Constitution of India, 1950-Articles 12 and 14-Contract Act, 1872-Section 23-State Government dissolved a State Society incurring heavy losses-Employees of the Society filed Writ Petition before High Court contending that the Society was an agent of the State and hence their services could not terminated being government employees-State formulated a Scheme of providing alternative employment to the employees in various local bodies subject to certain terms and conditions upon filing of an affidavit-Employees accepted alternative employment and filed affidavits-Single Judge of the High Court quashed the scheme of providing alternative employment-Division Bench of the High Court set aside order of the Single Judge-High Court, however, directed the State to give pay protection, continuity of past service for pensionary/retiral benefits and the benefit of 5th Pay Commission on notional basis to the employees-High Court also treated daily wagers as regular appointees and made available the benefits given to regular employees-Correctness of-Held, State has the power to abolish posts-Court cannot issue a Writ of Mandamus to the State to continue with the services of the employees-On facts, employees are estopped from claiming the benefits and challenging the terms and condititons of the Scheme since they have accepted the Scheme and filed affidavits-There is also no pleading in the Writ Petition that the terms and conditions of the Scheme are contrary to the provisions of the Contract Act, 1872 or is violative of Article 14 of the Constitution of India-Hence the employees cannot claim the benefit of pay protection, continuity in service and the benefit under the 5th Pay Commission-Daily wagers cannot be put on par with regular employees under any law and hence no relief is granted to them-State, however, may sympathetically consider absorption subject to the conditions laid down. Appellant No. 1-a Society registered under the Societies Registration Act, 1860, was formed as a result of a Scheme formulated by Housing and Urban Development Corporation to set up a chain of building centres in the State. After a few years, the Society incurred heavy losses and it could not pay salaries to its employees. State Government took a decision to dissolve the Society. Employees of the Society filed Writ Petitions before High Court challenging the action of the State and the Housing Board contending that their services could not be terminated since the Society was an agent of the State and the State Housing Board and hence, the termination orders, if any, passed be quashed and they be retained in service with benefit of their past services; and that the order of the State to take them into service in the local bodies of the State at the lowest grade of services without any benefit of past services be quashed. The State and its Housing Board contended in the Writ Petition that the Society was not a State under Article 12 of the Constitution of India since it was neither financially nor administratively controlled by the State. During the pendency of the Writ Petitions before the High Court, the State offered alternative employment in various local bodies of the State subject to filing of an affidavit accepting the terms and conditions. The employees accepted the terms and conditions and filed affidavits. Single Judge of the High Court allowed the Writ Petition of the employees. The High Court directed the State to pay unpaid salaries to the employees. The High Court also directed the State Housing Board to create a new cell and take the employees into it and quashed the policy of the State Government to give alternative employment in various local bodies. The State Government, Housing Board and the Society filed appeals before the Division Bench of the High Court. The employees also filed an appeal before the Division Bench of the High Court. The High Court maintained the direction of payment of unpaid salary to the employees but set aside the quashing of the policy of the State of providing alternative employment in various local bodies. The High Court, however, directed the State to give pay protection; continuity of past service for pensionary/retiral benefits; and the benefit of 5th Pay Commission on notional basis to the employees. The High Court also treated daily wagers as regular appointees and made available the benefits given to regular employees. Hence the appeals filed by State, Housing Board, Society and the employees. The State contended that the abolition of a post is an inherent right of an employer particularly if there was lack of funds or heavy loss; that the employees, whose services have been terminated, have no right to seek re-employment or absorption in other departments of the State; that, even though there was no legal obligation to offer alternative employment, it framed a scheme and offered employment in other local bodies of the State; that the directions of the High Court will create additional financial burden upon the various local bodies which absorbed the employees; that the employees have submitted affidavits to the State stating that their alternative employment with local bodies will be treated as fresh appointments and would not claim continuity of service, seniority, pay protection etc.; that the employees are estopped from challenging the terms and conditions of the alternative employment after filing the affidavit; that the employees did not claim that the terms and conditions of alternative employment are unfair or that there was allegation that the employees were coerced or unduly influenced to submit the affidavit; that the benefit of 5th Pay Commission are not available to them since they were not government employees; that the daily wagers have no right to seek regular appointment from the State; that the Rajasthan Civil Services Rules, 1969 are not applicable as the employees were not government servants; and that they did not raise any ground in the Writ Petition that the decision to liquidate the Society was mala fide and that the decision should be quashed. The employees contended that the State should act as a model employer exhibiting fairness of action towards the employees; that they should be given pay protection, seniority, continuity of service for pensionary/retiral benefits; that the terms and conditions of the alternative employment violate Article 14 of the Constitution of India and that the settlement is void under section 23 of the Contract Act, 1872; that any undertaking to the Court and contractual arrangement resultant thereto does not oust the jurisdiction or the power of the Court to hear case or grant relief; and that the daily wage employees should be treated on par with other employees and should be entitled to similar benefits.

Disposing of the appeals, the Court HELD: 1.1. The power to abolish a post, which may result in the holder thereof ceasing to be a Government Servant, has got to be recognized. The measure of economy and the need for streamlining the administration to make it more efficient may induce any State Government to make alterations in the staffing pattern of the civil services necessitating either the increase or the decrease in the number of posts or abolish the post. In such an event, the Court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged. The employees of the Society have accepted alternative employment and filed an affidavit. They cannot now say that the judgment of the Division Bench of the High Court should be given effect. To they are estopped from claiming the benefits and challenging the terms and conditions of the fresh employment. The employees have no right to resile from the affidavits filed before the High Court. At no point of time, the employees raised any dispute as regards the fairness of the settlement. Having obtained the benefit, it was not open to them to turn down without justifiable reasons to contend that the settlement was not fair and they should be given pay protection, continuity of service for retiral benefits and placing the employees on par in the receiving Department. [537-f, g; 538-a-d] 1.2. The State has acted fairly and benevolently eventhough it has no constitutional and legal obligation to offer alternative employment to the employees on the abolition of the posts. The State framed a scheme and offered employment in other local bodies of the government by relaxing the rules of such bodies and the terms and conditions were fixed without financial economic compulsions of the State. Thus the terms and conditions of such alternative employment cannot be challenged. There is also no pleading in the Writ Petition that the conditions contained in the affidavit of undertaking are contrary to Section 23 of the Contract Act, 1872 or violative of Article 14 or inconsistent with the Directive Principles of State Policy of the Constitution of India. The State is directed to strictly adhere to and implement its decision to offer employment in other local bodies in letter and spirit. All the erstwhile employees, if not already employed, should be employed in the local bodies as per the scheme formulated by the State in a war footing. [535-e; 540-c, d] Rajendra v. State of Rajasthan, [1999] 2 SCC 317 and S.K. Nilajkar v. Telecom District Manager, [2003] 4 SCC 27, relied on. M. Ramanathan Pillai v. State of Kerala, [1973] 2 SCC 650; K. Rajendran v. State of Tamil Nadu, [1982] 2 SCC 273; Bank of India v. O.P. Swarnakar, [2003] 2 SCC 721; State of Uttaranchal v. Jagpal Singh Tyagi, [2005] 8 SCC 49; Central Inland Water Transport Corporation Ltd. and Anr. v. Brajo Nath Ganguly and Anr., [1986] 3 SCC 156; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., [1991] 1 Supp. 1 SCC 600; Gurmail Singh v. State of Punjab, [1991] 1 SCC 748; Prakash Ramachandra v. Maruthi, [1995] Supp. 2 SCC 539; National Building Construction Corporation v. Raghunathan, [1998] 7 SCC 66; Federal Bank Ltd. Sagar Thomas, [2003] 10 SCC 733 and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, [2002] 5 SCC 111, referred to. 1.4. There is a Cabinet decision of the State that no pay protection should be granted to the employees. The cabinet decision was taken after taking into consideration the views of the Finance Department as it has huge financial burden on the local bodies offering re-employment after relaxing their own recruitment rules. The undertaking by the employees when they were absorbed into other local bodies had the same stipulation. This being so, the claim for pay protection by the employees at this late stage cannot be made. Due to the absence of any legal right for pay protection to the employees, such claims cannot be sought for. In the absence of any legal right of pay protection and fresh employment consequent upon on fresh appointment on humanitarian grounds, the decision of the High Court to grant protection of pay is unsustainable and liable to be interfered with. [535-g, h 536-a; 538-d] 1.5. There is a Cabinet decision of the State that the benefit of past service is not to be counted for any purpose. The undertaking by the employees when they were absorbed into other local bodies had the same stipulation. Under the provisions of the Society Employees Service Regulation, 1993, the employees were having the benefit of contributing provident fund and were not entitled to any other pensionary/retiral benefits. The employees have withdrawn provident fund including the employer's contribution after termination of service from the Society. Thus the services rendered by the employees with the Society cannot be counted for the purpose of pensionary/retiral benefits since such benefits were not available to them even in their parent organization. Therefore, such claim for counting services rendered in the Society for the pensionary/retiral benefits cannot be made. [536-b; 539-a-c] 1.6. The recommendations of the 5th Pay Commission is applicable only to Government Servants. Since the employees of the Society are not government servants, they are not entitled to the benefits under 5th Pay Commission Report. In the Writ Petition, there was no prayer for grant of benefit of 5th Pay Commission. Thus the High Court has erred in directing that the benefit of the recommendations of the 5th Pay Commission shall be given to the employees of the Society on notional basis. The employees would be governed by the terms and conditions of the local bodies where they have been re-employed. [539-d, e] A.I. Railway Parcel and Goods Porters Union v. Union of India and Ors., [2003] 11 SCC 590, referred to. 1.7. The daily wage employees cannot be put on par with regular employees under any law prevalent as of date. The finding of the High Court that they can be treated on par with regular employees and be given various reliefs is wrong and erroneous under law. Therefore, no relief is granted to the daily wage employees as their claim is not justified under law. However, the State may sympathetically consider absorption of these employees in the vacancy available if any in future by giving them preference to other new applicants in any of their local bodies etc. subject to the stated conditions laid down. [536-g, h; 537-a] Punjab State Electricity Board v. Malkiat Singh, [2005] 9 SCC 22, referred to. 1.8. The State Civil Services (Absorption of Surplus Personnel) Rules, 1969 are applicable only to the government servants. The employees of the Society are not government servants and hence the Rules are not applicable to them. [541-d] Vijay Hansaria, Dr. Rajeev Dhawan, B.D. Sharma, Jatinder Kumar Bhatia, Sushil Kumar Jain, A.P. Dhamija, H.D. Thanvi, Prashant, Ms. Rani Maheshwari, Ms. Pratibha Jain, Manish Kumar, Ansar Ahmad Chaudhary, Ch. Shamsuddin Khan, Ms. Shobha, Annam D.N. Rao, Ms. Shweta Verma, Aruneshwar Gupta, Naveen Kumar, Anil Kumar Gupta-II and Mrs. K. Sharda Devi for the appearing parties. 