 10 years of service on 4th November, 1998. He would have attained the age of 58 years on 2nd July, 1997 and the age of 60 years on 2nd July. 1999.
2.  The High Court of Bombay, in view of the decision of this Court in All India Judges' Association and Ors. v. Union of India and Others, [1993] 4 SCC 288 1993 Indlaw SC 1712 (hereinafter referred to as "Judges Case-II"), appointed a Committee to review the case of the respondent for giving him the benefit of continuity in service till the age of 60 years. The Committee made an adverse report against the respondent and recommended that he may be made to retire on attaining the age of 58 years. The High Court, in view of the recommendation of the Committee, issued an order on 30th July, 1997, retiring the respondent from service w.e.f. 31st July, 1997. Aggrieved, the respondent filed a petition u/art. 226 of the Constitution before the Bombay High Court.
3.  The case of the respondent before the High Court was that under Rule 10(3) (c) of the Maharashtra Civil Services (Pension) Rules, 1982, he was entitled to continue till completion of 10 years' qualifying service which was necessary to entitle him to get the benefit of Rule 53 of the Rules. The High Court accepted the said argument and held that the respondent would be entitled to continue in service until 4th November, 1998 on which date he would have completed 10 years in service and as a result the respondent would be liable to retire from service when he actually would complete 59 years, 4 months and 2 days. In that view of the matter, the writ petition was allowed and the impugned order stood modified.
4.  It is against the said judgment of the High Court; the appellants are before us in appeal.Mr. U. U. Lalit, learned counsel appearing for the appellants contends that in terms of Judges Case-I [1992] 1 SCC 119 and Judges Case-II [1993] 4 SCC 288. Rule 10(3)(c) stood subrogated therein and the High Court was justified in taking a decision on completion of the age of 58 years of the respondent to find out whether he would be allowed to continue till the age of 58 years. We find merit in his contention.
5.  In Judges Case-I, a direction was issued by this Court to all the States and the Union Territories, including the State of Maharashtra, to fix the age of retirement at 60 years w.e.f. 31st December, 1992 in respect of members of the Judicial Service. In Judges Case-II again this Court held that where there is no Rule providing for the age of superannuation at the age of 60 years, a Committee of the High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in respective Service Rules applicable to Judicial Officers; that those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement; and that the exercise should be undertaken before the attainment of the age of 58 years even in case where earlier the age of superannuation was less than 58 years.
6.  In terms of these directions, the Chief Justices of the respective High Courts were required to set up appropriate Committees of five Hon'ble Judges to look into the service records of the concerned Judicial Officer, so as to consider as to whether he should be allowed to continue up to the age of 60 years. The said procedure was followed in the instant case.
7.  The five-Judges Committee looked into the records of the respondent and opined:
"The Committee has considered the annual Confidential Reports of Shri Gupta for the last 5 years i.e. since 1992. He lacks integrity. He does not enjoy good reputation. His behavior with the members of Bar and public is unsatisfactory. He is rated as a poor Judge. The S.I.D. record shows that in File No. SID/BY/34/93, the Disciplinary Committee has, on 29th March issued a warning informing him that he should be more careful while passing order in future.Considering the material placed before the Committee and the overall performance of Shri Gupta, the Committee is of the opinion that he is not suitable to be continued, his performance is not up to the mark and therefore, he does not deserve grant of benefit of increase of retirement age of 60 years."
8.  In view of the said report, the respondent was made to retire on attaining the age of 58 years i.e. 30.7.1997.Rule 10(3)(c) of the Maharashtra Civil Service (Pension) Rule, 1982 is applicable only to the direct appointees from the Bar. By reason thereof, the benefit of pension has been extended to them so as to enable them to complete the minimum qualifying service of ten years subject to the outer limit of 60 years of age. The normal age of superannuation of such an officer would either be completion of ten years of service or 55 years whichever is earlier.
9. In that view of the matter, the respondent would have reached the age of superannuation on attaining the age of 55 years. He, however, in view of the benefit conferred in terms of the Judges' Case, as referred to hereinbefore, was to retire at the age of 60 years but such benefit was subject to the conditions laid down therein. Only in the event the age of superannuation of the judicial officers is 60 years under the Service Rules, the question of review of his performance on attaining the age of 58 years would not arise; but when under the Service Rules applicable to the judicial officers the age of superannuation is 58 years or below, he would be entitled to the benefit of the judgment, in which event the limitations of applicability thereof would also squarely apply.
10.  In our view, the exercise of setting up a Committee by the Chief Justice, the recommendation made by the Committee and also finally the administrative order passed by the High Court, were strictly in terms of the Judges Case-I and Judges Case-II. In fact, by virtue of Judges Case-I and Judges Case-II, Rule 10(3) (c) stood subrogated. We are, therefore, of the view that the judgment under challenge is not in conformity with the aforesaid decisions and is liable to be set aside.
11.  However, in the peculiar facts and circumstances of the case and particularly in view of the fact that the original respondent has expired on 17.3.2001, we direct that he may be held to have retired on completion of 10 years of service and in that view of the matter, all retrial benefits would be payable in accordance with law. We have taken this view as in the event, the respondent was allowed to complete ten years of his service, he would have retired at the age of 58 years six months only.
in that view of the matter, we are not inclined to interfere in the matter. The appeal is disposed of with the aforementioned observations and directions. C.A.No. 138/1999 Learned counsel appearing for the appellant states that the appeal is rendered in fructuous. It is dismissed as such.
Appeal disposed of.


Panna Lal Ghosh and Others v Land Acquisition Collector and Others
Supreme Court of India

12 December 2003
Appeal (civil) 9734 of 2003 [Arising out of SLP(C) No. 15758 of 2000]
The Judgment was delivered by : Rajendra Babu, J.
Leave granted.
1. The case relates to acquisition of land measuring 3.37 acres in Mouja Pabiacheura in Kailashahar, State of Tripura. The notification under Section 4(1) of the Land Acquisition Act, 1894 [hereinafter, 'the Act'] was issued on 24th December 1968 and on 13th October, 1969, declaration under Section 6 of the Act was published. The Land Acquisition Collector made his award in October 1974 awarding Rs.12,000/- per acre for 'nal land' and Rs.9,000/- per acre for 'chara land'. On 21.10.1974, the appellants filed an application for reference under Section 18 of the Act for enhancement of compensation. On reference, the learned L.A. Judge passed an award enhancing compensation, allowing Rs.36,000/- per acre and also granted 15% solatium, and interest under Section 23(2) of the Act in 1985.
2.  On appeal to the High Court, the claim for enhancement was dismissed. The High Court also denied the appellants benefits under Section 23(2) of the Act by relying on the decision of this Court in K.S. Paripoornan vs. State of Kerala, AIR 1995 SC 1012 1994 Indlaw SC 1227.
Before this Court, the main issues are as follows:
(1) Was the High Court justified in not awarding enhanced compensation?
(2) Are the appellants entitled to solatium and interest @ 30% under Section 23(2) of the Act?
