The respondents are stated to have coined the trade mark by joining the words, that is, “TAR” and “JET”. The meaning for “JET” is to spray but no answer for “TAR”. If we are to take the word “JET” to mean to spray then it is said to be descriptive of the goods. The goods are pesticides, insecticides etc. When there is no clear explanation to say it is a coined or invented word then it cannot be said to be an invented word. If it is not an invented word then the applicant/respondent herein cannot be said to be the proprietor of the mark.-Assuming the respondents to have adopted both the trade marks – TARGET and TARJET, but the licence is granted only for TARGET and not TARJET. The use of the trade mark “TARJET” could be only to trade upon the goodwill of the appellants. The adoption cannot therefore be said to be bonafide. 19. The appellants have been using the trade mark since the year 1984 whereas the respondents adopted the trade mark only since 2001. The rights of the earlier user ought to be protected. 20. For the reasons stated above, the appeal OA/39/2009/TM/AMD is allowed and the impugned order is set aside. There shall be no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD

Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018

(CIRCUIT SITTING AT AHMEDABAD)

OA/39/2009/TM/AMD

 MONDAY, THIS THE 25^th DAY OF JUNE, 2012

Hon’ble Ms.S. Usha                                                       …  Vice Chairman

Hon’ble Shri V. Ravi                                                      …  Technical Member

              

                                                                                     

M/s. Godrej Sara Lee Ltd.

Pirojshnagar, Eastern Express Highway,

Vikhroli,

Mumbai

MAHARASHTRA.                                                              … Appellant

(By Advocate:  Shri M.R. Nair)

Vs

1.         M/s. GSP Crop Science Pvt. Ltd.

404, Lalita Complex,

352/3, Rasala Road,

Navrangpura,

Ahmedabad,

GUJARAT.                                                             … Respondent No.1

2.         The Deputy Registrar of Trade Marks

            15/27, National Chambers

Ashram Road,

Ahmedabad-380009.                                         … Respondent No.2

                                   

                                              

  (By Advocate:  Shri Akshay Vakil)

ORDER (No.171/2012)

Hon’ble Ms.S. Usha, Vice-Chairman:

            Appeal arising out of the order dated 19.02.2009 passed by the Deputy Registrar of Trade Marks disallowing the opposition No.AMD-193048 and allowing application No.1249080 in Class 5 to proceed to registration under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the ‘Act’).

2.         The 1^st respondent herein filed an application for registration of the trade mark TARJET (a label mark) in Class 5 under No.1249080 on 12.11.2003 claiming user since 8.1.2001. The said application was advertised before acceptance in the Trade Marks Journal No.1323 dated 6.12.2004 at page 466 which was made available to the public on 7.3.2005. The appellants herein opposed the registration stating that their trade mark “JET” has become very popular among consumers and trade by virtue of long and continuous use. The respondent’s adoption is dishonest and it is calculated to pass off their goods as that of the appellants/opponents.

3.         The 1^st respondent filed their counter statement stating that they adopted and used the trade mark “TARJET” since 2001 in respect of pesticides, insecticides, disinfectants which are related to agriculture. They adopted the trade mark after conducting a market survey. The marks are different and also the goods.

4.         The learned Registrar held that the mark “TARJET” has no direct reference to the character and quality of goods and therefore does not fall within the ambit of Section 9 of the Act.  The appellant’s trade mark is “JET” and the respondent’s trade mark is “TARJET”. The respondent has coined the mark “TARJET” by adopting the different words. The class of customers and the goods are different hence rejected the objection under Section 11 of the Act.  The registration was granted under Section 12 of the Act as the respondents had proved bonafide concurrent use.

5.         The respondent before adopting the impugned trade mark conducted a market survey. The mark is coined and is not similar with the trade mark “JET”. The goods are different. The objection under Section 18 of the Act was therefore rejected. The opposition was therefore dismissed and the application was allowed to proceed to registration.