2006 AIR 3413, 2006(3 )SCR516 , 2006(4 )SCC132 , 2006(3 )SCALE583 , 2006(4 )JT118 CASE NO.: Appeal (civil) 5302 of 2004 PETITIONER: Avas Vikas Sansthan & Anr. RESPONDENT: Avas Vikas Sansthan Engineers Assn. & Ors. DATE OF JUDGMENT: 28/03/2006 BENCH: H.K. Sema & Dr. AR. Lakshmanan JUDGMENT: J U D G M E N T WITH C.A. Nos. 5303, 5305-5308, 5309-5311, 5312-5316, 5317-5322, 5323-5327, 5328-5330, 5331-5336, 5337, 5339, 5342-5348, 5349-5351, 5352-5354, 5356, 5357-5359, 5360-5365, 5366-5370, 5371-5376, 5377-5381, 5382-5385, 5386-5392 of 2004 Dr. AR. Lakshmanan, J. This batch of appeals arise from the common final judgment and order dated 03.05.2002, passed by the High Court of Judicature for Rajasthan at Jaipur in D.B. Civil Special Appeal No. 315/2002 etc. etc. in S.B.C.W.P. No. 1750/99 etc. etc. whereby the High Court partly allowed the appeal of the appellants-herein by holding that the employees (respondents) are entitled to reemployment and the various reliefs claimed by them. Since all the appeals involve common question of law, they have been heard together with the consent of concerned parties and are being disposed of by this judgment. Facts in brief: Avas Vikas Sansthan (in short 'the AVS') was registered as a Society under the Societies Registration Act, 1860 on 17.11.1988. The AVS was brought into existence to achieve certain objectives. The objects of the society were to collect information regarding low cost technology for construction of houses, undertake field studies for development of appropriate low cost building materials, undertake construction works, imparting practical training etc. in the State of Rajasthan. The AVS was brought into existence as a result of the Scheme formulated by the Housing and Urban Development Corporation, New Delhi, to set up chain of building centres in the State of Rajasthan. Appellant No.2 the Rajasthan Housing Board sanctioned a sum of Rs. 1-5 lakhs per building centre and provided land free of cost for setting up of 9 such centres in Rajasthan. The AVS was to raise its own resources; the State Government or the Rajasthan Housing Board did not have any control over the AVS. The AVS had employed the respondents. The AVS started functioning in the year 1989, but in the year 1997, it began to incur heavy losses and could not pay its employees their salaries after 01.12.1998. The Rajasthan Government decided that, in view of the financial and administrative conditions of the AVS, it should be dissolved and the State Government directed the appellant-the Rajasthan Housing Board to take immediate steps to liquidate the AVS. The State Government also directed that the employees of the AVS would be adjusted on priority on the vacant posts of Municipal Boards, Municipal Councils, Jaipur Development Authority and other local bodies whenever posts fell vacant on the retirement of the employees of such local bodies. By the resolution of the AVS dated 26.03.1999, the AVS was dissolved. The respondents (employees), feeling that their services might be terminated, filed a writ petition in the High Court on 26.03.1999, made the following averments: ? AVS is only an agent of the State Government of Rajasthan and of the Rajasthan Housing Board. ? The services of the respondents, who were employees of the State Government/Rajasthan Housing Board, could not be terminated by the Rajasthan Housing Board or the State Government or the AVS and ? Also if any termination order be passed it be quashed and they might be retained in service with benefit of their past services in all respects. ? The Government order dated 15.03.1999 was challenged by which the respondents were to be taken in service by local bodies viz. Panchayat, J.D.A. etc at the lowest grade of services without any benefit of past services. AVS terminated the services of all its 46 daily wage employees on 31.03.1999. On 01.06.1999, State Government issued an order which contained directions regarding the manner in which the employees of the AVS would be given first appointment in the local self-Government institutions in Rajasthan without benefit of past service. The condition, which was put by the Government was that, they would be given employment on the lowest post of pay drawn in AVS of direct recruitment and on the minimum of the grade and no benefit of past service would be given to them. An option was also given to the employees to retire under Voluntary Retirement Scheme, if they so desired. The Rajasthan Housing Board and the State Government of Rajasthan contested the writ petitions by filing replies. ? It was averred, inter alia, in the reply by the Rajasthan Housing Board that AVS was a registered Society under the Societies Registration Act, 1860. ? And it was neither financially nor administratively controlled by the State Government or the Housing Board and hence the said AVS could not be said to be a 'State' within the meaning of Article 12 of the Constitution of India and the employees were not employees of the State Government or Rajasthan Housing Board, they had no remedy against the State Government or the petitioner- Housing Board. During the pendency of the writ petitions, an offer was made to the employees of the AVS to agree to be given new appointment in local self Government institutions on the condition mentioned in order dated 01.06.1999 of the State Government and the employees were asked to submit undertaking in the form of affidavits that they were willing to take employment in the Municipal Boards, Municipal Councils, J.D.A etc. on the conditions set out in the order and that on such affidavits being filed, they would be given employment in such local Government institutions. The respondents and all the other permanent employees of the AVS submitted their affidavits and were given employment in the Municipal Boards, Municipal Councils, and J.D.A. Learned Single Judge of the High Court allowed the writ petition and held as under:- a) employees will be entitled to salary for the period worked by them; b) Rajasthan Housing Board to create a new cell in the name of the Low Cost Housing Centre or any other name and the employees would be employed in the said centre; c) The policy of the State Government to give alternate employment was quashed. However, the employees were given option to continue in the said employment if they so choose. Feeling aggrieved, the Rajasthan Housing Board, the AVS and the State Government preferred appeals before the Division Bench of the High Court. The Division Bench disposed of all the appeals by the impugned order. The Division Bench maintained the direction to pay unpaid salary. The direction to constitute a Low Cost Housing Centre and the quashing of State Government decision to provide alternate employment was set aside. However, the Division Bench on the appeal filed by the employees directed grant of following benefits: i) pay protection; ii) service to be counted for the purpose of pension and other retirement benefits; iii) benefit of fixed period higher pay sacle available to Government employees under Government Order dated 25.01. 1992; iv) benefit of 5th Pay Commission to be available on notional basis; v) one Narendra Kumar Sharma and few other daily wagers to be treated as regular appointees as they were selected but not appointed on regular basis till date of dissolution; vi) certain employees including Brijesh Kumar Goel and R.K.Saini who were working at Latur Project in Maharashtra were also entitled to alternative employment in local bodies. PARTICULARS OF APPEALS The appeals in the present batch of cases may be divided in the following three categories: A. The following 12 appeals have been filed by the RHB and AVS: Civil Appeal Nos. 5302/04, 5317-5322/04, 5312-5316/04, 5309-5311/04, 5323-5327/04, 5328-5330/04, 5331- 5336/04, 5342-5348/04, 5305-5308/04, 5337/04, 5303/04. B. The following 11 appeals have been filed by the State of Rajasthan: Civil Appeal Nos. 5339/04, 5371-5376/04, 5366-5370/04, 5309-5352-5354/04, 5377-5381/04, 5357-5359/04, 5360- 5365/04, 5386-5392/04, 5382-5385/04, 5356/04. C. The following appeal have been filed by the Employees: Civil Appeal Nos. 5349-5351/04 Against the decision of the Division Bench of the High Court, the appellants preferred the above appeals to this Court. We heard Mr. Vijay Hansaria, learned senior counsel appearing for the appellant and Dr. Rajeev Dhawan, learned senior counsel, Mr. Aruneshwar Gupta and Ms. Shobha, learned counsel appearing for the respective respondents. Mr. Vijay Hansaria, learned senior counsel for the appellants made the following submissions: a) That after the dissolution of the AVS, in the writ petition preferred by the respondents no ground was taken saying that the liquidation was mala fide nor was it prayed that the decision to liquidate be quashed. b) That on 18.05.1999 Cabinet decision was taken to absorb the employees of the AVS 'in principle' as decided on 09.03.1999 by prescribing certain terms and conditions after considering the opinion of the Finance Department. c) That there is no conflict between the Cabinet decisions dated 09.03.1999 and 18.05.1999, neither is there any change in policy of the State Government nor the State Government has gone back on any promise made earlier. In the cabinet decisions dated 09.03.1999 only an 'in principle' decision was taken to adjust the employees of the AVS in other local bodies and 'modalities' of adjustment was worked out in the Cabinet decision dated 18.05.1999. d) Thereafter the State Government wrote to all local bodies for appointment of employees of the AVS in their departments along with affidavits filed by the employees of the AVS showing their willingness to take employment in other local bodies. In 2000, all the employees of the AVS were given alternate employment as fresh employment on certain terms and conditions. All the employees have submitted affidavits inter- alia stating that their appointment with local bodies will be treated as fresh appointment and will not claim continuity of service, seniority, pay protection etc and that they will withdraw writ petition. Several employees have even filed application for the withdrawal of the writ petition in terms of their undertakings. e) the writ petition was not amended challenging the terms of undertaking filed by the employees of Sansthan for securing employment with the local bodies. There is no allegation in the writ petition that the employees were coerced/forced/unduly influenced to submit the undertaking. Submissions on Merit It was submitted by Mr. Hansaria that abolition of posts is a matter of policy and is an inherent right of the employer particularly on the closure of a project due to lack of funds and heavy loss. The natural consequence of abolition of posts in any organization is the termination of services of the employees engaged in such organization. It was further urged that the employees whose services have been terminated as a consequence of abolition of posts have no right to seek reemployment or absorption in other departments. Learned senior counsel relied on the view taken by this Court way back in 1973 in the case of M. Ramanathan Pillai v. State of Kerala, (1973) 2 SCC 650 that 'the discharge of the civil servant on account of abolition of post held by him is not an action which is proposed to be taken as a personal penalty but it is an action concerning the policy of the State whether a permanent post should continue or not. The power to abolish any civil post is inherent in every sovereign government. And such abolition will not entail any right on the person holding the abolished post the right to reemployment or to hold the same post. Learned senior counsel relied on the decision in K. Rajendran v. State of Tamil Nadu, (1982) 2 SCC 273 on the same issue in which this Court has held that, 'the question whether a person who ceases to be Government servant according to law should be rehabilitated by giving an alternative employment is, as the law stands today, a matter of policy on which the Court has no voice.' Citing the decision of this Court in the case of Rajendra v. State of Rajasthan (1999) 2 SCC 317 and S.M.Nilajkar v. Telecom District Manager (2003) 4 SCC 27 learned senior counsel submitted that when a project has been shut down due to want of funds the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. And also that the same will act as a disincentive to the state to float such schemes in future. With regard to the employment of 604 employees of the AVS, it was argued that the State of Rajasthan had no legal obligation to offer alternative employment to the erstwhile employees of the Sansthan. But the State of Rajasthan did frame a scheme and offered employment in other local bodies of the government. Therefore the terms and conditions of such alternative employment cannot be challenged. It was also submitted that additional financial burden will fall upon the various local bodies which have absorbed the employees of the AVS, if the directions of the Division Bench of the Rajasthan High Court are enforced. It was further argued that the employees of the AVS did accept the alternative employment with the terms and conditions set out initially by way of an affidavit and therefore they are now estopped from claiming benefit and challenging the terms and conditions of the fresh employment by citing the decision in the case of Bank of India v. O.P.Swarnakar (2003) 2 SCC 721 which laid down that, "the scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand." Placing reliance on a very recent decision of this Court in the State of Uttaranchal vs. Jagpal Singh Tyagi, (2005) 8 SCC 49, learned senior counsel submitted that, "the employees did not, at any point of time, claim that the terms of settlement were not fair, therefore after obtaining some benefit, it was not open to the employees to later turn away without justifiable cause and contend that the settlement was not fair." On the question of Pay Protection and for counting services rendered in the AVS for pension and other retiral benefits claimed by the respondents, the arguments put forward by the appellant was that on facts the Cabinet decision of 18-05-1999 specifically states that "no pay protection should be granted to the employees", the same was conveyed by the Rajasthan Housing Board letter dated 01-06-1999. This decision was taken after considering the views of the Finance Department. So also the undertaking by the employees when they were absorbed into other local bodies had the same stipulation, therefore at this later stage such pay protection and counting of services for pension and other retiral benefits cannot be claimed for. Coming to the claim of the respondents for the benefit of the Government order date 25.01.1992, it was argued by the appellants that the Government Order in question is applicable only to 'government servants' and as such the employees of AVS are not entitled to the benefit of the said government order. And also the employees would be governed by the terms and conditions of the local bodies where they have been reemployed. So also the benefit of the 5th Pay Commission is applicable only to government employees. Since the employees of the AVS are not govt employees they are not entitled to the benefit of the 5th Pay Commission. With regard to appointment of 46 daily wage employees, it was argued that after the dissolution of the Society, there is no right on the part of any employee to be reemployed. Therefore, it was argued that the daily wagers have no right seeking regular appointment. The decision of this Court in the case of Punjab State Electricity Board v. Malkiat Singh, (2005) 9 SCC 22 was relied on. It was held that, "it is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment". Thus it was argued that the Writ issued by the Division Bench of the High Court to treat the daily wagers at par with the regular appointees of Avas Vikas Sansthan is wrong. Further it was argued by the appellant that the decision in the case of Central Inland Waters Transport corporation limited & Anr. Vs. Brojo Nath Ganguly & Anr., (1986) 3 SCC 156 and Delhi Transport Corporation vs. D.T.C. Mazdoor Congree & Ors., (1991) Supp 1 SCC 600 have no application here because those cases relate to a term in the employment that even services of a permanent employee can be terminated on 3 months notice without assigning any reason and such condition was specifically assailed therein. The present matter relates to providing alternative employment to the employees of an organization that is liquidated and posts have been abolished. In such circumstances the employees of an organization that is liquidated has no right to seek reemployment. It was argued that the reliance placed by the respondents on the provisions of Rajasthan Civil Services Rules, 1969 is wholly misconceived as the Rules mentioned apply only to government servants. Therefore, these rules will not apply to employees of the AVS. Dr. Rajeev Dhawan, learned senior counsel for the respondent submitted as follows:- According to learned senior counsel, the judgment of the Division Bench of the Rajasthan High Court is correct in so far as it gave: a) Pay protection (including benefit of higher scales for completing of 9,18 and 27 years) b) Counting of service for retiral benefits for long standing employees of the AVS. Submissions on Law The State is expected to act as a model employer exhibiting 'fairness of action' towards long standing employees. Learned senior counsel relied on the decision of this Court in Gurmail Singh v. State of Punjab, (1991) 1 SCC 748. It was laid down by this Court that even though according to the provisions of Section 25-FF of the Industrial Disputes Act, 1947, retrenchment compensation has been paid and accepted, the State was under a duty to treat employees who were on deputation and those who were dismissed equally because the state was a "model employer" exhibiting "fairness in action". It was argued that the above case is an authority for the proposition that where a state body is shut down, it is part of the obligations of the state as a model employer dedicated to fairness in action that subject to adjustments, employees who were on deputation and those who are dismissed should be absorbed subject to similar equities:- There should necessarily be: - ? Pay protection where appointments are made on a lower scale. ? Counting of Service for retiral benefits ? Placing the employees on par in the receiving departments including salary Gurmail Singh (supra) has also laid down that it would not be fair to allow absorbed employees to steal a march over the employees in the department into which they are absorbed. However the regular appointees of such local bodies should not be put at a disadvantageous position by the loss of seniority due to the absorption of the employees of the AVS. Following the decision in the case of Central Inland Waters Transport corporation limited (supra), it can be observed that: 1. Unfair labour contracts shock the conscience and are opposed to public policy. 