3.  Compensation payable on a piece of land acquired under the Act is determined by taking into account the market value of the land so acquired. The most reliable way to determine the market value is to rely on the instances of sale of portions of the same land as has been acquired or adjacent lands made shortly before or the after the Section 4 notification .
4.  Accordingly, the appellants had produced before the High Court a certified copy of an award passed by the learned L.A. Judge in another acquisition proceedings. In this case, the land was 150 ft. away from the lands involved in the present proceedings. In those proceedings, the learned L.A. Judge had awarded Rs.1 lakh per acre as compensation. This was sought to be relied on by the appellants. The High Court chose not to rely on this document as no evidence was led to show that both lands are similar in nature having similar potentiality. While determining the market value of land, it must be with reference to a piece of land which is comparable to the present lands being acquired. It must be similar in potentiality and nature. The document which the appellants seek to rely on relates to land which was acquired for the purpose of Assam- Agartala Road. It was 3 feet higher than the acquired land. Further, the two lands were not proved to be comparable in nature and potentiality. Therefore, the High Court is right in not relying on the said document and disallowing the claim for enhancement for compensation.
5.  The second issue relates to the payment of solatium @ 30% under Section 23(2) of the Act. Solatium is 'money comfort' quantified by the statute and given as a conciliatory measure for the compulsory acquisition of land of the citizen, by a welfare state such as India ". Thus the statutory amount of solatium is intended to compensate the owner for his disinclination to part with his property.
6.  The main aspect that arises for consideration is the issue of the rate of solatium. By an amendment in 1984, the rate was increased to 30% from the original 15% by virtue of Section 30(2) of the Amending Act. This increase was given a limited retrospectivity, in the sense that, the Amending Act, under Section 30(2) provided that the increased solatium is applicable to those awards passed by the Collector or the Court between 30.4.1982 and 29.9.1984. Can it be said that the present case would be entitled to this additional benefit?
7.  The award was made by the L.A. Collector way before the said period i.e. in 1974. However, the reference Court passed its award after the said period, i.e. in 1985. Therefore, the issue is whether the amendment would apply to a case pending during the period of 2 years from 30.4.1982 to 29.9.1984.
8.  This precise issue has come up for consideration a number of times before this Court. In Union of India v. Raghubir Singh, (1989) 2 SCC 754 1989 Indlaw SC 914, it was held that the benefit of enhanced solatium would apply only in cases where the award by the Collector or Court is made between 30.4.1982 and 24.9.1984 or appeals against such awards decided by the High Courts or this Court, whether rendered before 24.9.1984 or after that date. This Court found that the language of the Section ruled out the applicability of the benefit to all pending proceedings.
9.  In Union of India v. Filip Tiago De Gama, AIR 1990 SC 981 1989 Indlaw SC 335, the issue was whether the amendment would apply to an award made subsequent to 24.9.1984 even though the acquisition proceedings had commenced prior to the date. This Court looked at the intention behind giving retrospective effect to the amending Section. If the literal interpretation is taken, it was held, it will result in an anomaly. In order to avoid it, regard must be had to the purpose of Section 30(2). Consequently, this Court awarded higher solatium even though the Reference Court made the award in 1985.
10.  Again in K.S. Paripoornan vs. State of Kerala, AIR 1995 SC 1012 1994 Indlaw SC 1227.
case [supra], this Court widened the restricted interpretation given in Union of India v. Raghubir Singh, (1989) 2 SCC 754 1989 Indlaw SC 914 case. It held that the enhanced solatium would apply even to a case pending at the time the Act came into force.
11.  Following this train of thought, the benefit of enhanced solatium would extend to the present case. During the period between 30.4.1982 and 29.9.1984, the reference was pending in the Reference Court. The court's award was passed in 1985. Following the above interpretation, the appellants are thus entitled to enhanced solatium @ 30% and interest under Section 23(2) of the Act.
12.  The High Court in considering the case under Section 23(1-A) of the Act has committed an error. The appellants are entitled to solatium under Section 23(2) of the Act and, therefore, the reference by the High Court to Section 23(1-A) is irrelevant in the present case.
13.  The learned counsel for respondents has contended that solatium is not applicable because the West Bengal Land Development and Planning Act, 1948, under which this present area falls, does not contemplate it. The provision of solatium is mandatory and cannot be done away with. It has been held in a number of cases that the deprivation of solatium by the West Bengal Land Development and Planning Act is violative of Article 14 and Section 8(2) of the Act is held to be invalid. (See : Monoranjan Routh v. State of W.B., AIR 1972 Cal 487 1972 Indlaw CAL 140 and Ramendranath v. State of W.B., AIR 1975 Cal 325 1975 Indlaw CAL 211). Therefore, the contention that Section 8(2) of the Act excludes compensation by way of solatium does not hold good.
14.  In the light of the above, the compensation @ 36,000/- per acre as awarded by the L.A. Judge is upheld. The solatium is to be paid @ 30% under Section 23(2) of the Act and an interest @ 9% per annum is also payable under Section 28 of the Act. The award made by the Reference Court as affirmed by the High Court shall stand modified accordingly and the appeal is allowed to that extent. No orders as to costs.
Appeals Allowed


N.K. Prasada v Government Of India And Ors.
Supreme Court of India

12 April 2004
Appeal (civil) 3137 of 1999
The Judgment was delivered by: S. B. Sinha, J.
1.  The appellant herein was respondent No. 8 in one of the public interest litigations being No. 6240 of 1997 which was disposed of along with another public interest litigation being No. 5717 of 1997 and Contempt Case No. 779 of 1997.
2.  The appellant herein has not questioned the correctness or otherwise of the impugned judgment dated 6th July, 1998 passed by a Division Bench of the Andhra Pradesh High Court in the aforementioned matters but only is concerned with certain observations made therein as also imposition of a sum of Rs. 20,000/- by way of costs. These two public interest litigations were filed successively by one B. Kistaiah, said to be a former Member of Legislative Assembly and the Writ Petition No. 6240 of 1997 by Digumarthi Premchand, said to be a journalist. In the said purported public interest litigations alleged malfunctioning of the Commissioner of Central Excise resulting in loss of several crores of rupees as also purported dismantling of the Special Investigating Team headed by the appellant herein were in question.
3.  The writ petitioners contended that the said Special Investigation Team was dismantled by the Commissioner-I Central Excise & Customs, Hyderabad Commissioner ate only with a view to help the dishonest traders and to prevent the cases relating to evasion of excise duty. The appellant was not initially a party therein but despite the same an order of transfer passed against him and others dated 10.3.1997 bearing Establishment Order (G.O.) No. 43/97 was questioned in the said writ petition. The cause of action for filing writ petition No. 5717 of 1997 was also said to be issuance of the said order of transfer dated 10.3.1997. A Division Bench of the High Court by an order dated 21.03.1997 directed the appellant (although thence he was not a party) not to hand over any record in any pending case which was or is under his investigation to M.V.S. Chowdary till 26.3.1997.