6.         Aggrieved by the said order, the appellant filed the instant appeal on the ground that they are engaged in the business of manufacturing and marketing of variety of goods including mosquito repellants in the form of mats, coils and liquids. The appellant is one of the largest manufacturers of mosquito repellants in India. The appellants JET brand is very popular amongst the customers and in the trade. The appellant is the registered proprietor of the trade mark JET.

7.         The appellant filed the appeal on the ground that the registration of the impugned trade mark would cause confusion among the consuming public. The Registrar wrongly held that the trade mark JET and TARJET are phonetically different. The Registrar erroneously held that the trade mark TARJET has no direct reference to the goods. The appellant’s mark is for household goods whereas the respondent’s mark is for agricultural products. The decisions were not considered by the Registrar. The Registrar failed to consider the fact that the appellants were prior in adoption and use.

8.         The respondent filed their counter statement stating that they honestly coined and bonafidely adopted the trade mark TARJET since 1.8.2001. After a market survey the respondents adopted the trade mark as there was no deceptively similar trade mark available in the market.  The respondent’s trade mark is distinctive and capable of being distinguished. Their trade mark has acquired very high reputation and goodwill in the market. They have spent huge amounts to advertise and popularize their goods bearing the said trade mark. Their sale turnover runs to several crores of rupees. The registration would not be in contravention of the provisions of the Act.

9.         We have heard Shri M.R. Nair, Counsel for the appellant and Shri Akshay Vakil, Counsel for the respondent on 9.4.2012.

10.       The learned Counsel for the appellant submitted that the appellant’s mark is “JET” and the respondent’s mark is “TARJET”. The appellants have been using the trade mark JET since 1984 whereas the respondents have adopted and used the trade mark TARJET since 2001 only to trade upon the appellant’s use and goodwill. The respondent has no reason for adopting the trade mark “TARJET”.  The reason given for JET is that it is a dictionary word which means spray but no explanation for the word TAR.

11.       The respondents though state that they made a market survey, no evidence has been produced before the Registrar. In fact the Registrar has considered and observed in the impugned order that a market survey was conducted but the respondent has not produced any evidence. There is no evidence to prove their statement of search conducted in the Trade Marks Registry.  The adoption is dishonest and therefore is not the proprietor of the trade mark.

12.       The Counsel then relied on an unreported judgment of the Bombay High Court in Miscellaneous Petition No.3 of 1992 – Marion Merrell Dow Inc., Petitioners Vs. Unichem Laboratories Ltd., T.R. Subramanian, R. Ravi, Respondents and submitted that if a person had copied somebody else’s mark cannot be said to be the proprietor of the trade mark, then even if it is a coined or invented word the applicants cannot seek registration under Section 18 of the Act. The Counsel pointed out to the invoices and submitted that the invoice is dated 8.8.2003 whereas the L.S.T. number is dated 20.9.2003 which only creates a doubt as to its veracity.  The application for change of company name was made on 1.9.2003 but the invoice dated 8.8.2003 is in the name of the changed name which is again not a valid evidence.

13.       The Counsel then relied on few judgments, namely -

(i)         1982 PTC 321 – Sharda Machinery Corporation, Delhi – Appellants Vs. R.S. Sewing Machine Co., Bassi Pathanan, Respondents

(ii)        1887 RPC Vo.IV.No.8  decided by Courts of Law in the United Kingdom, Chancery Division – The Sanitas Company, Plaintiff Vs. Condy, Defendant

(iii)             1980 RPC (9) 237 – In the Trade Marks Registry - DA VINCI Trade Mark

(iv)              1937 RPC Vol.LIV (7) – Chancery Division – Macleans Ld., Vs. J.W. Lightbown and Sons, Ld., and in the matter of a Trade Mark “MAC” No.458,654

(v)                1997 PTC (17) – Induss Food Products Equipments Ltd., Petitioner Vs. Rani Sati Ice-cream Pvt. Ltd., Respondents