2. Such unconscionability could be caused by economic duress 3. Inequality of bargaining powers vitiates contracts, such contracts also violate Article 14 of the Constitution 4. This Court in the present case applied Section 23 of the Contract Act and held the contract to be unconscionable and void. "The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will when called upon to do so, strike down an unfair and unreasonable contract or an unfair or unreasonable clause in the contract, entered into by two parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men; one can only attempt to give some illustrations." Further, learned senior counsel submitted that this Court in Delhi Transport Corporation v. DTC Mazdoor Congress, (supra) approved the Central Inland decision (supra) and struck down the unconscionable 'hire & fire' clause. Our attention was invited to certain observations made by Ramaswamy, J. and B.C. Ray, J; which are as under:- 1. The State cannot impose unconscionable conditions and stated that such contracts were contrary to Article 14. 2. Public policy in contract be construed accordingly and be drawn from the constitution. B.C. Ray, J. observed that there should not be any limitation on the freedom of contract and specifically approved Central Inland decision (supra) in respect of such contracts being contrary to Article 14 guaranteed under the Constitution. This Court further observed that, "The court has, therefore the jurisdiction and power to strike or set aside the unfavourable terms in contract of employment which purports to give effect to unconscionable bargain violating Article 14 of the constitution." It was further observed in the case of Prakash Ramachandra v. Maruthi, 1995 Supp (2) SCC 539 that any undertaking to the court and contractual arrangement resultant thereto does not oust the jurisdiction or the power of the court to hear cases or grant relief. Learned counsel for the respondents while citing the decision in National Building Construction Corporation v. Raghunathan, (1998) 7 SCC 66 argued that a legitimate expectation is created where employees have been assured absorption on one basis, which is there altered to their detriment under coercive circumstances where they have not been paid and acted on the previous promise that they have tried to enforce in court. It was further argued that the decisions cited by the appellant on Article 311 and abolishing civil posts are exceptional and irrelevant to the present controversy. Therefore, according to learned senior counsel, the law clearly establishes that, (a) The State must be a model employer and show fairness in action (b) Even where all statutory requirements (such as Section 25 FF) and technicalities have been complied with, the State must be fair enough to absorb employees on a minimal fairness basis which includes: i) protection to pay scale ii) counting of past service for pensionary benefits iii) no seniority over new employees in the new organization iv) equal treatment in future with all employees (c) Unconscionable contracts and undertakings are contrary to section 23 of the Indian Contract Act, public policy, Article 14 of the Constitution and Directive Principles of state policies. (d) Undertakings not accepted by the lower court (and even if accepted) do not inhibit this Court's jurisdiction to hear a matter and grant relief. With regard to the argument of the appellant's counsel that: (a) the employees should not be given pensions; (b) the Division Bench should not have ordered increments at 7,13 & 27 years as are available to other employees the learned counsel argued that, if this was made practicable, the employees after joining the new department cannot be meted out discriminatory treatment. They will lose seniority, but they cannot be denied benefits available to others. The respondent's counsel also stated that a situation cannot be created where, a former AVS worker has no pension or Provident Fund and also not to discriminate by not to extending 9,18 & 27 years of service which would be available to others. Mr. Aruneshwar Gupta, learned counsel for the respondent made the following submissions:- That AVS falls within the definition of 'other authorities' under Article 12 of the Constitution and was managed, controlled and owned by the State of Rajasthan and was dealing with the affairs of the State by referring to the decisions of this Court in Federal Bank Ltd v. Sagar Thomas, (2003) 10 SCC 733 and Pradeep Kumar Biswas v. Indian Institution of Chemical Biology, (2002) 5 SCC 111. It was further argued that the learned Single Judge clearly held that the entitlement of the employees was not on any humanitarian ground but because the employees had a right to be absorbed and to be treated in a reasonable, just and proper manner. According to Mr. Aruneshwar Gupta, the employees, who have been absorbed in the other authorities, were entitled to the following reliefs: - 1. Fitment in the stage of the pay scale, which they were already drawing in the Avas Vikas Sansthan and consequent increments. 2. Arrears of pay on the basis of the above statement 3. Seniority of the AVS vis-`-vis employees in the authorities in which they were absorbed. They are entitled to seniority in the other undertakings etc on the basis of date of their substantive appointment. Therefore inter se seniority of the employees of Avas Vikas Sansthan who were absorbed in other authorities. 4. Corresponding designation of post in the authorities in which they were absorbed. Ms. Shobha, learned counsel appearing for the daily wagers submitted that some of the daily wagers were declared qualified but kept in the waiting list for non-availability of sanctioned vacant posts. According to her, the High Court has rightly appreciated the facts and circumstances of the present controversy issued appropriate directions for absorption and that the balance of equity lies in their favour in view of the fact that the respondents have successfully cleared the exemption for regular appointment and had to remain in the waiting list on the pretext that no vacant sanctioned post is available. It was also submitted that the appellants have absorbed/adjusted numerous employees of the AVS but few of them including the respondents have been left on the pretext that they were not the regular appointed employees. Concluding her arguments, she submitted that they are also entitled for similar treatment being duly selected employees of the AVS. It is also relevant to mention that the employees were not appointed against any project and the termination order was passed due to financial inviability of the AVS and not because of some fault of respondent No.1. We have carefully considered the lengthy submissions made by learned counsel appearing for both the parties. We have also perused all the pleadings, annexures as well as the judgments of both the Single Judge and the Division Bench of the Rajasthan High Court In our opinion, the submissions made by learned senior counsel for the AVS merit acceptance and stand to reason in the peculiar facts and circumstances of the case. Though the arguments of Dr. Rajeev Dhawan and Mr. Aruneshwar Gupta, learned counsel appearing for the employees are attractive on the first blush, yet on a careful reconsideration of the same, it has no merits. In our view, after the liquidation of the AVS due to any reason unless such liquidation was malafide, there exists no right on the employees of such liquidated society for reemployment. In the present case, the Rajasthan Government did formulate a scheme to absorb the employees of the society into various other organizations with various terms and conditions to which the respondent employees agreed. There is no allegation in the writ petition that the employees were coerced/forced/unduly influenced to submit the undertaking. Therefore, at a later stage it is unfair to take claims of service conditions other than the ones that are stipulated and accepted earlier. In the case of Rajendra v. State of Rajasthan, (1999) 2 SCC 317 and S.M. Nilajkar v. Telecom District Manager, (2003) 4 SCC 27 where a project has been shut down due to want of funds the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. This finding is applicable in the present matter and therefore the finding of the High Court is not fair to common conscience and also that the same will act as a disincentive to the state to float such schemes in future thereby reducing the employment opportunities of many. POWER TO ABOLISH CIVIL POSTS It is settled law that the power to abolish any civil post is inherent in every sovereign government and such abolition will not entail any right on the person holding the abolished post the right to reemployment or to hold the same post. In the present case, the State Government was benevolent enough to float a scheme to absorb such employees whose posts were abolished. Therefore, in our opinion, the arguments advanced by counsel for the respondents with regard to unfairness meted out to the employees of Avas Vikas Sansthan hold no water. With regard to 604 employees of the AVS, it was argued that the State of Rajasthan had no legal obligation to offer alternative employment to the erstwhile employees of the AVS. But the State of Rajasthan in all fairness did frame a scheme and offered employment in other local bodies of the government. Thus, the terms and conditions of such alternative employment cannot be challenged. We are of the opinion, that the decision of the High Court granting relief of reemployment with pay protection, seniority and pension is erroneous. We, therefore, direct the State of Rajasthan to strictly adhere to and implement its decision to offer employment in other local bodies in letter and spirit. We further make it clear that all the erstwhile employees, if not already employed, should be employed in the local bodies as per the scheme formulated by the Government of Rajasthan in a war footing. PAY PROTECTION On the question of Pay Protection claimed by the respondents, it is seen from the Cabinet decision of 18.05.1999 that "no pay protection should be granted to the employees". The same was conveyed by the Rajasthan Housing Board vide letter dated 01.06.1999. This decision was taken after considering the views of the Finance Department. So the undertaking by the employees when they were absorbed into other local bodies had the same stipulation. This being so, such claim for pay protection, at this late stage, cannot be made. Thus, considering the categorical condition that the employees will not be given any pay protection, and moreover due to the absence of any legal right for pay protection to the employees of the AVS, such claims, in our opinion, cannot be sought for. With regard to the claim of the respondents for counting services rendered in the AVS, the Cabinet decision of 18.05.1999 specifically states that "the benefit of past service is not to be counted for any purpose". The same was conveyed by the Rajasthan Housing Board letter dated 01.06.1999. Therefore the undertaking by the employees when they were absorbed into other local bodies had the same stipulation; therefore at this late stage such claim for counting services rendered in the AVS for the pension and other retiral benefits, in our opinion, cannot be made. Since the employees of the AVS are not treated as government servants, they are not entitled to claim the benefit of Government Order dated 25.01.1995, which is specifically applicable only to government employees and the benefit of the 5th Pay Commission Report also stands inapplicable as this was not a claim that was sought by the respondents at any stage in any court that had entertained this matter. Also the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 will not apply as such to these employees of the AVS as they clearly do not fall within the definition of Surplus Personnel as defined in the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969. As regards the question of whether Rajasthan Housing Board can be considered 'State' under Article 12 of the Constitution, no serious arguments were made by either counsel for the parties and, therefore, we are not expressing any opinion on the same and decide the other issues on the basis of the arguments advanced. RIGHTS OF DAILY WAGERS With regard to the appointment of 46 daily wage employees after the dissolution of the Society, we hold that, in the facts and circumstances of this case there is no right on the part of any employee to be reemployed. Also daily wage employees cannot, by any stretch of imagination, be put on par with regular employees under any law prevalent as of date. The finding of the Division Bench that they can be treated on par with regular employees and be given various reliefs is wrong and erroneous under law. Therefore, we are not granting any relief to the daily wage employees as their claim is not justified under law. However, the Government of Rajasthan may sympathetically consider absorption of these employees in the vacancy available if any in future by giving them preference to other new applicants in any of their local bodies etc. subject to the following conditions: 1. The employees will be entitled to salary/wages from the date of their re-employment and shall not claim for any past period; 2. The employees will not be entitled to pay protection, benefit of GO dated 25.01.1992, 5th Pay Commission and the service rendered by the employees will not be considered for pension and/or other retrial benefits; 3. The appointment of Degree holder/Diploma holder Engineers shall be on the post of Junior Engineer on the minimum scale of pay; 4. The appointment of employees of Administrative Department would be on the post of Junior Clerk on the minimum scale of pay; 5. The appointment would be subject to suitability and physical fitness; 6. The alternative employment would be granted subject to availability of vacancy preferably within a period of 3 months. If they are absorbed in future the same will be treated as a fresh employment and employees/appointees will be governed by the rules and regulations of the absorbing Department if they are found suitable. POWER TO ABOLISH POSTS AS A MEASURE OF ECONOMY: It is well settled that the power to abolish a post which may result in the holder thereof ceasing to be a Government Servant has got to be recognized. The measure of economy and the need for streamlining the administration to make it more efficient may induce any State Government to make alterations in the staffing pattern of the civil services necessitating either the increase or the decrease in the number of posts or abolish the post. In such an event, a Department which was abolished or abandoned wholly or partially for want of funds, the Court cannot, by a writ of mandamus, direct the employer to continue employing such employees as have been dislodged. In the instant case, the State of Rajasthan has framed a scheme and offered alternative employment in the other local bodies as a Welfare State on humanitarian grounds. As already noticed, the employees of the AVS have accepted alternative employment on terms and conditions of the