4. The respondents were also purported to be relying on or on the basis of the additional affidavit directed by the High Court to file their counter-affidavits and produce the records relating to setting up of the Special Investigation Team and its disbanding. The writ petitioner, however, instructed his counsel to withdraw the writ petition stating:
"My conscience, however, does not permit me to proceed with the said writ petition. I am also uncertain of the effect of the matter will have and I am constrained, for my personal reasons, and for my personal safety to seek the permission of the Hon'ble Court to withdraw the writ petition."
5.  When the said matter was pending, another writ petition marked as W.P. No. 6240 of 1997 came to be filed by Digumarthi Premchand wherein the averments made, except for one paragraph were verbatim the same of those contained in writ petition bearing No. 5717 of 1997. In the said writ petition also the appellant herein was impleaded as a party and the main attack therein was directed against the said proceedings dated 10.03.1997 transferring the appellant.
6.  It appears that the Director General, NACEN and Chief Commissioner, Hyderabad by an order dated 08.05.1997 directed that the appellant should be taken back on the rolls of Hyderabad Commissioner ate and furthermore should be handed over the cases for investigation. A further direction was made to examine how his period of absence can be regularised. The writ petitioner filed an application dated 22.5.1997 for implementation of the said proceedings which was marked as WPMP (SR) No. 55758 of 1997. Surprisingly enough, they said application was purported to have been directed to be placed for House Motion before a Division Bench purported to be under the orders of the Chief Justice of the Andhra Pradesh High Court which admittedly was found to be wrong.
7. The appellant herein filed two applications on the same day one, to implead him as one of the respondents and the other to give effect to the said proceedings dated 8.5.1997 issued by the Chief Commissioner, Hyderabad. Despite the fact that the Registry of the High Court was not supposed to receive the said applications without the order of the Hon'ble Chief Justice, the same was done on a wrong premise that a direction in that behalf had been issued by the Chief Justice. Interestingly, the writ petitioner informed the Registrar (Judicial) that he would not be insisting for House Motion as his advocate would not be available but keeping in view the purported order passed by the Chief Justice, a Bench was constituted in relation where to admittedly no direction had been issued by the Chief Justice. It also stands admitted that even no direction had been issued to number the said applications, whence the application filed by the appellants were placed before the Bench.
8.  The Registry submitted several reports before the Court, on having been asked to do so, which reveal as to how a fraud was practised upon the court presumably in collusion with some officers of the Registry. A contempt proceeding was initiated against Digumarthi Premchand relying or on the basis of the said reports but as the writ petitioner had been evading service of notice, not only non-bailable warrant was issued in absence of any correct address of writ petitioner having been furnished; the CBI was also asked to cause to make a detailed enquiry/investigation into the following issues:
"(a) whether there is any person by name Digumarthi Premchand, Journalist, r/o. Narayanaguda and if such a person is available, cause his production before this Court on or before 19-9-1997, (b) if there is no such person by name Digumarthi Premchand, the sixth respondent shall investigate and find out as to under what circumstances this writ petition came into existence and the person or persons responsible for filing the same."
9.  Upon making an enquiry into the matter, a report was filed by the CBI on 19.9.1997 before the division bench of the High Court. The appellant herein thereafter appeared before the Court on 17.10.1997. The CBI submitted a final report stating that a chargesheet under Section 120-B read with Sections 199, 200, 201, 416, 465 and 471 of Indian Penal Code and Ss. 109 thereof had been filed by it against the writ petitioner, the appellant herein and one M. Kali Prasada who is his close relative. The material portions of the said report read as under:
"On 17-3-1997 Sri N. K. Prasada met one Sri B. Kistaiah an Ex. MLA who had got close association with Sri B. P. Agarwal Textile Mill owner of Shadnagar with whom they said Sri N. K. Prasada also had acquaintance. On the same day Sri Kistaiah filed a WP No.5717 of 1997 alleging irregularities in Customs and Central Excise, Hyderabad and also filed several documents along with writ petition which were supplied by N. K. Prasada. Not contended with filing of the above writ petition Sri N. K. Prasada A2 also got filed another WP No.6240 of 1997 through Sri S. Ramachandra Rao, senior Advocate and Seshagiri Rao, Advocate. Since, the subject-matter of both the writ petitions are one and the same, the Hon'ble High Court posted the matter for hearing before Hon'ble Justice V. Bhaskar Rao and Hon'ble Justice Sri B. Sudarshan Reddy. Sri Padmanabham, clerk of Sri Ramachander Rao informed that on 22-5-1997 Sri N.K. Prasada came to the office of Sri Ramachander Rao and asked him for the house motion petition of D. Premchand and Sri Padmanabham showed him the bundle from which Sri N. K. Prasada took out the petition informing him that he is taking the house motion petition of D. Premchand. Sri N. K. Prasada, (A2) has obtained this writ petition back from the Registrar of the High Court since some objections were raised by the Registrar and Sri N. K. Prasada also signed in return register maintained by the Registrar office in token of receipt of the petition back.
The register as well as specimen signatures of Sri N. K. Prasada have been referred to GEQD who opined that the signatures on the register pertains to Sri N. K. Prasada. The investigation disclosed that the origin of all Phonogram was from public telephone booth bearing No. 243 980, located at Basheerbagh and other PCO telephone No.332917 located at Erramanzil Colony. Investigation disclosed that on the day of filing of WP No.6240 of 1997 i.e., 26-3-1997 Sri Kali Prasada was taken to the office of Sri S. Ramachander Rao by Sri N.K. Pramda and Sri B. P. Agarwal. Investigation also disclosed that on 26-3-1997, Sri D. Premchand was present at Srikakulam and he has not come to Hyderabad nor he signed the affidavit enclose with the WP No.6240 of 1997. The GEQD has opined that the signature on WP No.6240 of 1997 was not that of Sri D. Premchand. But Sri D. Premchand with a fraudulent and dishonest intention filed an affidavit before the Hon'ble High Court on 7-11-1997 stating that he himself has signed the affidavit enclosed with the WP No.6240 of 1997 and that he himself filed the petition. Sri S. Ramachander Rao, Sr. Advocate and Sri Seshagiri Rao, Advocate who filed the WP No.6240 of 1997 have also stated in their statements recorded u/s. 164 Cr.P.C before the II MM Hyderabad that the person Sri D. Premchand who had surrendered before Hon'ble High Court on 19-9-1997 was not the person who came along with Sri N. K. Prasada and who signed the WP No.6240 of 1997 on 26-3-1997.
The document filed along with WP No.5717 of 1997 of Sri B. Kistaiah, Ex.MLA, Shadnagar were supplied by Sri N. K. Prasada has stated by Sri K. R. Prabhakar Rao, Advocate for Sri B. Kistaiah, Sri B. Kistaiah also stated before the Hon'ble High Court that Sri N. K. Prasada requested him not to withdraw the petition. By the aforesaid acts all the accused entered into criminal conspiracy and fraudulently filed WP No.6240 of 1997 and in which process A3 impersonated A1 under the active connivance of A2 and thereby played fraud on the higher judiciary. A1 has falsely stated through an affidavit before the Hon'ble High Court of A.P. on 7-11-1997 that he himself filed WP No.6240 of 1997.