(vi)              1996 PTC (16) – American Home Products Corpn., Wyeth Lab. Ltd., Petitioner Vs. Lupin Lab Ltd., Respondents

(vii)            2012 (49) PTC 330 (Del.) – Piruz Khambatta & anr., Plaintiffs Vs. Soex India Pvt. Ltd. & Ors., Defendants

14.       In reply, the Counsel for the respondent submitted that the goods are different, the trade channels are different and the quantity also differs, so the possibility of confusion does not arise. The Counsel then submitted that the marks are to be compared as a whole and relied on the judgment reported in 1982 (2) PTC 335 (SC) – F. Hoffimann La Roche and Co. Ltd., Appellants Vs. Geoffry Manners and Co. Pvt. Ltd., Respondents. The Counsel further submitted that the mark is not descriptive and therefore Section 9 of the Act is not applicable. The Counsel finally submitted that the impugned order was correct and prayed that the appeal be dismissed and the application be allowed to proceed to registration.

15.       We have considered the arguments of both the Counsel and have gone through the pleadings and documents.

16.       The respondent’s main contention was that the trade mark was a coined word and there was no similarity between the rival marks.  The respondents are stated to have coined the trade mark by joining the words, that is, “TAR” and “JET”.  The meaning for “JET” is to spray but no answer for “TAR”.  If we are to take the word “JET” to mean to spray then it is said to be descriptive of the goods. The goods are pesticides, insecticides etc.  When there is no clear explanation to say it is a coined or invented word then it cannot be said to be an invented word.  If it is not an invented word then the applicant/respondent herein cannot be said to be the proprietor of the mark.

17.       The burden of proving confusion is always upon the applicant for registration in an opposition proceedings. The applicant, that is, the respondent herein is to satisfy that the registration of the impugned trade mark will not cause any confusion. The applicant has not satisfied the same.

18.       As regards the invoices, the L.S.T. No. which is subsequent to the date of the invoice cannot be accepted to be a valid document to consider the use. The other issue is that the licence has been granted for the mark “TARGET”. We also see some of the invoices bear the trade mark TARGET. Assuming the respondents to have adopted both the trade marks – TARGET and TARJET, but the licence is granted only for TARGET and not TARJET.  The use of the trade mark “TARJET” could be only to trade upon the goodwill of the appellants.  The adoption cannot therefore be said to be bonafide.

19.       The appellants have been using the trade mark since the year 1984 whereas the respondents adopted the trade mark only since 2001. The rights of the earlier user ought to be protected.

20.       For the reasons stated above, the appeal OA/39/2009/TM/AMD is allowed and the impugned order is set aside.  There shall be no order as to costs.

(V. Ravi)                                                                                         (S. Usha)

Technical Member                                                                        Vice-Chairman

(This order is being published for present information and should not be taken as a certified copy issued by the Board.)