local bodies and having filed a solemn statement by way of affidavit that they will not claim continuity of service by protection of seniority etc. nor will they challenge the terms of such employment and shall also withdraw the writ petition filed by them. They cannot now go around and say that the judgment of the Division Bench should be given effect to. In our view, they are estopped from claiming the benefits and challenging the terms and conditions of the fresh employment. The employees have no right to resile from the affidavits filed before the High Court. We have searched in vain in order to see as to whether there is any material to show that the settlement was intended to frustrate the order passed by the High Court. At no point of time, the employees raised any dispute as regards the fairness of the settlement. Having obtained the benefit, it was not open to them to turn down without justifiable reasons to contend that the settlement was not fair and they should be given pay protection, counting of service for retiral benefits and placing the employees on par in the receiving Department. The cabinet decision of not granting pay protection was taken after taking into consideration the views of the Finance Department as it has huge financial burden on the local bodies offering re- employment after relaxing their own recruitment rules. In our view, the aforesaid categorical condition that the employees would not be entitled to pay protection and in the absence of any legal right of pay protection and fresh employment consequent upon on fresh appointment on humanitarian grounds, the decision of the High Court to grant protection of pay is unsustainable and liable to be interfered with. Dr. Rajeev Dhawan, learned senior counsel for the respondents, cited many decisions. Those cases, in our view, is distinguishable on facts and on law. In those cases, the High Court has directed protection of pay on the facts and circumstances as can be seen from a perusal of the same. The cabinet decision dated 18.05.1999 specifically decided that their period of earlier service shall not be valid for any purpose. This was specifically conveyed by the State Government to the Rajasthan Housing Board vide letter dated 01.06.1999 and also the letter of the State Government dated 26.02.2000 to the various local bodies. It is stated that one of the terms of re-employment would be that earlier service tenure shall not be considered for any purpose. Furthermore, under the provisions of the AVS Employees Service Regulation, 1993, the employees of the AVS were entitled to provident fund. Rule 14 provide as under:- "An employee of Sansthan shall be required to subscribe to the Contributory Provident Fund in accordance with such Rules as may be prescribed by the Board of Management." The employees of the AVS were having the benefit of contributing provident fund and were not entitled to any other pensionary/retiral benefits. The employees have withdrawn provident fund including the employer's contribution after termination of service from the AVS. It is thus crystal clear that the services rendered by the employees with AVS cannot be counted for the purpose of pension and other retiral benefits since such benefits were not available to them even in their parent organization and it was a specific condition of fresh employment that their past services with AVS will not be considered for any purpose. Even in A.I. Railway Parcel & Goods Porters Union vs. Union of India & Ors, (2003) 11 SCC 590 at 603 page 34 one of us was a member (Dr. AR. Lakshmanan, J} while giving various directions in the matter of regularisation of contract labour, this Court did not direct that the services rendered by the contract labourers with the contractor would be counted for the purpose of grant of retiral benefits by the principal employer. The recommendations of the 5th Pay Commission is applicable only to Government Servants and as such the employees of AVS who are not government employees are not entitled to 5th Pay Commission even in the writ petition filed by the organisation there was no prayer for grant of benefit of 5th Pay Commission. Thus, the High Court has erred in directing that the benefit of recommendations of 5th Pay Commission shall be given to the employees of the AVS on notional basis. We make it clear that the employees would be governed by the terms and conditions of the local bodies where they have been re-employed. At the time of hearing, a submission under the heading doubts of financial bona fides was made. It is submitted that the said plea is without any pleading in the writ petition. There is no pleading either on facts or in the grounds in the writ petition that the averments contained in the note dated 09.03.1999 and 18.05.1999 to the effect that the AVS has no capital base or reserve capital and has huge financial outstanding is incorrect. It is also not in dispute that the employees of the AVS could not be paid salaries of December, 1998 that amounted to about more than Rs.2 crores nor the writ petitioners/respondent employees have argued either before the Single Judge or before the Division Bench of the High Court that the liquidation of the AVS was mala fide and or extraneous consideration. So also there is no averment in the writ petition as regards the constitution of the AVS or the work of the AVS being transferred to the AVS. As a matter of fact, the AVS was incorporated under the Companies Act in the year 1996 and the AVS has majority share holding in AVS in the absence of any other pleading and contention raised before the High Court such submission on facts cannot at all be countenanced before this Court in the present proceedings. Likewise, the submission made by learned counsel appearing for the employees that the State has gone back on its decision and they have coerced the employees to agree to certain conditions cannot at all be countenanced. FAIRNESS IN ACTION: In our opinion, the State of Rajasthan has acted fairly and benevolently though the State has no constitutional and legal obligation to offer alternative employment to the employees of the AVS upon abolition of posts. Consequent to the liquidation of the AVS itself, it had framed a scheme to adjust the employees in other local bodies by relaxing the rules of such bodies and terms and conditions were fixed without financial economic compulsions of the State. The present case is one of liquidation of an organisation and consequent abolition of post in the said organisation. There is also no pleading that the conditions contained in the undertaking are contrary to Section 23 of the Contract Act or violative of Article 14 of the Constitution or inconsistent with the directive principles of state policy. The Central Inland Waterways case (supra) and Delhi Transport Corpn. Case (supra) relied on by these employees, in our view, have no application of the present case and is distinguishable on facts and law. Those cases relate to a term in the employment that even services of a permanent employee can be terminated on 3 months' notice without assigning any reason and such condition was specifically assailed therein. However, the present case relates to providing alternative employment to the employees of an organisation that is liquidated and posts have been abolished. In such circumstances, this Court has held in a number of cases that the employees have no right to seek re- employment in any other organisation. So also, there has been no challenge in any of the case decided by the High Court to the terms and conditions of undertaking that they were unfair, arbitrary and are contrary to public policy and as such violative of Section 23 of the Contract Act or Article 14 of the Constitution of India or any directive principles of state policy. The question of legitimate expectation has also not been raised at any stage and as such cannot be agitated before us in this court The reliance on the provisions of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 is wholly misconceived in as much as the said rule apply only to "surplus personnel" who were "appointed to various services or posts in connection with the affairs of the state" in terms of Rule 2 of the said Rules. Surplus personnel have been defined in Rule 3(1) as follows: "Surplus Personnel" or "Surplus Employee" means the Government servant to whom the Rajasthan Services Rules, 1951 apply and who are declared surplus by the government or by the appointing authority, under directions of the government, on their being rendered surplus to the requirements of a particular department of the government due to the reduction of posts or abolition of offices therein as measures of economy or on administrative grounds but in whose case the Government decides not to terminate their services but to retain them in service by absorption on other posts." A bare perusal of the aforesaid Rule clearly demonstrates that the rules are applicable only to the Government servants to whom Rajasthan Service Rules, 1951 apply. The employees of Avas Vikas Sansthan are not government servants nor Rajasthan Service Rules, 1951 were applicable to them and as such the provisions of Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 are not applicable in the present case. Further submissions of the learned counsel that the employees must be posted on the posts earlier held by them is without any merit since these employees had no right to claim adjustments to other local bodies. The Cabinet decision dated 18.05. 1999 have categorically stated as under: "All these appointments should be made to the lowest posts and engineers should be appointed only on the post of Junior Engineers and Employees of Administrative Departments should be appointed only on the post of Junior Clerk." So also all these employees have given undertaking not to raise any dispute in the matter. Thus this contention is untenable and is liable to be rejected. For the foregoing reasons, the impugned judgments of the High Court are set aside and we hold that all the civil appeals filed by the Rajasthan Housing Board, the AVS and the State of Rajasthan are allowed. The Civil Appeals filed by the employees stand dismissed. No costs. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5338 OF 2004 State of Rajasthan . . Appellant (s) Versus Radha Krishan Karwashra & Ors. .. Respondent (s) WITH CIVIL APPEAL NOS. 5340-41/2004 ORDER It was submitted by Mr. Badridas Sharma, learned counsel for the appellants, that the above appeals are of an entirely different type in which the respondent had challenged the order dated 25.04.1998 of the Avas Vikas Sansthan and by that letter/order, it was pointed out that 10 employees including Mr. Radha Krishan Karwashra had not accepted to join and do the alternative work offered to them and, therefore, those persons were treated as no more in the service of the Avas Vikas Sansthan. That the order of 25.04.1998 was not at all related to dismissal of service of employees as a result of dissolution of the Society. It was submitted that the writ petitions challenging the said order dated 25.04.1998 are still pending in the High Court at Jaipur in writ petition Nos. 5370/1998 and 5383/1998. Since this fact was pointed out by Mr. Badridas Sharma during the time of hearing of these appeals, we do not consider the merits of the claim made in this appeal. In view of this, the above appeals are delinked from the batch of appeals in Civil Appeal Nos. 5302/2004 etc. etc. and disposed of accordingly. Both parties are at liberty to pursue the pending writ petitions before the High Court in accordance with law. No costs.

How far deductions are allowable under rule 9(a) of the Kerala General Sales Tax Rules, 1963 ("the Rules" hereinafter) for trade discounts? -The Assessing Authority shall not reject the appellants' claim for exemption of the amounts of trade discount solely on the ground that the discount amounts were not shown in the sale invoices.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2516-2517 OF 2012 (Arising out of S.L.P. (Civil) Nos. 26102-26103 of 2010) M/s IFB Industries Ltd. .....Appellant Versus State of Kerala .....Respondent AND CIVIL APPEAL NOS. 2521-2522 OF 2012 (Arising out of S.L.P. (Civil) Nos. 6861-6862 of 2011) The India Cements Ltd. ...Appellant Versus The Assistant Commissioner & Ors. ...Respondents JUDGMENT Aftab Alam,J. 1. Leave granted in both the Special Leave Petitions. 2 2. How far deductions are allowable under rule 9(a) of the Kerala General Sales Tax Rules, 1963 ("the Rules" hereinafter) for trade discounts? 3. A division bench of the Kerala High Court has held that unless the discount was shown in the invoice itself, it would not qualify for deduction and further that any discount that was given by means of credit note issued subsequent to the sale of the article was in reality an incentive and not trade discount eligible for exemption under rule 9(a) of the Rules. The decision was rendered somewhat gratuitously in the case of M/s IFB Industries Ltd., (the appellant in the appeals arising from SLP (Civil) Nos. 26102-03 of 2010) but it is the India Cements Ltd., the appellant in the other set of appeals (arising from SLP (Civil) Nos. 6861-62 of 2011), that got badly hit by the decision and its claim for deduction of many kinds of trade discounts was rejected summarily and even without an opportunity of any effective hearing to it right from the stage of assessment up to the High Court. But to put the matter in order, we must see how the issue developed before reaching this Court and for that we need to first advert to the case of M/s IFB Industries Ltd. 4. M/s IFB Industries Ltd. is a manufacturer of home appliances. It has a scheme of trade discount for its dealers under which the dealer, on achieving a pre-set sale target gets certain discount on the price for which it purchased 3 the articles from the manufacturer, the appellant. As the discount is subject to achieving the sale target the dealer would naturally qualify for it in the later part of the financial year/assessment period, that is to say, long after the sales took place between the appellant and its dealer. For the sales taking place between the appellant and its dealer after the sale target is achieved, the dealer would of course get the articles on the discounted price but for the sales that took place before the sale target was achieved, the appellant would issue credit notes in favour of the dealer. The Assessing Authority, in principle, accepted the appellant's claim for deduction of the amount of discount given by it to its dealers through credit notes under rule 9(a) of the Rules and it was only a dispute over computation that took the matter to the High Court and the High Court held that the discount in question was not trade discount at all and it was not eligible for deduction in terms of rule 9(a). 5. The case of the appellant (M/s IFB Industries Ltd.) relates to assessment periods 2001-02 and 2002-03. Dealing with the assessment periods 2001-02, the Assistant Commissioner (Assessment), Commercial Taxes, (the Assessing Authority) in its order dated January 27, 2006 observed that the dealer had given discount to the tune of Rs.58,15,485/- and 4 as the discount was allowable in ordinary course of business, that turnover was allowed as exempted. 6. In making the computation, however, the Assessing Authority started with the figure of `Taxable turnover as per account (Home appliances) Vth Schedule Items' that was Rs.11,62,36,424.23. He then added to it the amounts of (i) Turnover under AMC, (ii) Sales return, (iii) Stock transfer, (iv) Second sale, (v) Tax collected and (vi) Scheme Discount amounting to Rs.58,15,485/- and arrived at the figure of `total turnover proposed' that came to Rs.14,27,69,607/-. From the total turnover, he then deducted the amounts of (i) AMC, (ii) Sales return, (iii) Second sales, (iv) Tax Collected and (v) Scheme Discount being the sum of Rs.58,15,485/- and, thus, finally arrived at the figure of Rs.11,95,56,460/- as the `taxable turnover proposed'. 