Thus, all the three accused i.e., A1 to A3 committed offences punishable under Section 120-B read with 199, 200, 201, 419, 465 and 471 IPC and S. 109 IPC.
It is therefore prayed that the Hon'ble Court may take cognizance of the case against the accused and they may be dealt with according to law. Hence the charge-sheet."
10.  The CBI was also directed by the High Court by an order dated 19.9.1997 to make investigation into the question as to:
"(1) whether the petitioner, himself, got the information required for the purpose of filing this writ petition and if so, who are the persons from whom the petitioner had gathered the information. It is also just and necessary to find out as to (2) how and on what basis the averments in the affidavit filed in support of the writ petition are made and the persons responsible for making or engineering the averments made in the affidavit."
11.  A direction was also issued to find out as to under what circumstances the writ petitioner proposed to withdraw the writ petition as also who were the person's redsponsible for getting the letter of withdrawal filed by the writ petitioner. The CBI in its report inter alia opined that the appellant herein was the person working behind the scene. Interestingly, during the said investigation the appellant could not be traced out. The aforementioned B. Kistaiah (writ petitioner in W.P. No.6240 of 1997) made a solemn statement before the High Court wherein also he named the appellant herein as a person who was responsible for getting the writ petition filed through the advocate although he did not know him personally. He further alleged that the requisite documents for filing the writ petition have been handed over to the learned Advocate by the appellant.
12. The High Court upon analysis of the pleadings and other materials placed before it noticed:
"On analysis of the pleadings before us and various reports filed by the CBI and the sworn statement of the petitioner in WP No.5717 of 1997 would lead to an irresistible conclusion that both these writ petitions are engineered and brought into existence by the 8th respondent herein with an oblique motive of avoiding an order of simple transfer dated 8-5-1997. It is the 8th respondent who has acted from behind the scene and had set up the petitioner to file the writ petition making reckless and unfounded allegations against the respondents. All this has been done only to avoid an order of simple transfer. To what extent the 8th respondent can stoop down is amply demonstrated from the contents of his own affidavit filed into this Court. In one of his counter-affidavits to the report of the CBI dated 17-10-1997 the 8th respondent inter alia states that "on the day Sri B. P. Agarwal introduced me to the advocate but I had met Sri S. Ramachandra Rao later on my own to seek advice whether I should file in CAT or in High Court. As per his directions, I had given him relevant papers which he said he would examine and advise me accordingly.
However, without my knowledge or authorisation he used the documents to file a Public Interest Litigation. I came to know much later that the Hon'ble High Court has issued certain directions on the PIL filed by B. Kistaiah, At no point of time did I influence or induce anyone to file a petition on my behalf."
It is further stated that "the role of Sri S. Ramachander Rao as a senior Advocate looks very dubious in this context. This is apart from misusing the documents given by me to him in good faith for filing my own petition. This is a clear case of breach of client's confidentiality and interest."
It is now clear that it is the 8th respondent who made available the entire material filed into Court as material papers in these writ petitions. Obviously, the writ petition is drafted on the basis of the material supplied by the 8th respondent. It would be totally altogether a different matter as to whether the affidavit is signed by the petitioner or by somebody else at the instance of Respondent No.8. But the feet remains that material has been admittedly made available by the 8th respondent, undoubtedly he is the king pin in the whole drama and operating from behind the scene."
13.  Before the High Court Shri E. Seshagiri Rao, advocate who had filed the writ petition affirmed an affidavit wherefrom it transpired that the writ petition had been filed from the Office of Shri S. Ramchander Rao, a senior advocate purported to be on the instructions of one Shri B. P. Agarwal, the appellant herein and some other persons.
14.  The High Court noticed gross abuse of the process of the Court in the manner of filing the aforementioned two writ petitions said to be in the nature of public interest litigations. The High Court also went into the merit of the matter and arrived at a finding that the writ petitions were filed at the instance of the appellant herein. The High Court while finding the said writ petitions to be without any merit opined that no relief can be granted to the writ petitioner. The High Court also expressed its unhappiness over the role of the lawyers. The High Court although noticed that the writ petitioner in writ petition No. 5717 of 1997 appeared in person and wanted to withdraw the writ petition but did not absolve him of his responsibility in the matter in filing the writ petition at the instance of the appellant herein. However, it took a lenient view and dismissed the writ petition without awarding any cost against him. The High Court, however, administered severe warning to him to be careful in future and not to play any game with judicial process.
15.  So far as writ petition No. 6240 of 1997 is concerned, the High Court held:
"So far as WP No.6240 of 1997 is concerned, we have already observed that the petitioner, as well as the 8th respondent are guilty of abuse of the judicial process in the name of public interest litigation. They have put the device of public interest litigation to naked abuse. The weapon invented by the Apex Court with a noble cause intended to serve the deprived sections of the Society pressed into operation for destructive purpose. The streams of justice are polluted by their conduct. We, under those circumstances, consider it appropriate to dismiss the writ petition-Writ Petition No.6240 of 1997 with exemplary costs quantified at Rs.25,000/-(Rupees twenty five thousand only); out of which a sum of Rs.5,000.00 (Rupees five thousand only) shall be paid by the petitioner, Digumarthi Premchand and the remaining sum of Rs.20,000/- (Rupees twenty thousand only) shall be paid by the respondent No. 8, N. K. Prasada. The amount shall be deposited by the petitioner and the 8th respondent with A.P. State Legal Services Authority."
16.  In the contempt proceedings the writ petitioner was found guilty and punishment till the rising of the court was awarded to the writ petitioner. The High Court, however, keeping in view the pendency of the criminal case observed:
"However, we would like to make very clear that we have not expressed any opinion whatsoever with regard to the merits of the prosecution and the charge-sheet filed by the CBI against the petitioner as well as 8th respondent and one Kali Prasada. The trial Court shall proceed with the trial uninfluenced by any of the observations made by us in this order. We have not expressed any opinion about any of the aspects and merits of the allegations levelled against the petitioner and the 8th respondent. The observations, if any, made by this Court while referring to the reports of the CBI and the charge-sheet are confined for the purpose of disposal of this writ petitions and the contempt case. The trial Court shall dispose of the criminal case uninfluenced by any observation whatsoever made in this case."
17.  Contentions of Mr. Amarendra Sharan, learned senior counsel appearing on behalf of the appellant are two-fold. Firstly he drew our attention to a First Information Report purported to have been lodged by him against one T.N. Rao, Dy. S.P. CBI Hyderabad and urged that as the said officer had himself been facing a criminal charge of asking for bribe, his report filed before the High Court should not have been relied upon. The learned counsel would secondly urge that although the appellant was impleaded as a party, no opportunity of hearing having been granted to him the impugned judgment cannot be sustained.
18.  Mr. Anoop G. Choudhary, learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that the High Court itself could have been moved for expunction of the remarks by the appellant herein. It was pointed out that the appellant took part in the CBI enquiry, filed an application for regularisation of leave and keeping in view the report submitted by the Central Bureau of Investigation, his involvement in getting the writ petition filed is apparent on the face of the record.