A lease-deed of the demised premises was executed by the respondent- State in favour of the appellants on 19th March, 1996 followed by a renewal of lease dated 17th July, 1998. The State Government vide order dated 15th December, 2000 cancelled the lease deed and proceeded to resume the demised premises which was informed to the appellants by the District Magistrate, Allahabad on 11th January, 2001. The objection preferred by the appellants was rejected on 24th August, 2001. The appellants preferred a writ petition against the order dated 15th December, 2000 passed by the State Government, the notice dated 11th January, 2001 and the order dated 24th August, 2001 passed by the District Magistrate, Allahabad which was dismissed but with the observation that the State Government is not entitled to take forcible possession though it may take possession of the demised premises in accordance with the procedure established by law. The appellants are aggrieved against the dismissal of the writ petition whereby the order of cancellation of lease deed was affirmed, whereas the State Government is aggrieved against the last portion of the order whereunder it was mentioned that the State Government is not entitled to take forcible possession though it may take possession in accordance with the procedure established by law.= For taking possession, the State Government is required to follow the law, if any, prescribed. In the absence of any specific law, the State Government may take possession by filing a suit. Under the Provisions of the Land Acquisition Act, 1894, if the State Government decides to acquire the property in accordance with the provisions of the said Act, no separate proceedings have to be taken for getting possession of the land. It may even invoke the urgency provisions contained in Section 17 of the said Act and the Collector may take possession of the land immediately after the publication of the notice under Section 9. In such a case, the person in possession of the land acquired would be dispossessed forthwith. However, if the Government proceeds under the terms of the Government Grants Act, 1895 then what procedure is to be followed. Section 3 of Government Grants Act, 1895, stipulates that the lease made by or on behalf of the Government to take effect according to their tenor – All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to any Section 2, shall be valid and take effect according to their tenor; any decree or direction of a Court of Law or any rule of law, statute or enactments of the Legislature, to the contrary. 18. In the case of The State of U.P. vs. Zahoor Ahmad and Another(supra), this Court held that the Section 3 of the Act declares the unfettered discretion of the Government to impose such conditions and limitation as it thinks fit, no matter what the general law of land be. From Clause 3(C) of the deed, it is clear that the State of U.P. while granting lease made it clear that if the demised premises are at any time required by the lessor for his or for any public purpose, he shall have the right to give one month’s clear notice to the lessee to remove any building standing at the time of the demised property and within two months’ of the receipt of the notice to take possession thereof on the expiry of that period subject to the condition that the lessor is willing to purchase the property on the demised premises, the lessee shall be paid for such amount as may be determined by the Secretary to the Government of U.P. in the Nagar Awas Department. 19. In the case in hand, the District Magistrate , Allahabad High Court issued a notice on 11th January, 2001 to the appellants intimating that the State Government had passed order on 15th December, 2000 cancelling lease deed and resuming possession of the disputed property as the same was required for public purpose. The appellants sent an application but instead of filing objections before the State Government represented before the Chief Minister of U.P. on 31st January, 2001 praying for revocation of order dated 15th December, 2000. Objection was filed before the District Magistrate, Allahabad who after consideration of the objection rejected the same by order dated 24th August, 2001 enclosing therein a cheque for rupees ten lakhs towards compensation for the building standing over the plot. The appellants refused to accept the cheques. The respondents thereafter dispossessed the appellants from the part of the land on 1st September, 2001. 20. Under Clause 3(C) of the lease deed, the respondent-State was permitted resumption of the land which required for its own use or for public purpose and after giving one month’s clear notice in writing is entitled to remove any building standing at the time on the demised premises and within two months of the receipt of the notice to take possession thereof subject to the condition that if the lessor is willing to purchase the building of the demised premises required to pay the lessee the amount for such building as may be determined by the Secretary to Government of U.P. in the Awas Department. In the case in hand such procedure was followed. Therefore, we are of the view that there is no other procedure or law required to be followed, as a special procedure for resumption of land has been laid down under the lease deed. As a special procedure for resumption of land is prescribed under the lease deed, the High Court was not correct in holding that the State Government cannot dispossess the appellants but can take possession according to the procedure adopted by any other law. The finding of the High Court to such extent is set aside but the rest portion of the judgment affirming the order of the State Government dated 15th December, 2000, the notice dated 11th January, 2001 and an order passed by the District Magistrate dated 24th August, 2001 is upheld. The appeal preferred by appellants Azim Ahmad Kazmi & Ors. is dismissed and the appeal preferred by the State of U.P. and Anr. stands disposed of with aforesaid observations. The interim order of stay is vacated. The State Government is allowed to take possession of the demised premises for extension of High Court building etc., as decided. However, the appellants are given three months time to hand over the possession of the land and building to the State and, if so necessary, the State Government will issue a fresh cheque for rupees ten lakhs in favour of the appellants, if earlier cheque has expired and not encashed. If the appellants fail to handover the possession of demised premises or create any third party interest in such case the State Government and the District Magistrate, Allahabad in particular will take forcible possession of the demised premises.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2006 OF 2003


AZIM AHMAD KAZMI AND ORS.               … APPELLANTS

                             VERSUS

 STATE OF U.P. & ANR.                        … RESPONDENTS


WITH

CIVIL APPEAL NO. 2007 OF 2003



                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA,J.