7. The Assessing Authority passed a similar order for the assessment period 2002-03 as well. 8. The appellant had objection to the computation made by the Assessing Authority. It contended that though in principle allowing deduction for the trade discount the Assessing Authority actually denied any deduction by subtracting the amount of trade discount only after first adding it to the turnover. In the computation made by the Assessing Authority the amount of 5 trade discount, thus, got neutralized and the appellant did not actually get any deduction of the trade discount from its turnover. 9. Before proceeding further, it needs to be understood that the appellant's objection would have any basis only in case it is shown that the original figure of Rs.11,62,36,424.23 taken by the Assessing Authority as `Taxable turnover' was inclusive of the amount of the scheme discount being the sum of Rs.58,15,485/-. For, unless the amount of scheme discount was a factor of `Taxable turnover' there would be no question of deducting it from taxable turnover. Only in case the appellant could show that the figure of Rs.11,62,36,424.23 also included the amount of Rs.58,15,485/- as the trade discount, there would be any question of deducting it from the larger figure. 10. Be that as it may, the appellant preferred appeals against the Assessment Order (Sales Tax Appeal Nos. 219 & 220 of 2006) in which it also took the objection that the computation made by the Assessing Authority by first adding up the amount of trade discount and only then deducting it from the turnover denied it the exemption of trade discount which the Assessing Authority had himself allowed in the earlier part of his order. It is significant to note, however, that in the appeal also it was never 6 stated that the figure of Rs.14,27,69,607/- forming the basis of the computation included the amount of trade discount of Rs.58,15,485/-. 11. The Deputy Commissioner (Appeals) III Ernakulam, (the Appellate Authority) seems to have accepted the case of the appellant and while disposing of its appeals by order dated April 28, 2006 observed that in effect the appellant's claim was disallowed even though it was allowed in the order of the Assessing Authority. He, accordingly, directed the Assessing Authority to verify whether it was a computation mistake and to modify the order accordingly. 12. Against the order passed by the Appellate Authority, the Revenue preferred appeals (T.A. Nos. 429 & 430 of 2006/C.O. 67 & 68 of 2006) before the Kerala Sales Tax Appellate Tribunal and the Tribunal by its order dated February 28, 2007 allowed the Revenue's appeals holding that since there was no assessment on trade discount, the direction of the Assessing Authority to verify whether there was a mistake in this computation was without any basis. 13. The appellant made a Rectification application but it was rejected by the Tribunal by order dated August 29, 2008. 7 14. Against the order passed by the Sales Tax Appellate Tribunal, the appellant went to the High Court in ST Revision Nos. 396 & 397/2008. The appellant, safe in the belief that the Assessing Authority had in principle accepted its claim for deduction of the trade discount from the taxable turnover, confined its revision to the computation made by the Assessing Authority. The High Court, nevertheless, went into the basic question whether the discount under the scheme of the appellant at all qualified for deduction under rule 9(a) of the Rules. In a brief order dated June 26, 2009 that does not refer to any earlier precedents of this Court or even of the Kerala High Court, the High Court observed that from a plain reading of rule 9(a) it appeared that what is allowable as discount in the computation of taxable turnover is the trade discount given in the bills. According to the High Court, what is insisted in the rule is that the purchaser should have paid the price charged, less the discount. And this certainly meant that the discount should be shown in the original invoice and tax should be charged only on the net amount exclusive of discount so that the buyer gets the deduction towards discount. 15. On the appellant's claim of deduction of their trade discount from the taxable turnover, the High Court made the following observation: - 8 "Petitioner is a manufacturer engaged in supply of goods in wholesale to distributors and dealers. Sales are therefore first sales and discount if any given can only be trade margin to dealers. If tax is not to be charged on the dealer margin, then discount should be given in the invoice itself. If the petitioner has made sales in this way, then necessarily deduction should have been claimed in the monthly return itself as the taxable turnover does not cover discount/trade margin given in the invoice. On the other hand, in the Tribunals order, what is referred to as scheme discount which is nothing but incentives given by manufacturers, and wholesalers to dealers, may be for seasonal sales or may be for annual sales. Such incentives are normally given by the credit note at the end of the season or at the end of the year. These incentives given through credit notes are outside the scope of discount covered by Rule 9(a) of the KGST Rules." 16. Observing thus, the High Court found and held that the assessment in the case of the appellant had not been properly made. It, accordingly, set aside the orders passed by the Revenue authorities and remitted the case to the Assessing Authority for passing fresh assessment orders in light of its order and after examining the quarterly returns and the annual returns submitted by the appellant. 17. The appellant has brought the matter to this Court making the grievance that though the order of the High Court is an order of remand, for all intent and purposes it puts an end to its claim of deduction of trade discount from its taxable turnover. 9 18. Shortly after the case of M/s IFB Industries Ltd., came the case of Godrej and Boyce Mfg. Co. Ltd. and in an equally brief order dated November 4, 2009 a bench of the Kerala High Court took the same view on the question of deductibility of trade discounts as in the case of M/s IFB Industries Ltd. The High Court observed that in order to be eligible for deduction in terms of rule 9(a) of the Rules the discount must be granted in the invoices itself. According to the High Court, the rule stipulates that in order to qualify for deduction it should be proved that the purchaser had paid the sale price less amount of discount allowed. This presupposed that the deduction available is only trade discount allowed in invoices and not on credit notes given later. 19. By the time the case of the India Cement Ltd. (appellant in the appeals arising from SLP(C) Nos. 6861-6862 of 2011) came up for assessment for the assessment periods 2003-04 and 2004-05 the decision of the High Court in M/s IFB Industries Ltd. was firmly before the Revenue authorities. The Assessing Authority, therefore, turned down the claim of the appellant, the India Cement Ltd., for exemption of different kinds of discount, namely, special discount, annual discount, turnover discount, target discount etc. given by means of credit notes and aggregating to the large sum of Rs.25,55,83,751.82. The Assessing Authority referred to the High Court 10 decision in M/s IFB Industries Ltd. and rejected the appellant's claim for deduction of the aforesaid amount from their taxable turnover holding that, discounts given through credit notes were nothing but incentives and did not come under rule 9(a) of the Rules. 20. The appellant challenged the assessment orders before the High Court in Writ Petitions (WP(C) Nos. 34989 & 38517 of 2010). A single judge of the High Court declined to entertain the writ petitions filed directly against the assessment orders and by order dated January 18, 2011 dismissed the writ petitions leaving it open to the appellant to seek their remedies before the statutory authorities. 21. Against the order of the single judge the appellant filed intra-court appeals (W.A. Nos. 173 & 177 of 2011). The division bench agreed that since the appellant was confronted with an order of the division bench of the High Court, it would be pointless to relegate it to the statutory authorities. It referred to its orders passed in the cases of M/s IFB Industries Ltd. and Godrej and Boyce Mfg. Co. It also noted that against its decision in M/s IFB Industries Ltd. a SLP was filed which was admitted by this Court. It also referred to the decisions of this Court and of the Kerala High Court relied upon by the appellant in support of the contentions that a discount in order to 11 qualify for deduction under rule 9(a) need not necessarily be shown in the invoice itself and may also be given by means of credit notes. It, however, declined to reconsider its order in M/s IFB Industries Ltd. and by order dated February 8, 2011 dismissed the appeals observing as follows: - "We feel that appellant's remedy is to challenge the decision of this Court relied on by the Assessing Officer in disallowing claim of deduction of discount before the Supreme Court. Consequently, following our above two decision, we uphold the assessment disallowing discount on credit notes. These Writ Appeals are, accordingly, dismissed on merit leaving it open to the appellant to approach the Supreme Court, if they have any grievance against this judgment." 22. In the aforesaid circumstances, the appellant is before this Court making the grievance that its claim stands rejected practically unheard and without any considerations of the earlier precedents on the point relied upon by it in support of its claim. 23. In order to clearly understand the kinds of discount that are exempted in terms of rule 9(a) we may usefully refer to the definition of `turnover' under Section 2(xxvii) of the Kerala General Sales Tax Act, 1963. The main body of the definition is as follows: - "(xxvii) "turnover" means the aggregate amount for which goods are either bought or sold, supplied or distributed by a dealer, either directly or through another, on his own account or on account of others, whether for cash or for deferred payment or other valuable consideration." It is followed by several explanations. Explanation 2(ii) is as follows: - 12 "Explanation 2 - Subject to such conditions and restrictions, if any, as may be prescribed in this behalf,- (i) xxx (ii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover." (emphasis added) 24. It is, thus, to be seen that the very definition of "turnover" recognises discounts other than cash discount and provides that those other discounts too like the cash discount shall not be included in the turn over. 25. Rule 9(a) provides as follows - "9. Determination of taxable turnover - In determining the taxable turnover, the amounts specified in the following clauses shall subject to the conditions specified therein, be deducted from the total turnover of the dealer: - (a) All amounts allowed as discount, provided that such discount is allowed in accordance with the regular practice in the trade and provided also that the accounts show that the purchaser has paid only the sum originally charged less the discount." (emphasis added) 26. It is significant to note that the rule does not speak of invoices but stipulates that the discount must be shown in the accounts. On a plain reading of the provision it is clear that the exemption is allowable subject to 13 two conditions; first, the discount is given in accordance with the regular practice in the trade and secondly, the accounts should show that the purchaser had paid only the sum originally charged less the discount. We find nothing in rule 9(a) to read it in the restrictive manner to mean that a discount in order to qualify for exemption under its provision must be shown in the invoice itself. 27. We, therefore, find it difficult to sustain the view taken by the Kerala High Court in the orders impugned before us. 28. We are fortified in our view on the basis of some earlier decisions of this Court and some High Courts, including the Kerala High Court. 29. In Deputy Commissioner of Sales Tax (Law) Board of Revenue (Taxes) v. M/s Advani Oorlikon (P) Ltd., (1980) 1 SCC 360, this Court pointed out that cash discounts and trade discounts are wholly distinct and separate concepts and are not to be confused with one another. Advani Oorlikon was a case under the Central Sales Tax Act and section 2(h) of the Act defined the expression `sale price' to mean `the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount...'. It is to be noted that though the Central Sales Tax Act mentioned only cash discount as being deductible from sale price, this Court 14 nevertheless held that any trade discount must also be similarly deducted for determining sale price of goods. In paragraphs 5 and 6 of the judgment the Court observed and held as follows: - "5. At the outset, it is appropriate that we set forth the two relevant definitions contained in the Central Sales Tax Act. Section 2(j) defines "turnover" to mean "the aggregate of the sale prices received and receivable by him (the dealer) in respect of sales of any goods in the course of inter-State trade or commerce...". And Section 2(h) of the Act defines the expression "sale price" to mean "the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade...". It is true that a deduction on account of cash discount is alone specifically contemplated from the sale consideration in the definition of "sale price" by Section 2(h), and there is no doubt that cash discount cannot be confused with trade discount. The two concepts are wholly distinct and separate. Cash discount is allowed when the purchaser makes payment promptly or within the period of credit allowed. It is a discount granted in consideration of expeditious payment. A trade discount is a deduction from the catalogue price of goods allowed by wholesalers to retailers engaged in the trade. The allowance enables the retailer to sell the goods at the catalogue price and yet make a reasonable margin of profit after taking into account his business expense. The outward invoice sent by a wholesale dealer to a retailer shows the catalogue price and against that a deduction of the trade discount is shown. The net amount is the sale price, and it is that net amount which is entered in the books of the respective parties as the amount reliable. Orient paper Mills Ltd. v. State of Orissa, (1975) 35 STC 84: 1974 Tax LR 2224 (Ori. HC) 6. Under the Central Sales Tax Act, the sale price which enters into the computation of the turnover is the consideration for which the goods are sold by the assessee. In a case where trade discount is allowed on the catalogue price, the sale price is the amount determined after deducting the trade discount. The trade 15 discount does not enter into the composition of the sale price, but exists apart from and outside it and prior to it. It is immaterial that the definition of "sale price" in Section 2(h) of the Act does not expressly provide for the deduction of trade discount from the sale price. Indeed, having regard to the circumstance that the sale price is arrived at after deducting the trade discount, no question arises of deducting from the sale price any sum by way of trade discount." 