19.  The writ petitioner who had been arrayed as respondent No. 8 in the Special Leave application has filed an affidavit. He in his affidavit does not deny or dispute the findings of the High Court. He does not say that the writ petition was not filed at the instance of the appellant herein. It is not in dispute that although the appellant was not a party in the writ petition the order of transfer passed against him dated 10.3.1997 was the subject matter thereof and an interim order had been passed by the Division Bench of the High Court. The fact that he derived benefit of the said interim order is not denied or disputed. The fact that he filed two applications, one for imp leading himself as a party in the pending writ proceeding and another for an interim order purported to be for implementing the order of the Chief Commissioner dated 08.05.1997 also stands admitted.
20.  We may recall that the original writ petitioner also filed a similar application. The High Court arrived at its conclusion not only on the basis of the report of the Central Bureau of Investigation which, inter alia, contains the statements of the clerk of Shri S. Ramchandra Rao, Advocate and his involvement in filing the application and taking the same back from the Registry which is borne out of the return register maintained by the Registry but also the detailed reports submitted by the Registrar (Judicial) before the High Court from time to time as also other affidavits, sworn statements and other materials brought on record. As the finding of the High Court is to the effect that the appellant herein was the king pin of the entire episode and had engineered the entire game with a view to getting his order of transfer stayed is prima facie in nature, we do not find any reason to interfere therewith.
21.  The writ petition and the contempt proceedings pending before the High Court were disposed of on the basis of the materials on record. The materials not only included affidavits of the parties as also that of the appellant but also the sworn statements of the writ petitioner and the Advocate appearing for the writ petitioner. In view of the fact that even the learned advocate appearing on behalf of the writ petitioner categorically stated that at the time of drawing of the writ petition the appellant was present, no fault with the findings of the High Court can be found out if reliance had been placed thereupon. The appellant had intervened in the writ applications as far back as on 22.5.1997. He, it will bear repetition to state, filed an application for grant of an interim relief. The same was pending and, thus, there cannot be any doubt whatsoever, having regard to the fact that the Central Bureau of Investigation was making enquiry; the appellant herein must be held to have been aware thereabout.
22. His two applications were also pending and presumably pressed (as there is nothing on record to show that at any point of time, he intended to withdraw the same), and thus a presumption can be drawn to the effect that he/his advocate had been keeping a watch over the entire proceeding. Despite the same at no point of time the appellant wanted to cross-examine any witness. He never brought the fact to the notice of the court that a criminal case had also been filed against the Dy. S.P. of the C.B.I. allegedly for taking bribe. He allowed the proceedings before the High Court to go on. He sat on the fence. He, as has been noticed by the High Court, even could not be traced out for some time. Furthermore, he appeared to be on leave during the following period:
"1. 83 days EL from 3-4-1997 to 24-6-1997.
2. 138 days EL from 26-6-1997 to 10-11-1997.
3. 15 days EL from 11-11-1997 to 25-11-1997.
4. 115 days Half-pay leave from 26-11-1997 to 29-4-1998.
5. 32 days extraordinary leave from 30-4-1998 to 31-5-1998."
23.  He, as noticed hereinbefore, filed application for regularisation of the said period of leave pursuant to or in furtherance of the observations made by the Chief Commissioner, Hyderabad in his order dated 08.05.1997.
24.  The principles of natural justice, it is well-settled, cannot be put into a strait-jacket formula. Its application will depend upon the facts and circumstances of each case. It is also well-settled that if a party after having proper notice chose not to appear, he a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta (Dead) through LRs. and Others Vs. Asha Devi Gupta (Smt.) and Others [(2003) 7 SCC 492 2003 Indlaw SC 719] of which two of us (V.N. Khare, CJI and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held:
"29.The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby..."
25.  The principles of natural justice, it is well-settled, must not be stretched too far.
26.  In any event, it is not a case where this Court should exercise its discretion in favour of the appellant. It is trite that in a given case, the Court may refuse to exercise its discretionary jurisdiction u/art. 136 of the Constitution. (See Chandra Singh and Others Vs. State of Rajasthan and Another [(2003) 6 SCC 545 2003 Indlaw SC 541] and State of Punjab & Ors. Vs. Savinderjit Kaur [JT 2004 (3) SC 4702004 Indlaw SC 227]
27.  The scope of public interest litigation has recently been noticed by this Court in Guruvayoor Devaswom Managing Committee and Another vs. C. K. Rajan and others [(2003) 7 SCC 546 2003 Indlaw SC 633] holding:
"...Statutory functions are assigned to the State by the Legislature and not by the Court. The Courts while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the Court shall not step-in in any circumstance whatsoever but the Court while exercising its power must also remind itself about the rule of self-restraint. The Courts, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance.
The court steps in by Mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of alternative remedy albeit is no bar to exercise jurisdiction u/art. 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the Constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. (See Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 1998 Indlaw SC 13).
It is trite that only because floodgates of cases will be opened, by itself may not be no ground to close the doors of courts of justice. The doors of the courts must be kept open but the Court cannot shut its eyes to the ground realities while entertaining a public interest litigation.
Exercise of self-restraint, thus, should be adhered to, subject of course to, just exceptions."
(See also Maharashtra State Board of Secondary Education Vs. Paritosh Bhupesh Kumarsheth etc., AIR 1984 SC 1543 1984 Indlaw SC 322.)
28.  The said decision has been followed in Chairman & MD, BPL Ltd. vs. S.P. Gururaja and Others [(2003) 8 SCC 567 2003 Indlaw SC 860], wherein it was noticed:
"Dawn Oliver in Constitutional Reform in the UK under the heading 'The Courts and Theories of Democracy, Citizenship, and Good Governance' at page 105 states:
"However, this concept of democracy as rights-based with limited governmental power, and in particular of the role of the courts in a democracy, carries high risks for the judges-and for the public. Courts may interfere in advisedly in public administration. The case of Bromley London Borough Council v. Greater London Council ([1983] 1 A.C. 768 , HL) is a classic example. The House of Lords quashed the GLC cheap fares policy as being based on a misreading of the statutory provisions, but were accused of themselves misunderstanding transport policy in so doing. The courts are not experts in policy and public administration-Jowell's point that the courts should not step beyond their institutional capacity (Jowell, 2000). Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH Vs. Secretary of State for the Home Department ([2002] EWCA Civ. 158 : [2002] 3 W.L.R. 344) and of Lord Nimmo Smith in Adams v. Lord Advocate (Court of Session, Times, 8 August 2002) in which a distinction was drawn between areas where the subject matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would undermine the rule of law. Government and public opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law."
In Onkarlal Bajaj and Others Vs. Union of India and Another [(2003) 2 SCC 673 2002 Indlaw SC 1577] it was observed:
"The expression 'public interest' or 'probity in governance', cannot be put in a straitjacket. 'Public interest' takes into its fold several factors. There cannot be any hard and fast rule to determine what is public interest the circumstances in each case would determine whether Government action was taken is in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions.
Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate."
29.  We are pained to see how the forum of public interest litigation is being abused. This Court recently had also the occasion to notice the same. (See Ashok Kumar Pandey Vs. State of West Bengal, 2003 AIR SCW 6105 2003 Indlaw SC 1010 and Dr. B. Singh Vs. Union of India and Others, 2004 AIR SCW 1494 2004 Indlaw SC 196).
30.  For the reasons aforementioned, we do not find any merit in this appeal which is dismissed accordingly. No costs.
Appeal dismissed.


Inder Parkash Gupta v State Of Jammu & Kashmir & Ors.
Supreme Court of India

20 April 2004
Appeal (civil) 3734 of 2002 With CA Nos.3735/2002, 3736/2002, 3737/2002, 3738/2002 and 3739/2002
The Judgment was delivered by : S. B. Sinha, J.
INTRODUCTION:
1.  These six appeals involving common questions of law and fact were taken up for hearing and are being disposed of by this common judgment.
BACKGROUND FACTS:
2. Under the Health Ministry of the State of Jammu and Kashmir there are two different departments, medical health and medical education. The employees working in those departments are borne on separate cadres. The Respondents 3 to 10 before the High Court were appointed as ad hoc lecturers in medicine in the medical education department by the State of Jammu and Kashmir. No recommendation of the Jammu and Kashmir Public Service Commission was obtained therefor. The said ad hoc appointments were set aside by this court in Jammu and Kashmir Public Service Commission Vs. Dr.Narender Mohan & Ors. reported in 1994 (2) SCC 630 1991 Indlaw SC 160 wherein the State was directed to refer the vacancies to the Commission and make appointments in terms of the recommendations made by it in that behalf. Pursuant thereto and in furtherance thereof, an advertisement was issued by the Commission for some posts of Lecturers on or about 8.3.1994 in the Health and Medical education department. The educational qualification prescribed therefor was "M.D.(Medical/general medical) MCRF, FRCP. Speciality Board of Internal Medical (USA) or an equivalent qualification in the subject with experience as Registrar/Tutor/Demonstrator/Tutor or Senior Resident for a period of two years in the discipline of Medicine, in a teaching medical institution recognised by the Medical Council of India. The notification issued by the Public Service Commission further stipulated that the candidates who possessed any experience in the line, any distinction in sports/games, NCC activities should furnish certificate, along with the application, to that effect.
3.  It is not in dispute that the appointment in the posts of Lecturers was governed by a statutory rule called Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 (for short, 1979 Rules; Rule 8 whereof reads thus:
"8. Method of recruitment: While making selections.-
(1) to the posts in the teaching wing of the service, the Commission/ Department Promotion Committee shall have regard to the following, namely,-
(a) Academic qualifications of the candidates;
(b) Teaching experience;
(c) Research experience; and
(d) Previous record of work, if any."
4.  The Public Service Commission, however, framed a rule in the year 1980, known as Jammu & Kashmir Public Service Commission (Business & Procedure) Rules, 1980 (for short, 1980 Rules ) although there did not exist any provision therefor. Rule 51 of 1980 Rules is as under:
"Rule 51. The assessment at an interview shall be based on the following principles:-
A. Performance of the candidate in the viva voce test ...100 Marks
B. Academic Merit-
(i) Percentage of marks obtained in the basic (i.e., minimum qualification prescribed for the post ...25 Marks
(ii) Higher qualification than the basic (minimum) prescribed for the post such as Diploma or Degree in the concerned Speciality/Superspeciality/ Subject/Discipline-
(a) Diploma - 2 Marks) subject to
(b) Degree - 5 Marks) a maximum of) 5 marks
C. Experience acquired by the candidate in the concerned Speciality/ Superspeciality/Subject/Discipline
(i) exceeding 1 year but not 2 years ...2 marks
(ii)for excess 2 years - for every full year 1 mark subject to a total of 5 marks including those under (i)
D. Sports/Game : Distinction in sports/games (i.e., representing a University, State or Region in any Sports/Games. ...3 Marks
E. Distinction in NCC activities (i.e., having held the rank of Junior Under Officer or Senior under officer or having passed the top grade certificate examination of NCC). ...2 Marks
Total A to E...140 Marks"
5. The Commission interviewed the candidates in terms of Rule 51 aforementioned.
6.  Upon taking the vice voce test and considering the materials on records, the public Service Commission made recommendations pursuant to or in furtherance whereof, the Respondent Nos.3 to 10 were appointed by the State.
Writ Petitions before the High Court:
7. Questioning the validity of the Rule 51 of 1980 and consequently the selection and appointment of the Respondents No.3 to 10, a writ petition was filed by Shri Inder Parkash Gupta, inter alia, contending therein that the Respondents No.3, 6 & 9 were not eligible to be considered for appointment to the said posts as they did not possess requisite experience of two years as Registrar/Tutor. It was further alleged that the Respondent No.10 at that time was overage. Further contention of the writ petitioner was that his research work, experience and publications had not been taken into consideration by the Commission. In particular, his higher qualification of D.M. had not been given due weightage.
8.  It was also urged that keeping in view the decision of this Court in J & K Public Service Commission V. Dr. Narender Mohan [1994 (2) SCC 630 1991 Indlaw SC 160] wherein the appointments of Respondent Nos. 3 and 10 as ad hoc Lecturers have been quashed, the purported experience gained by them in the said capacity could not have been taken into consideration by the Commission. The selection made by the Commission was said to be arbitrary and illegal as the criteria laid down in Rule 51 of 1980 Rules had been applied to assess the merit and suitability of the candidates ignoring Rule 8 of 1979 Rules whereby and wherein eligibility criterion and method of recruitment were laid down.
9.  A further contention was raised by the said writ petitioner to the effect that 100 marks earmarked for viva voce test in Rule 51 is unreasonable and excessive.
10.  The State of Jammu & Kashmir did not file any counter affidavit but Public Service Commission did. The private respondents also filed their counter affidavits.
11.  The writ petition having regard to the importance of the questions involved was referred to a Full Bench for its decision. The Full Bench by its judgment dated 30.7.1999 passed in SWP No.211 of 1994, for all intent and purport accepted the major contentions raised on behalf of the writ petitioner/appellant holding:-
"1. The Commission has the competence and jurisdiction to frame rules for conducting its business such as Rules 1980;
2. Rule 51 of Rules 1980 should be re-framed by the Commission in accordance with the observations made in the course of this judgment.
3. The selection of selected candidates made by the Commission is not disturbed subject to the relief granted to the petitioner;
4. The petitioner shall be treated to have been selected and placed in the select panel above respondents 3 and 9 who in turn shall be the selected candidates in the select panel after respondent no.4 and the petitioner. The petitioner shall further be entitled to all consequential service benefits."
12.  The writ petitioner, Inder Parkash Gupta has filed an appeal thereagainst which has been marked as C.A.No.3734/2002 and the State has filed an appeal which has been marked as 3736/2002.