1.     These  appeals  have  been  preferred  against  the  judgment   dated
7.12.2001 passed by the Division Bench of the High Court  of  Judicature  at
Allahabad whereby the writ petition preferred by lessee – Azim  Ahmad  Kazmi
and Ors. (hereinafter referred to as “the appellants”)  was  dismissed  with
certain observations.
2.    A lease-deed of the demised premises was executed by  the  respondent-
State in favour of the appellants on 19th March, 1996 followed by a  renewal
of lease dated 17th July, 1998.  The State Government vide order dated  15th
December, 2000 cancelled the lease deed and proceeded to resume the  demised
premises which was informed to the appellants by  the  District  Magistrate,
Allahabad on 11th January, 2001.  The objection preferred by the  appellants
was rejected  on  24th  August,  2001.   The  appellants  preferred  a  writ
petition against the order dated 15th December, 2000  passed  by  the  State
Government, the notice dated 11th January, 2001 and  the  order  dated  24th
August,  2001  passed  by  the  District  Magistrate,  Allahabad  which  was
dismissed but  with  the  observation  that  the  State  Government  is  not
entitled to take forcible possession though it may take  possession  of  the
demised premises in accordance  with   the  procedure  established  by  law.
The appellants are aggrieved against the  dismissal  of  the  writ  petition
whereby the order of cancellation of lease deed was  affirmed,  whereas  the
State Government  is  aggrieved  against  the  last  portion  of  the  order
whereunder it was mentioned that the State Government  is  not  entitled  to
take forcible possession though it may take possession  in  accordance  with
the procedure established by law.
3.    The dispute relates to Plot No. 59, Civil  Station,  Allahabad  having
an area of 1 acre and 4272 sq. yards (9112 sq. yards or  7618  sq.  meters).
Initially, a lease of aforesaid plot was granted in  favour  of  one  Thomas
Crowby for a period of 50 years on 11th January, 1868 by the then  Secretary
of State for India in Council and it  was  signed  by  the  Commissioner  of
Allahabad  Division.     A  fresh  lease  was  executed  in  favour  of  his
successor for another period of 50 years on 12.4.1923 which was  to  operate
from 1.1.1918.   With  the  permission  of  the  Collector,  Allahabad,  the
successors of the lessee transferred their lease hold rights  in  favour  of
one Purshottam Das in  the year  1945.   According  to  appellants  on  31st
October,  1958,   the  legal   representative  of    said   Purshottam   Das
transferred the  lease-hold  rights  in  favour  of   appellant  no.  7-Smt.
Shakira Khatoon Kazmi,  appellant no. 6-  Smt.   Sabira  Khatoon  Kazmi  and
their mother-Smt. Maimoona Khatoon  Kazmi.     The  appellant  no.  1-  Azim
Ahmad Kazmi, appellant no. 5- Omar Ahmad  Kazmi,  appellant  no.  2-  Shamim
Ahmad Kazmi, appellant no. 3- Alim Ahmad Kazmi and  appellant  no.  4-  Maaz
Ahmad Kazmi are heirs of late  Smt.  Maimoona  Khatoon  Kazmi.   The  lease,
which had been granted on 12th April, 1923 expired on  31st  December,  1967
but the same was not renewed for a long period.      Subsequently,  a  fresh
lease deed was executed on behalf of Governor of Uttar Pradesh in favour  of
some of the appellants and their ancestors on 19th March, 1996 for a  period
of 30 years which was to operate  with  effect  from  1.1.1996.   This  deed
contained a clause that the lease deed may be  renewed  for  two  successive
terms of 30 years  each but the total period  shall  not  exceed   90  years
including the original term.    The period of  this  deed  expired  on  31st
December, 1997 and on 17th July,  1998  which  was  renewed  for  a  further
period of 30  years  w.e.f.  1st  January,  1998.   Subsequently  the  State
Government passed an order on 15th December, 2000 for cancelling  the  lease
deed and resuming the possession of the plot in  question.     The  District
Magistrate, Allahabad, thereafter gave a notice dated 11th January, 2001  to
the appellants intimating them that  the  State  Government  had  passed  an