30. The decision of this Court in Deputy Commissioner of Sales Tax(Law) Board of Revenue (Taxes), Ernakulam v. Motor Industries Co, Ernakulam, (1983) 2 SCC 108, is on rule 9(a) of the Kerala General Sales Tax Rules and the discount admissible to exemption under that provision. It may, however, be clarified that in terms of the rule, as it stood at that time, exemption was allowable on trade discount given not only in accordance with the regular practice in the trade but also in accordance with the terms of the contract or agreement entered into a particular case. In Motor Industries Co. the claim for exemption was on the basis of the agreement entered into between the dealer and its purchaser, the retailer. But that is of no significance as the issue in the case was in regard to the nature of discount admissible to exemption under rule 9(a). This Court, upholding the decision of the Kerala High Court allowing exemption to the dealer, held and observed as follows:- "We shall first deal with the claim made in respect of "service discount". Under clause (a) of Rule 9 of the Rules all amounts allowed as discount where such discount is allowed in accordance with the regular practice of the dealer or is in accordance with the terms of contract or agreement entered into 16 in a particular case have to be deducted from the total turnover in determining the taxable turnover provided the accounts of the assessee show that the purchaser has paid only the sum originally charged less the discount. In the instant case the "service discount" in respect of which the deduction was claimed by the assessee was the additional trade discount allowed by it to its main distributors (purchasers) namely the T.V.S. group of companies which constitute a prestigious group of commercial concerns over and above the normal trade discount in consideration of the extra benefit derived by the assessee by reason of the marketing of its goods through them. This additional trade discount is allowed in accordance with the trade agreement subject to periodical variation depending upon the cost structure and changes in market conditions. It is not disputed that there were such agreements between the assessee and the purchasers and the accounts of the assessee truly reflected the actual discount allowed to the purchasers. What is however urged by the department is that the said additional discount allowed by the assessee could not strictly be termed as discount as it was in lieu of services rendered by its main distributors by way of popularisation of the sales and consumption of the products sold by the assessee. We find it difficult to accept the submission made on behalf of the department. Rule 9(a) says that all amounts allowed as discount either in accordance with regular practice or in accordance with agreement would be deductible from the total turnover provided they are duly supported by the entries in the accounts of the assessee. Ordinarily any concession shown in the price of goods for any commercial reason would be a trade discount which can legitimately be claimed as a deduction under clause (a) of Rule 9 of the Rules. Such a concession is usually allowed by a manufacturer or a wholesale dealer in favour of another dealer with the object of improving prospects of his own business. It is common experience that when goods are marketed through reputed companies, firms or other individual dealers the demand for such goods increases and correspondingly the business of the manufacturer or the wholesaler would become more and more prosperous and its capacity to withstand competition from other manufacturers or other dealers dealing in similar goods would also improve. Hence any concession in 17 price shown in such circumstances by way of an additional incentive with a view to promote one's own trade does qualify for deduction as a trade discount. It cannot be termed as a service charge as is attempted to be termed in this case. In fact in this case apart from buying the products of the assessee, no other service is being rendered by the T.V.S. group of companies to the assessee. In the circumstances the additional discount or "service discount" as it is called in this case is no other than the discount referred to in Rule 9(a) of the Rules." 31. In Union of India and Others v. Bombay Tyres International (P) Ltd., (2005) 3 SCC 787, in a very brief order this Court very succinctly described `trade discount' and held it to be deductible from the sale price: "(1) Trade discounts - Discounts allowed in the trade (by whatever name such discount is described) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreements or under terms of sale or by established practice, the allowance and the nature of the discount being known at or prior to the removal of the goods. Such trade discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price." (emphasis added) 32. A bench of the Andhra Pradesh High Court in Godavari Fertilizers and Chemicals Ltd. v. Commissioner of Commercial Taxes, (2004) 138 STC 133, examined a number of earlier decisions on this point and came to the conclusion that a discount given by means of credit notes issued subsequent to the sale is as much a trade discount admissible to deduction in determining the turnover of a dealer. 18 33. A bench of the Kerala High Court in Kalpana Lamps and Components Ltd. v. State of Kerala, (2006) 143 STC 666, in paragraphs 4 and 5 of the judgment observed and held as follows: - "4. According to us, in the present case, the Appellate Tribunal dismissed the appeal merely on the ground that the circumstances under which the special discount has been granted to the customer (sic). Learned counsel for the petitioner submits that the petitioner was not able to convince the Tribunal because no opportunity was given by both the authorities, viz., the assessing authority and the appellate authority. They rejected the case of the petitioner merely on the ground that the books of accounts were not produced. Hence, the petitioner prayed for an opportunity to explain the circumstances under which the special discount was granted. 5. Before parting with the case, we may state that so far as the special discount is concerned, all that the authorities have to look into whether as a matter of fact, the petitioner received only the sum originally charged less the discount. It is the look out of the traders to see that the trade increase and it is for that purpose the trade discount is given. Hence, a person may not be able to clearly prove as to why the special discount was given. But if there has been a consistent practice of giving special discount, that has to be accepted by the assessing authority." 34. On the basis of the discussions made above and in light of the earlier decisions of the Court, we are unable to sustain the orders of the Kerala High Court coming under appeal. The impugned orders in both the appeals are set aside. The cases of the appellants for the respective assessment periods are 19 remitted to the Assessing Authority with a direction to make assessments and pass fresh orders in accordance with law and in light of this judgment. The Assessing Authority shall not reject the appellants' claim for exemption of the amounts of trade discount solely on the ground that the discount amounts were not shown in the sale invoices. 35. In the result the appeals are allowed but with no orders as to cost. .................................J. (Aftab Alam) .................................J. (Anil R. Dave) New Delhi; February 27, 2012.

"It is settled law that vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies is a denial being violative of Articles 14 and 16(1) of the Constitution of India."

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2511 OF 2012 (Arising out of SLP (C) No. 16289 of 2011) Smt. K. Lakshmi ...Appellant Versus State of Kerala & Ors. ...Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. Recruitment to public services often gets embroiled in legal complications and resultant litigation consequently delaying the process of filling up of the vacancies, a feature hardly conducive to public interest. What is disturbing is that recruitment process for appointment to the District Judiciary in the States is also not immune to this phenomenon no matter recruitments are made in consultation with the High Court on the administrative side 1 and at times monitored by them. The present appeal that arises out of an order passed by the High Court of Kerala is one such case where the recruitment process for the post of District and Sessions Judges in the Kerala State Higher Judicial Service was the subject-matter of multiple rounds of litigation. The genesis of the present lis lies in a notification issued by the High Court of Kerala for appointment to the six vacancies in the cadre of District and Sessions Judges by direct recruitment from the Bar. Notification dated 16th April, 2007 inviting applications against those vacancies was followed by a written examination conducted in October 2007 in which as against 960 candidates who applied, only 443 candidates actually took the written examination conducted between 27th to 29th October, 2007. Surprisingly enough only seven candidates qualified in the written examination by securing the minimum qualifying marks specified in paragraph 4 of the recruitment Notification. Out of the seven, one belonged to Scheduled Castes category, three to OBCs and the remaining candidates were from the open merit category. 2 3. Looking to the number of candidates who had qualified for interview, the Recruitment Committee comprising five senior-most Judges of the High Court was of the view that sufficient number of candidates may not be available to fill up the notified vacancies. The Committee, therefore, resolved to award 20 marks by way of moderation in all the three papers of the written examination to all the candidates who appeared for the examination so that a larger number of candidates qualified in the written examination and became eligible for consideration. Merit list after giving such benefit was prepared and approved by the Recruitment Committee. The result was that against the seven candidates who had previously qualified, 45 candidates became eligible for the viva-voce examination. Two of these candidates namely, Muhammed Raees M and Minu Mathews were, however, excluded from the selection process on the ground that they had secured employment during the interregnum. The exclusion was successfully challenged by the said candidates who were then permitted to participate in the viva-voce examination as well. 3 4. Interviews for the eligible candidates were held in December 2008 and based on the merit so determined, the High Court published a final selection list containing the names of 29 candidates. The select list was prepared by excluding candidates who were less than 35 years of age or more than 45 years as on 1st January, 2007. The age bar, it is noteworthy, was introduced by the amending Kerala Sate Higher Judicial Services Rules which amendment came in June 2008 i.e. after the selection process has commenced. Those who were excluded from consideration on the basis of the amended rules challenged their exclusion in Writ Petition(C) No.2021 of 2009 and connected petitions which were allowed by a Division Bench of the High Court of Kerala with a direction that the selection process be conducted in accordance with the rules as the same were on the date of the issue of the notification inviting applications from the eligible candidates. A revised merit list was accordingly issued comprising 45 names. 5. The Recruitment Committee considered the revised merit list and found that two open category candidates and one reserved category candidate who stood appointed shall 4 have to be elbowed out of service in view of the revised select list. The Committee appears to have suggested a solution that would avoid such a situation. The High Court on the basis of the recommendations made by the Committee recommended to the Government to invoke its power under Rule 39 of the K.S. & S.S.R. to protect the said three candidates whose services were otherwise very satisfactory. The recommendation suggested utilisation of four vacancies that had occurred subsequent to the issue of the recruitment Notification in addition to the six already notified. The recommendation sent to the State Government accordingly contained names of nine candidates while one was kept unfilled in view of the pendency of Special Leave Petition (C) No.4203 of 2009. With the dismissal of the Special Leave Petition, the said slot was recommended to be filled up by appointing Muhammed Raees M. against 10th vacancy. Writ Petition (C) Nos.16206 of 2010 and 16207 of 2010 were then filed by C. Jayachandran and Minu Mathews whereby the award of grace marks by way of moderation to other three candidates included in the said list was challenged. The 5 said petitions were finally allowed by the High Court of Kerala by its order dated 13th September, 2010 holding that the award of grace marks by way of moderation was not legally permissible and was contrary to the decision of this Court in Umesh Chandra Shukla v. Union of India and Ors. (1985) 3 SCC 721. The High Court observed: ".................................................................................................... The present two writ petitioners were among the seven successful candidates in the written examination who secured the cut off marks in each of the papers as stipulated by the notification. In view of the decision of the selection committee to award moderation though the writ petitioners still continued to be the successful candidates in the written examination, many more candidates artificially became eligible for being called for the viva-voce resulting in a heavier competition for the petitioners at the second stage of selection process, i.e. viva-voce. In the above extracted passage of the judgment (1985) 3 SCC 721, the Supreme Court held that the candidates who secured the minimum qualifying marks in the written examination acquire the right to be included in the list of the candidates to be called for viva-voce examination and such a right cannot be defeated by enlarging the said list including certain other candidates who are otherwise ineligible." 6. The High Court accordingly declared the grant of moderation marks and all steps taken pursuant to the said decision bad in law. The High Court observed: "In the result, we are of the opinion that the decision of the Selection Committee to grant moderation is unsustainable in law. Therefore, all further steps pursuant to the said decision would be unsustainable. The resultant situation is that only the seven 6 candidates who were initially found eligible on the basis of their having secured the cut off marks in the examination should have been subjected to the viva- voce examination and an appropriate decision regarding their suitability to fill up the originally advertised 6 posts should have been taken by the 1st respondent in accordance with law." 7. In compliance with the above direction, the merit list was revised again and the appellant placed at serial no.6 in the open merit category. Since there were only three vacancies in the said category which had been allotted to three candidates with higher merit than the appellant, the appellant could not be appointed. Out of three vacancies meant for reserved category candidates one was filled up while the remaining two vacancies meant for OBC candidates remained unfilled for want of candidates in the said category. 8. It was in the above backdrop that Writ Petition No. 20683 of 2009 filed by the appellant to challenge the selection process came up for hearing before a Single Bench of the High Court of Kerala and was dismissed by a short order stating that since the appellant was not one of the candidates who figured in the list of seven successful candidates qualified for consideration there was no question 7 of issuing any direction for appointment. The learned Single Judge observed: "................The selection now stands narrowed down to only seven persons. The petitioners in these writ petitions are not among them. That being so, there is no point in considering these writ petitions on merits. Accordingly, they are closed leaving open the other contentions in these writ petitions, which have not been considered by the Division Bench in Jayachandran's case (supra) to be raised and agitated appropriately, if occasion arises in future." 