13.  One Dr. Vinay Rampal who was not a party in the writ petition has filed an appeal which has been marked as C.A.No.3735 of 2002 against the judgment.
14.  An order of Jammu & Kashmir High Court passed by a learned single Judge dated 5.5.1997 in a batch of writ petitions which were disposed of following the Full Bench decision of this Court is the subject matter of other three appeals. A further contention was raised in the said writ petitions to the effect that even assuming Rule 51 of 1980 Rules to be valid, as it prescribed certain marks to be allotted, the same should be allotted to the superspeciality post which the concerned person had been holding and not his experience in any other capacity. The said appeals are marked as Civil Appeal Nos.3737/2002, 3738/2002 and 3739/2002.
15.  It is not in dispute that the Public Service Commission proposed a select list of 16 candidates for appointment. Dr. Inder Parkash Gupta's name appeared at Sl.No.13 therein. The private respondents whose names appeared at Sl.No.3 to 10 of the select list were appointed. Two posts were kept in abeyance as the matter regarding reservation was pending before the State Government.
16.  It, however, stands admitted that during the pendency these appeals the proceedings the State of Jammu & Kashmir issued a notification dated 22.5.2002 whereby and whereunder the appellant herein Inder Parkash Gupta was given promotion in terms of the judgment of the High Court but the same had been applied prospectively and without giving any monetary and seniority benefits to Shri Gupta.
High Court Judgment:
17. The High Court having regard to the pleadings of the parties and submissions made before it formulated the following questions:-
"1. Whether the Commission has the competence and jurisdiction to frame the Jammu and Kashmir Public Service Commission (Conduct of business and Procedure) Rules, 1980?
2. Whether the selection made applying criteria prescribed under Rule 51 of the Rules (supra), has the effect of ignoring Rule 8 of the Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979, which prescribes the statutory method of recruitment to the posts in teaching wing?
3. Whether the experience as ad hoc lecturer can be counted as experience gained as Registrar/ Tutor, Demonstrator/Tutor or Senior Resident/Tutor to meet the requirement of statutory eligibility condition to seek consideration for selection and appointment as lecturer?
4. Whether 100 marks earmarked for viva voce test and 40 marks for record as per the criteria contained in rule 51 (supra), are excessive and capable of turning the merit into demerit in view of the judgments of the Supreme Court and thus Rule 51 needs re-consideration?
5. Whether the selection of respondents 6 to 10 and particularly of respondents 3,6,9 & 10 is bad being not in accordance with the statutory method of selection and is also the result of arbitrary selection?"
18.  As regard question No.1, it was answered in the negative stating that although no such power is expressly conferred upon the Commission but proceeded to hold that the Commission had the competence and jurisdiction to frame such regulatory procedural rules for conduct of its own business and this power is impliedly granted by the enactment. As regard question No.2, the High Court was of the opinion that Rule 8 of 1979 Rules prevailed over Rule 51 of 1980 Rules holding that no additional qualification can be attached or added to the prescribed eligibility qualification or method of selection by the Commission holding:-
"Thus, the Commission has not properly followed and applied the method of selection relating to the service, while making selection, prescribed under rule 8 of Rules 1979."
19.  As regard the eligibility of the Respondents 3, 6 & 9, the High Court noticed that the said respondents did not possess requisite experience observing that the Commission did not specifically explain as to how these Respondents were said to have possessed two years experience as Registrar, Demonstrator or a Senior Resident. It was held:-
"Respondent No.3 Dr. Jaipal Singh, is having experience as Registrar only of 22 months whereas Respondent No.9 Dr. Jatinder Singh is having experience of 20 months 27 days which is less than two years."
20.  As regard the question No.4, the High Court answered the same in the affirmative relying on various decisions of this Court. It was held that in Engineering Service there is no such rule providing statutory method of selection as is found in Rule 8 of 1979 Rules holding:-
"Rule 51 providing 100 marks for viva voce against 40 for record, makes a departure and is apparently contrary to the law laid down by the Supreme Court and necessitates re-consideration of Rule 51 for the added reason that there is no consensus of judicial opinion rendered in Abdul Wahid Zargar's case vis-vis the judgments of the Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit, where the selection is made on the basis of interview alone. There is another reason also that Rule 51 has not taken care of Rule 8 of Service Rules 1979, consequence whereof is that the statutory method of selection has not been comprehensively followed and adopted in the rule. For these reasons Rule 51 is required to be recast."
21.  While answering question No.5, the High Court noticed that no marks had been assigned for the research experience, publications or previous record of work, which could not be ignored as there was a statutory obligation upon the Commission to make selection according to the statutory rules governing the service and further noticing that the Respondent Nos.4, 5 & 7 (namely, Masood Tanvir Bhat, Samia Rashid and Parvez Ahmed Shah) could not secure any mark out of the 15 marks as they did not possess the requisite research experience etc. and were not found entitled thereto but despite the same had been selected as higher marks were allotted to them in the viva voce test. It was held:-
"It is established from the record that the selection has been based upon 15 marks for record (as 25 marks could not be utilised) and 100 marks for interview. The claim of the respondent-Commission that 40 marks have been taken into consideration for record while applying Rule 51, is not forthcoming from the record maintained by the Commission.
The Petitioner is admittedly possessed of the higher qualification and record of research experience, publications etc. in comparison to the other selected candidates. Respondents 3 and 9 are not having any such record. The petitioner has been assigned minimum marks in the viva voce which has down-graded him in the merit list of the candidates supplied to the court even though he is D.M. The Commission has turned the merit of the petitioner into de-merit by giving minimum marks..."
22.  Despite such findings, the High Court refused to set aside the entire selection on the premise that the same had been made long ago and one of the respondents had been promoted and proceeded to dispose of the writ petition with the directions as noticed hereinbefore.
Submissions:
23. Mr. Ranjit Kumar, learned counsel appearing on behalf of the appellant would submit that Rule 51 of 1980 Rules framed by the Public Service Commission is not statutory in nature. He would urge that keeping in view the advertisement issued, the Commission was bound to scrupulously comply with the requirements as regard qualification etc. and should have strictly applied Rule 8 of 1979 Rules which is admittedly statutory in nature. The Learned Counsel would further contend that as the Commission had no jurisdiction to frame such rules, the same should have been declared ultra vires by the High Court. Mr. Ranjit Kumar would urge that Section 133 of the Jammu and Kashmir Constitution which is in pari materia with Article 320 of Constitution of India clearly provides that only in certain situations the Governor can frame regulations as a result whereof the necessity to consult the Commission may be done away with. The Rules framed by the Public Service Commission does not also satisfy the test laid down in the proviso appended to Section 133 of the State Constitution or for that matter Article 320 of the Constitution of India and in any event the same having not been laid before the Legislature as is mandatorily required under sub-section (4) thereof, the selection held pursuant to or in furtherance of Rule 51 of 1980 Rules must be held to be wholly illegal and without jurisdiction.