order  dated  15th  December,  2000  cancelling  the  lease   and   resuming
possession of the plot in question as the same  was  required  for  a  pubic
purpose.   The notice further mentioned that the  appellants  should  remove
the structure standing on the plot failing which possession  will  be  taken
in accordance with clause 3(c) of the lease deed.   The appellants filed  an
objection against the notice before the  District  Magistrate  on  2.2.2001.
They further claimed to have sent an objection  to  the  Chief  Minister  of
Uttar Pradesh on 31.1.2001 praying for revocation of the order of the  State
Government  dated  15.12.2000.   The  District  Magistrate  considered   the
objection and rejected the same by an order dated 24.8.2001. A copy  of  the
aforesaid order along with cheques representing  the  compensation  for  the
building standing over the plot (cheques for total amount  of  Rs.10  lakhs)
were served upon the appellants.   The respondent-State tried to  dispossess
the lease on 1.9.2001 and their stand was that the possession of  open  land
was taken.   It was at that stage when the writ petition  was  filed  and  a
stay order was passed by High Court  on  2nd  September,  2001  staying  the
dispossession  of  the  appellants.   The  writ  petition  was  subsequently
dismissed on merit.
4.    Learned counsel appearing for the lessees  submitted  that  the  State
Government initially made a proposal for acquiring  disputed  plot  for  the
same purpose in accordance with the  Provisions  of  Land  Acquisition  Act,
1894. The District Magistrate,  Allahabad,  wrote  a  letter  to  the  State
Government on 29th October, 1998 that looking to  the  area  of   plot,  the
estimated amount of compensation, including  30%  solatium,  12%  additional
amount and interest, etc. could come to rupees  two  crores  and  sixty  two
lakhs.  The said proposal was not accepted by the State Government  and  was
rejected by order  dated  17th  July,  2000.    The  State  Government  took
possession of few other Nazul Lands in Allahabad under the Land  Acquisition
Act, 1894 wherein a good amount of compensation was  paid  to  the  lessees.
It was contended that if the State Government had taken a  recourse  of  the
Provisions of the Land Acquisition Act,  1894  for  acquiring  the  plot  in
question, the lessees would have got  sufficient  compensation  and  not  by
opting the said  mode  the  lessees  have  been  discriminated  against  and
consequently,   the impugned  order  of  the  State  Government  dated  15th
December, 2000 is liable to  be  set  aside.      In  the  past,  the  State
Government had not taken any recourse to resume  the  land  in  the  manner.
The State Government had taken over the possession of the  land  much  prior
to the completion of period of  lease.    The  order  passed  by  the  State
Government on 15th  December,  2000  for  cancellation  of    lease   and  a
resumption  of  possession  is  illegal  and  not  in  accordance  with  the
Government Grants Act, 1895.
5.    It was next submitted that the public purpose, if any,  existed  prior
to 17th July, 1998 when the lease was renewed and by renewal  of  the  lease
the State Government is  stopped  from  pleading  that  there  is  a  public
purpose.   By renewal of lease, the lessee legitimately expected  that  they
will remain in occupation for 30 years from  1st  January.  1998,  the  date
from which the lease was renewed.
6.    Learned counsel appearing on behalf of the respondent-State  submitted
that the existence of public purpose is not  a  new  development.    It  was
submitted that by letter dated 29th August, 1998,  the  District  Magistrate
informed the Special Secretary to the State Government,  he  had  given  the
estimate for acquiring  the  property  under  the  Provisions  of  the  Land
Acquisition Act, 1894.    In the  said  letter,  the  reference  of  earlier
letters including letter dated 2nd December, 1997 has been referred.   Those
letters shows that even before the renewal of the lease deed  in  favour  of
the lessees, taking over the possession of property  for  extension  of  the