9. Aggrieved by the above order the appellant filed a writ appeal before the Division Bench of the High Court which too failed and was dismissed by the High Court. The High Court was of the view that the contention urged in support of the challenge to the selection process did not have any foundation in the pleadings of the parties and even assuming that the challenge on the grounds urged before it was maintainable the fact that the writ petition had itself been filed nearly two years from the date of the issue of the notification was sufficient for the High Court to decline interference. The present appeal questions the correctness of the above order before us. 10. Appearing for the appellant Mr. P.U. Dinesh, learned counsel strenuously argued that the High Court had failed 8 to consider the effect of the order passed by it in Writ Petition No.16206 of 2010 in Jayachandran's case. It was contended that the High Court had by the said decision clearly directed that ten vacancies had to be filled up from out of seven candidates found eligible in terms of the select list. Heavy reliance was, in support of that contention, placed by the learned counsel upon the following passage appearing in the said judgment: "However, in view of the subsequent decision of the 1st respondent to fill up 10 posts, the 1st respondent may now proceed with the selection from out of the 7 abovementioned candidates in accordance with law by recasting the select list. In view of the fact that some of the 10 posts sought to be filled up are required to be filled up by candidates belonging to reserved categories, if on such an exercise any of the vacancies of the abovementioned 10 posts sought to be filled up cannot be filled up for lack of a suitable candidate, the respondents should now resort to the procedure contemplated under Rule 15(a) of the K.S. & S.S.R. It goes without saying that it should be open to the respondents to prescribe such cut off marks as the minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances. Both the writ petitions are allowed as above." 11. In as much as the High Court had remained oblivious of the above direction it had according to the learned counsel fallen in a palpable error that deserved to be corrected. Alternatively, it was contended that even if the number of vacancies to be filled up were restricted to only 9 six the appellant was entitled to an appointment against one out of the two unfilled vacancies meant for the reserved category candidates having regard to the provisions of the Rules which according to the learned counsel entitled him to such an appointment by diversion of the unfilled vacancies to the open merit category. 12. Mr. P.P. Rao, learned counsel for the respondents, on the other hand, argued that the High Court was perfectly justified in dismissing the writ petition filed by the appellant as none of the grounds which were set out in the writ petition were found to have any merit. He drew our attention to the writ petition filed by the appellant and the grounds on which the selection process was challenged to contend that the challenge urged in support of the present appeal was never pressed into service or urged before the High Court. It was not, therefore, argued Mr. Rao, open to the appellant to make out a new case in his favour before this Court on which the High Court had no occasion to express any opinion. It was further contended that reliance upon the order passed by the High Court in Jayachandran's case was misplaced for the direction issued by the High 10 Court was limited to filling up of the vacancies "in accordance with law". This implied that no appointment against the available vacancies could be made if the same were not legally permissible. It was argued that subsequent to the judgment of the High Court in Jayachandran's case, the High Court had passed a Full Court resolution by which the recommendations made earlier to the Government for filling up of the four vacancies that had occurred after issue of the recruitment notification by resort to Rule 39 of the K.S. & S.S.R. Rules was withdrawn. Copy of the said resolution in the consequent letter issued by the High Court was also placed on record by the learned counsel, in support of the submission that after the quashing of the moderation in Jayachandran's case there was no room left for filling up of the four additional vacancies by taking resort to Rule 39 of the Rules mentioned above. That was so, for the obvious reason, that the candidates for whose benefit the said recommendation had been made had gone out of service as a consequence of the judgment of the High Court in Jayachandran's case. There was, therefore, neither any need nor any occasion for the Government to 11 invoke this power under Rule 39 of the Rules as recommended by the High Court. The net result then was that the number of vacancies required to be filled up continued to be only six, three out of which were to go to open merit candidates while the remaining would go to the candidates in the reserved category. 13. The short question that falls for determination in the above backdrop is whether the number of vacancies to be filled up was six as claimed by the High Court or ten as claimed by the appellant. While it is not disputed that the initial notification confined itself to filling up of six vacancies only, confusion relating to the said number arose on account of the High Court recommending invocation of Rule 39 by the Government to avoid a situation where the candidates who had already been appointed pursuant to the selection process had to go out of service on account of the Court directing preparation of a revised merit list on the basis of the unamended Rules. It is common ground that the vacancies that had arisen after the issue of the Notification were sought to be filled up only with the solitary purpose of somehow saving the three candidates 12 from ouster who were bound to lose their jobs on account of the re-casting of the merit list. All that the High Court intended to recommend to the Government was that four vacancies that were available in the cadre, though the same had arisen after the issue of the Recruitment Notification, could be utilised by the Government if it invoked its power under Rule 39. The candidates facing ouster could then be continued as an exception to the general rule. It is also beyond dispute that the said recommendations could not have been accepted once the award of additional marks by way of moderation was struck down by the High Court in Jayachandran's case. The inevitable consequence flowing from that judgment was that anyone who had found place in the merit list only because of the benefit of moderation would have to lose that place and go out of the list. Once that happened the question of retaining the services of the three candidates by invocation of powers vested in the Government under Rule 39 did not arise. The High Court was in the light of the subsequent development justified in recalling the recommendations made by it which in turn had the effect of 13 limiting the number of vacancies to those originally notified. Mr. Rao was, therefore, right in contending that the proposed utilisation of four vacancies did not ipso facto add to the number of already notified. The addition was contingent upon the Government agreeing to exercise its power under Rules 39. Since the Government did not and could not possibly exercise the said power as a result of the quashing of the marks awarded by way of moderation the proposed addition of the vacancies to the number already notified became clearly infructuous. The High Court could and had rightly recalled the recommendations in the light of the said subsequent development. 14. There is another aspect to which we may advert at this stage and that relates to the question whether the Government could at all exercise the powers vested in it under Rule 39 in a manner that would have had the effect of depriving candidates otherwise eligible for appointment against the said vacancies from competing for the same. Rule 39 reads as under: "Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving 14 in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner a may appear to the Government to be just and equitable: Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17.12.1958." 15. The legal position regarding the power of the Government to fill up vacancies that are not notified is settled by several decisions of this Court. Mr. Rao relied upon some of those decisions to which we shall briefly refer. In Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637, this Court declared that the vacancies could not be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies would amount to denial of equal opportunity to eligible candidates violative of Article 14 and 16(1) of the Constitution of India. This Court observed: "It is settled law that vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies is a denial being violative of Articles 14 and 16(1) of the Constitution of India." 15 16. In Hoshiar Singh v. State of Haryana 1993 Supp 4) SCC 377, also this Court held that appointment to an additional post would deprive candidates who were not eligible for appointment to the post on the last date of submission of the applications mentioned in the advertisement and who became eligible for appointment thereafter or the opportunity of being considered for such appointment. This Court observed: "The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts." 17. In State of Haryana v. Subhash Chander Marwaha (1974) 3 SCC 220, this Court held that the Government had no constraint to make appointments either because there are vacancies or because a list of candidates has been prepared and is in existence. So, also this Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47, UPSC v. Gaurav Dwivedi (1999) 5 SCC 180, All India SC & ST Employees' Association v. A. Arthur Jeen (2001) 6 SCC 380 and Food Corporation of India 16 v. Bhanu Lodh (2005) 3 SCC 618, held that mere inclusion of a name in the select list for appointment does not create a right to appointment even against existing vacancies and the State has no legal duty to fill up all or any of the vacancies. 18. In the light of the above pronouncements the power vested in the Government under Rule 39 (supra) could not have been invoked for filling up the vacancies which had not been advertised and which had occurred after the issue of the initial advertisement much less could that be done for purposes of protecting the service of someone who had found a place in the merit list on account of additional marks given to him and who was bound to lose that place by reasons of the judgment of the Court. 19. The upshot of the above discussion is that the number of vacancies notified for recruitment remained limited to six and did not get increased to ten as the condition precedent for such increase had failed not only because no decision was taken by the Government to invoke its power under Rule 39 but also because even if a decision had been taken the same would have had no effect in the face of the 17 judgement in Jayachandran's case. Besides the power vested in the Government was not exercisable so as to utilise subsequent vacancies for the purpose of saving someone who had no legitimate right to continue even after being removed from the merit list. 20. In the light of the above discussion paragraph 33 of the judgment in Jayachandran's case does not come to the rescue of the appellant's to support his claim for appointment. We fail to see any legal or equitable right in favour of the appellant to claim one of the four vacancies that were proposed to be added in terms of the recommendation made by the High Court, even assuming that the appellant could urge before us a point which had never been urged before the High Court. 21. That brings us to the second limb of the submission of Mr. Dinesh that even if the number of vacancies is taken to be limited to six, he was entitled to be appointed against one of the unfilled vacancies meant for reserved category candidates. That submission, in our opinion, needs notice only to be rejected. Firstly, because there is no foundation laid in the writ petition filed by the appellant nor was any 18 such point ever raised before the High Court. The result is that the unfilled vacancies meant for reserved category candidates and those that have become available in the merit category after the issue of the initial recruitment notification have already been notified. The appellant, it is not in dispute, has participated in the fresh selection process initiated by the High Court like many others who were eligible to apply against the vacancies in the open merit and the reserved category. It is, therefore, neither proper nor feasible at this stage for this Court to interfere with the ongoing selection process. The appellant it goes without saying would get a fair chance like every other eligible candidate to compete for an appointment. In the result this appeal fails and is hereby dismissed but in the circumstances without any orders as to costs. ............................................J. (T.S. THAKUR) .............................................J. (GYAN SUDHA MISRA) New Delhi, February 27, 2012 19

Practice and Procedure - Miscellaneous application, in finally disposed of writ petition - Maintainability of - Direction of court in a writ petition to post employees in equivalent scale - Non-implementation of order by the employer - Employee's application seeking clarification of the order - Held: It is not open to court to reopen a proceeding in finally disposed of writ petition in respect of matter having fresh cause of action - But it is permissible for a party to seek clarification of final order - The application in the instant case was for seeking clarification of final order and was not having any fresh cause of action - Hence, maintainable - Constitution of India, 1950 - Article 226 - Service Law - Pay. After merger of a Public Sector Undertaking, of which the appellants were employees, with respondent-Airlines, the employees of the Undertaking were observed in the respondent-Airlines in Short Hand Operation Department (SHOD). The absorbed employees demanded integration with the existing employees of the respondent-Airlines. The same was opposed by the existing employees of the respondent-Airlines. In the meetings it was decided that the absorbed employees were required to complete their training and obtain licence to fly the respondent-Airlines Aircraft in three attempts. Appellants were informed that since they failed in two attempts, their training was being terminated and they would revert to SHOD. They were later required to appear for an interview for selection to the post of Assistant Manager (Flight Safety). Appellants questioned the same, by filing a writ petition on the ground that they were entitled to three chances for obtaining licence In the alternative they had a right to be automatically placed in the equivalent ground job post with protection of pay and allowances. Despite the filing of writ petition, appellants joined the post of Asstt. Manager (Flight Safety) offered to them in terms of letter dated April 23, 2003. Single Judge of High Court disposed of the petition inter alia holding that the appellants were entitled to a post in an equivalent scale. One of the appellants, on the basis of the order of High Court, requested the respondent-Airlines to post him in equivalent scale. Respondent-Airlines informed him that he had been placed in proper scale and his basic pay was duly protected. Appellants filed miscellaneous application seeking a direction to the respondent, to place him in a ground job in equivalent pay scale. He stated that he had been asked to join in the pay scale of Rs.5675-8025 while on the date he was offered the post on ground duty, he was in the pay scale of Rs.6200-8025. Single Judge disposed of the application with the direction to absorb the appellants in the pay scale of Rs.6200-8025 and if such scale was not available in ground duty, they were to be placed in the next higher grade. Intra-Court appeal by the respondent was allowed. Hence, the present appeal.