24.  The Learned Counsel Kumar would argue that having regard to the findings arrived at by the High Court, the writ petition could not have been disposed of in the manner as was sought to be done inasmuch as some of the private respondents admittedly did not have the requisite qualification or experience to be appointed. Merit of the appellant, it was contended, having admittedly been turned into demerit as was found by the High Court, relief by way of solace given to the appellant by placing him respondent No.6 & 9 must be held to be insufficient and he, in any event, deserved to be placed above some other respondents in view of the fact that he had not been assigned 5 marks for higher qualification. In any view of the matter, awarding of 100 marks in viva voce examination out of the total 115 marks (as no marks have been awarded for academic merit) was bad in law.
25.  The learned counsel would further submit that as some of the respondents did not have two years' experience and as admittedly Respondents No.3 to 5 did not have any higher qualification, there was no reason as to why the entire selection was not set aside. Lapse of time in selection of the candidates may not itself be sufficient ground to uphold his selection, the learned counsel would urge, having regard to the seniority of the petitioner and further having regard to the fact that all the private parties being in the service of the State, they could only be reverted back to their parent departments and would not be out of job.
26.  Mr. Anis Suhrawardy, learned counsel appearing on behalf of the State of Jammu and Kashmir, on the other hand, would submit that keeping in view the fact that appellant Inder Parkash Gupta had already been promoted and furthermore in view of the subsequent event this Court should not interfere in the matter.
27.  No submission was made on behalf of any other parties to the appeals.
Analysis:
28. Section 133 of the Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 admittedly were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said rules are statutory in nature. Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the Constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which perse would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut off marks. [See State of Punjab & Ors. vs. Manjit Singh and Ors. [2003 (11) SCC 559 2003 Indlaw SC 766].
29.  Rule 8 mandates that while selecting the teaching wing of the service, the Commission must have regard to the academic qualification of the candidate, teaching experience, research experience and previous record of work, if any.
30.  Rule 8 does not speak of any viva voce test. It, however, appears that so far as academic qualification is concerned, the same had been laid in the advertisement and the requirement of M.D. (Medical/General Medical), MCRF, FRCP, Speciality Board of Internal Medicine (USA) or an equivalent qualification of the subject. So far as the teaching experience is concerned, two years experience as Registrar/Tutor/Demonstrator/Tutor or a Senior Resident in the discipline of medicine in a recognised teaching medical institution recognised by the Medical Council of India was specified.
31.  So far as the teaching experience is concerned, the Commission awarded marks to those who had even less than two years experience. One mark was to be awarded for every full year of experience subject to a total of 5 marks. Sports/Games distinction in NCC activities had also been taken into consideration which were not the criterion prescribed under the 1979 Rules. There is nothing to show that any mark was awarded in relation to the previous record of work, if any.
32.  In its judgment, the High Court did notice that in awarding marks for minimum qualification prescribed for the post, the Commission did not award any mark at all to some respondents. It, therefore, for all intent and purport had considered the candidatures of the candidates only on the basis of 110 marks. If the marks awarded for sports/games and NCC activities are excluded as they are beyond the purview of Rule 8; and as it fixed 100 marks for viva voce test, a clear case of breach of the Statutory Rules had been made out. While the appellant had been given minimum marks in the viva voce test, the other respondents who even did not fulfill the requisite criterion were awarded higher marks.
33.  The High Court, in our opinion, was correct in holding that Rule 51 providing for 100 marks for viva voce test against 4o for other criteria is contrary to law laid down by this Court. [See Union of India and Anr. Vs. N.Chandrasekharan & Ors. [ AIR 1998 SCC 795 1998 Indlaw SC 1942 ], Indian Airlines Corporation Vs. Capt. K.C. Shukla & Ors. [1993 (1) SCC 17 1992 Indlaw SC 636], Anzar Ahmad Vs. State of Bihar and Ors. [ 1994 (1) SCC 150 1993 Indlaw SC 1366] and Satpal and Ors. Vs. State of Haryana and Ors.]
34.  It is true that for allocation of marks for viva voce test, no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such mark is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India. [See Jasvinder Singh & Ors. Vs. State of J & K and Ors.[2003 (2) SCC 132 2002 Indlaw SC 1527], Vijay Syal and Anr. Vs. State of Punjab and Ors. [2003 (9) SCC 4012003 Indlaw SC 484].
35.  It is also trite that when there is requirement of consultation, in absence of any statutory procedure, the competent authority may follow its own procedure subject to the conditions that the same is not hit by Article 14 of the Constitution of India. [See Chairman & MD, BPL Ltd. Vs. S.P.Gururaja and Ors. [2003 (8) SCC 567 2003 Indlaw SC 860]
36.  We would proceed on the assumption that the Commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as regards qualification, experience etc. but could also take viva voce test. But marks allotted therefor should indisputably be within a reasonable limit. Having regard to Rule 8 of 1979 Rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must, therefore, be suitably recast.
37.  The High Court assigned sufficient and cogent reasons in support of its conclusions which have been noticed by us hereinbefore. We agree with the said reasonings.
38.  The only question which survives for consideration is what would be the meaning of the 'post' contained in Rule 51 (b)?
39. In our opinion, a higher qualification than the basic (minimum) prescribed for the post would evidently mean the department of superspeciality for which the appointment was made and not any other superspeciality.
Conclusions:
40.  Having held so, the question which remains to be determined is as to what relief should be granted to appellant herein.
41.  While issuing the Notification dated 22.5.2002 the State evidently did not fully comply with the judgment of the High Court. The appellant in view of the judgment of the High Court was not only entitled to be placed in the select panel above Respondent Nos.3 and 9 but also should have been given all consequential service benefits which would include monetary benefits, seniority etc.
42.  In ordinary course we would have allowed the appeal but we cannot lose sight of the fact that the selections had been made in the year 1994. A valuable period of 10 years has elapsed. The private respondents have been working in their posts for the last 10 years. It is trite that with a view to do complete justice between the parties, this Court in a given case may not exercise its jurisdiction under Article 136 of the Constitution of India. [See Chandra Singh and Ors. Vs. State of Rajasthan and Anr. [ 2003 (6) SCC 545 2003 Indlaw SC 541], M.P.Vidyut Karamchari Sangh Vs. M.P. Electricity Board [ JT 2004 (3) SC 423 2004 Indlaw SC 198] and State of Punjab & Ors. Vs. Savinderjit Kaur
43.  We are, therefore, of the opinion that the interest of justice would be subserved if the State is directed to fully comply with the directions of the High Court by giving all benefits to the appellant herein including monetary benefits and seniority by placing him in the select list above Respondents 3 and 9. We further direct that if any respondent has been promoted to the higher post in the meantime the same would be subject to our aforementioned direction. Necessary order in this behalf must be passed by the State.
44.  These appeals are disposed of accordingly. The cost of the appellant herein shall be borne by the State of Jammu and Kashmir quantified at 10,000; we hope and trust that the State of Jammu and Kashmir as also Jammu and Kashmir Public Service Commission shall make all endeavours to see confidence in the Statutory Bodies restored, and they would henceforth comply with legal requirements strictly and scrupulously.
Appeals disposed of