Allowing the appeal, the Court HELD: 1.1. It is trite that a party is not entitled to seek a review of a judgment merely for the purpose of rehearing and a fresh decision of the case. When the proceedings stand terminated by final disposal of the writ petition, it is not open to the Court to reopen the proceedings by means of miscellaneous application in respect of a matter which provides fresh cause of action. If this principle is not followed, there would be confusion and chaos and the finality of proceedings would cease to have any meaning. At the same time, there is no prohibition on a party applying for clarification, if the order is not clear and the party against whom it has been made is trying to take advantage because the order is couched in ambiguous or equivocal words. [Para 16] [790-C-E] 1.2. Keeping in view the terms of final order passed by Single Judge of High Court, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the legal position viz. on termination of proceedings by final disposal of writ petition, it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in which he was placed at the time when letter dated 23rd April, 2003, was issued. It is manifest that in direction No. (ii), the Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued.' The respondent was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear, it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, the respondent could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non- implementation. Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition. In the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. [Para 18] [790-G; 790-A-F] State of Uttar Pradesh vs Brahm Datt Sharma & Anr. (1987) 2 SCC 179, Referred to Case Law Reference: (1987) 2 SCC 179 Referred to Para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6903 of 2008. From the final Judgment dated 21.11.2005 of the High Court of Delhi at New Delhi in L.P.A. No. 1135 and 1136 of 2005. Nisha Bagchi and Meenakshi Arora for the Appellants. R.S. Suri for the Respondent. , , , 2008(15 )SCALE620 , REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6903 OF 2008 (Arising out of S.L.P. (C) No. 4420 of 2006) K.A. ANSARI & ANR. -- APPELLANT (S) VERSUS INDIAN AIRLINES LTD. -- RESPONDENT (S) JUDGMENT D.K. JAIN, J.: Leave granted. 2. This appeal is directed against two common orders, dated 21st November, 2005, passed by the High Court of Delhi at New Delhi in L.P.A. Nos. 1135 and 1136 of 2005. By the impugned orders, the High Court has allowed the appeals, preferred by the Indian Airlines Limited, the sole 1 respondent in this appeal, against the order passed by a learned Single Judge of the High Court in the miscellaneous application filed by the first appellant herein, seeking clarification of the final judgment rendered by the learned Single Judge on 11th October, 2004. The Division Bench has held that after disposal of the writ petitions, miscellaneous application was not maintainable and, hence order dated 4th March, 2005 on the said application was without jurisdiction. 3. In order to appreciate the controversy, it would be necessary to recapitulate the background facts, stated in detail by the learned Single Judge. These are as follows: The appellants were appointed as Field Officers by the Government of India, Ministry of Agriculture, Directorate of Agricultural Aviation in the years 1978 and 1979. On 24th July, 1987, they were transferred under the administrative control of the Ministry of Civil Aviation. M/s Vayudoot Limited (for short `Vayudoot'), a public sector undertaking, was incorporated in the year 1981. In the year 1988, the assets of 2 the Directorate of Agricultural Aviation were transferred to Vayudoot. As a result thereof, the services of the officers of Directorate of Civil Aviation were placed at the disposal of Vayudoot, on deputation. The deputation was on same terms and conditions including pay and allowances as were being received by the appellants under the Ministry of Civil Aviation. 4. On 8th April, 1988, posts of the appellants were re- designated as Operation Officers. Again on 9th May, 1989, the designation of the appellants was changed to Assistant Manager. Appellant No.1 - K.P.S. Rathore, was selected as a trainee pilot on 1st January, 1989 and was confirmed as such with effect from 1st November, 1990. Appellant No.2 - K.A. Ansari, was appointed as a junior pilot on 1st July, 1990 and was confirmed as such with effect from 1st October, 1990. 5. It appears that in the year 1993, the Government of India took a policy decision to merge Vayudoot with Indian Airlines. On 24th May, 1994, Ministry of Civil Aviation issued an order conveying the decision of the Government 3 that the process of absorption of the Vayudoot employees shall commence by 31st June, 1994 with certain relaxations/benefits to them on joining the new organisation. The benefits included protection of basic pay drawn by the employees of Vayudoot at the time of their absorption in Indian Airlines. 6. It seems that the employees of Vayudoot, who were absorbed in the Indian Airlines in a separately created `Short Haul Operations Department', referred to as `SHOD' by the learned Single Judge, demanded integration with the existing employees of Indian Airlines. They claimed that they had a right to be promoted to the next corresponding post with the existing employees of Indian Airlines by including the service rendered by them under Vayudoot. As expected, the integration was opposed by the existing employees of the Indian Airlines. Negotiations were held and in the meeting held on 10th March, 1988, one of the decisions' taken was as under: "PILOT 4 1. SHOD pilots will undergo training in IA aircraft and on getting type endorsement will be placed at the bottom of the seniority of First Officers (Co-Pilots). However, their past services will be counted for the purpose of pay protection and other financial benefit. Their future growth will be on the basis of the line of seniority. The IA will take necessary action to initiate their training within a period of one month. 2. Pilots who fail to obtain licence endorsement as per IA rules will be retained in SHOD. Such pilots may be provided appropriate ground job. Their basic pay and allowances in such cases will be protected. The proposal is based on the basis of the policy adopted by the company while phasing out turboprop aircraft in 1982. 3. Four executive Pilot will remain in SHOD and will be sent on deputation to Alliance Air. After acquiring training and getting Boeing endorsement they will be appointed as Co-Pilots. Their pay and allowances and status will be protected." 7. Thereafter, some more decisions were taken, with which we are not directly concerned in this appeal except to note that in order to find an amicable solution to the demands/grievances of the employees of Indian Airlines and SHOD, in the meetings held on 21st April, 1998 and 5 16th March, 2000, it was decided that the SHOD employees will have to complete their training and obtain the licence to fly an Indian Airlines' aircraft in three attempts. Accordingly, vide communication dated 6th September, 2001 the appellants were informed that since they had failed in two attempts, their training was being terminated and they would revert to SHOD with immediate effect. The appellants protested, inter alia, on the ground that they were entitled to three opportunities, instead of two, to obtain the requisite licence. However, on 15th November, 2002, the appellants were directed to appear for an interview for selection to the post of Assistant Manager (Flight Safety). The said action on the part of the Indian Airlines was questioned by the appellants by preferring writ petitions in the High Court. Their plea was that as per the agreed arrangement, they had to be given three chances to obtain the licence endorsement and in the alternative they had a right to be automatically inducted in a ground job post of equivalent status with protection of pay and allowances. Notwithstanding the filing of the writ petitions, 6 the appellants joined on the post of Assistant Manager (Flight Safety), offered to them in terms of the letter issued by the respondent on 23rd April, 2003, which contained the following note: "Please note that you are being given this last and final, opportunity to accept our offer of appointment as Asstt. Manager (Flight Safety) with protection of basic pay. If you fail to report for Medical Examination by the stipulated date as mentioned above, it will be presumed that you are not interested in the alternate employment as a rehabilitation measure offered by the Management and the Management would be constrained to terminate your services." 8. Be that as it may, ultimately the writ petitions preferred by the appellants were disposed of by the learned Single Judge on 11th October, 2004 in the following terms: "Petitioners on failing 3 tests are undoubtedly entitled to be automatically placed for a ground job with benefit of past service. This grounding cannot be at a post lower in the scale held by the petitioners. Since no material has been placed to show what was the scale of post of Assistant Manager (Flight Safety), writ petitions are disposed of with the following directions:- (i) Petitioners would be entitled to benefit of past service right from inception when they joined 7 service under Government of India for purposes of all terminal benefits and in-service benefits linked to length of service. (ii) Petitioners would be entitled to be posted to a post in equivalent scale held by them when letter dated 23.4.2003 was issued. (iii) Petitioners would be entitled to basic pay protection. (iv) If as a result of direction (ii) above, petitioners are to be put in a post of higher grade, arrears of pay and allowances would be paid within 6 weeks from today. (v) Petitioners would be entitled (only) to the allowances for the ground post in which they are to be posted." 9. On 25th November, 2004, appellant - K.A. Ansari, communicated the said order to the Chairman-cum- Managing Director of the Indian Airlines, requesting for his posting to a post in the equivalent scale, i.e. Deputy Manager, in terms of direction (ii), extracted above, with consequential relief. In response thereto, the Indian Airlines informed him that he had been placed in the proper scale and his basic pay was duly protected in terms of the aforenoted direction (iii) and service rendered in Vayudoot 8 shall also be taken into consideration for the purpose of gratuity, provident fund, loans, advances and medical facilities etc. 10. Not being fully satisfied with the response of the Indian Airlines, the first appellant moved a miscellaneous application before the High Court, seeking a direction to the respondent to place him in a ground job in the equivalent pay scale of Deputy Manager, as directed in the final order dated 11th October, 2004. In short the grievance of the applicant was that although on 23rd April, 2003, when Indian Airlines had asked him to join on the post of Assistant Manager (Flight Safety), he was in the grade of Rs.6200-175-6550-200-7500-225-7775-250-8025 but he had been placed in the pay scale of Rs.5675-175-6550-200- 7500-225-7775-250-8025. 11. After notice to the Indian Airlines, as noted earlier, the learned Single Judge disposed of the application vide order dated 4th March, 2005. Inter alia, observing that counsel for the Indian Airlines had not disputed that when letter dated 9 23rd April, 2003 was issued to the appellants they were in the grade of Rs.6200-175-6550-200-7500-225-7775-250- 8025, the learned Single Judge disposed of the application with the following directions to the Indian Airlines:- "It is not being in dispute that when letter dated 23.4.2003 was issued petitioner being a first officer was in the pay scale of Rs.6200- 175-6550-200-7500-225-7775-250-8025. Accordingly, petitioner on ground would have to be placed in the said scale. As this court understands the law to be, if the cadre of a person is changed he would be entitled to an equivalent pay scale and in the absence of an equivalent pay scale would be entitled to be placed in the next above scale. Scale in which the respondent seeks to place the petitioner is Rs.5675-175-6550-200-7500- 225-7775-250-8025. The fact that the upper limit of the two scales i.e., 6200-175-6550- 200-7500-225-7775-250-8025, and Rs.5675- 175-6550-200-7500-225-7775-250-8025 is the same is immaterial. Application for directions is accordingly disposed of directing Indian Airlines to, after grounding, place the petitioner in the pay scale held by the petitioner i.e., Rs.6200-175-6550- 200-7500-225-7775-250-8025. In no case the petitioner be placed in a scale lower to the scale aforesaid. However, it is clarified that on grounding, if pay scale of Rs.6200-175-6550- 175-6550-200-7500-225-7775-250-8025 is 10 not available, petitioner would have to be placed in the next higher grade." 12.Aggrieved thereby, the Indian Airlines filed intra-court appeal and as noted above, the Division Bench has reversed the said order. That is how the appellants have come up before us in this appeal. 13.We have heard learned counsel for the parties. 14. Ms. Nisha Bagchi, learned counsel appearing on behalf of the appellants submitted that the Division Bench of the High Court failed to appreciate that in the miscellaneous application, no new dispute requiring fresh adjudication had been raised. The relief claimed in the application was only in the nature of clarification to the extent that because of protection of the pay scales at the time of absorption in the Indian Airlines, the appellants were entitled for placement in an equivalent or higher pay scale. It was asserted that by way of clarification, learned Single Judge had merely reiterated and directed implementation of the 11 directions issued while disposing of the writ petitions. It was also pleaded that the main order dated 11th October, 2004, having attained finality, the respondent is otherwise bound to comply with the same. 15. Per contra, Mr. R.S. Suri, learned counsel appearing on behalf of the Indian Airlines, supporting the order of the Division Bench, submitted that when the proceedings stood terminated on final disposal of the writ petitions, it was not open to the learned Single Judge to reopen the proceedings on filing of the miscellaneous application by the appellant in respect of the same subject matter. 16. It is trite that a party is not entitled to seek a review of a judgment merely for the purpose of rehearing and a fresh decision of the case. It needs little emphasis that when the proceedings stand terminated by final disposal of the writ petition, it is not open to the Court to reopen the proceedings by means of miscellaneous application in respect of a matter which provides fresh cause of action. If this principle is not followed, there would be confusion and 12 chaos and the finality of proceedings would cease to have any meaning. (See: State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr.1 ). At the same time, there is no prohibition on a party applying for clarification, if the order is not clear and the party against whom it has been made is trying to take advantage because the order is couched in ambiguous or equivocal words. 17.Therefore, the question for consideration in the instant case is whether the miscellaneous application preferred by the first appellant could be said to be founded on a fresh cause of action? 18. Having bestowed our anxious consideration on the rival submissions, we are of the opinion that keeping in view the terms of final order dated 11th October, 2004, the miscellaneous application could not be said to be founded on a separate or fresh cause of action so as to fall foul of the aforenoted legal position viz. on termination of proceedings by final disposal of writ petition, it is not open 1 (1987) 2 SCC 179 13 to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided fresh cause of action. It is manifest that in direction No. (ii), the learned Single Judge had clearly directed that the writ petitioners would be entitled `to be posted to a post in equivalent scale held by them when the letter dated 23rd April, 2003 was issued.' The respondent - Indian Airlines was obliged to obey and implement the said direction. If they had any doubt or if the order was not clear; it was always open to them to approach the court for clarification of the said order. Without challenging the said direction or seeking clarification, Indian Airlines could not circumvent the same on any ground whatsoever. Difficulty in implementation of an order passed by the Court, howsoever, grave its effect may be, is no answer for its non- implementation. In our opinion, in the miscellaneous application, no fresh relief, on the basis of a new cause of action, had been sought. It was an application filed for pursuing and getting implemented the relief granted in the writ petition, namely, placement in appropriate grade in 14 which he was placed at the time when letter dated 23rd April, 2003, was issued. This was precisely done by the learned Single Judge vide his order dated 4th March, 2005. Without examining those factual aspects of the matter, in our judgment, the Division Bench was in error in holding that after the disposal of the writ petitions, miscellaneous application was not maintainable and the only remedy available to the appellant was to approach the authorities and if his interpretation was not acceptable to them, then he could file a fresh writ petition. 19. For the foregoing reasons, we allow the appeal and set aside the order of the Appellate Bench and restore the order passed by the learned Single Judge on 4th March, 2005, directing the respondent to implement the main order, dated 11th October, 2004. In the circumstances of the case, the parties shall bear their own costs. ................................................J. (D. K. JAIN) 15 .................................................J. (P. SATHASIVAM) NEW DELHI; NOVEMBER 28, 2008. 16