Allahabad High Court and office of the Advocate-General, U.P. was  seriously
considered; it is wrong to suggest that the  requirement  of  the  land  for
public purpose was not in existence when the lease was renewed.
7.    It was contended on behalf of the respondent-State that the lease  has
been cancelled and an order to resumption of possession has been  passed  as
the plot in question is required for extension of the Allahabad  High  Court
as also for extension of the office of Advocate General,  U.P.     The  plot
is situated just in front of the gate of the High Court on the  Kanpur  Road
and, therefore, most suitable and ideal place  for  the  aforesaid  purpose.
Several courts-room and chambers for the judges  have  been  constructed  in
the past but there has been no addition of  office  space  with  the  result
that there is hardly any place to keep the records.  Even pending files  are
being kept by having a make shift and  temporary  arrangement  by  enclosing
the verandas.   Similarly, there is  an  acute  shortage  of  space  in  the
office of Advocate-General.  There is  no  place  at  all  where  the  State
counsel may sit and do the drafting work  or  for  keeping  the  files.  The
grounds for passing of the order,  namely,  extension of the High Court  and
extension of office of Advocate-General is undoubtedly a public purpose  and
the same has rightly not been challenged by the  learned  counsel  for   the
lessees.
8.    It was further contended that the State  Government  having  conferred
power under Clause 3 (C) of the lease deed, as  the  plot  in  question  was
required for public purpose, it was open to the  State  Government  to  take
possession of the land in question on expiry of the one month notice.
9.    The questions which requires consideration are (i)  whether the  order
passed by the State Government on 15th December, 2000  for  cancellation  of
lease and resumption of possession is legally  valid  and  (i)  whether  the
State  Government  can  dispossess  the  lessee  in  accordance   with   the
Government  Grants  Act,  1895  without   resorting   to   other   procedure
established by any other law.
10.   There is clear recital in the lease deed executed  in  favour  of  the
appellants by the Government of U.P. on 19th March, 1996 that  the  same  is
being done under the Government Grants Act, 1895.  Clause 3 (C) of the  deed
reads as follows:
           “3(C) That if the demised premises are at any time  required  by
           the lessor for his or for any public purpose he shall  have  the
           right to give one month’s clear notice in writing to the lessees
           to remove any building standing at  the  time  of  the   demised
           premises and within two months of the receipt of the  notice  to
           take possession thereof on the  expiry of  that  period  subject
           however to the condition  that  if  the  lessor  is  willing  to
           purchase the building on  the  demised  premises,   the  lessees
           shall  be  paid  for  such  building  such  amount  as  may   be
           determined by the Secretary to Government of U.P. in  the  Nagar
           Awas Department.”

11.   Sections 2 and 3  of  the  Government  Grants  Act,  1895,  have  been
amended by U.P.  Act  13  of  1960  with  a  retrospective  effect  and  the
substituted Sections reads as follows:

           “2. (1)  Transfer  of  Property  Act,  1882,  not  to  apply  to
           Government Grants.  –  Nothing  contained  in  the  Transfer  of
           Property Act, 1882,  shall apply  or  be  deemed  ever  to  have
           applied to any grant  or  other  transfer  of  land  or  of  any
           interest therein, heretofore made or thereafter to be  made,  by
           or on behalf of the Government to or in  favour  of  any  person
           whomsoever; and every such grant and transfer shall be construed
           and take effect as if the said Act had not been passed.


           (2)   U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926  not  to
           affect certain leases made by or on behalf of the Government.  -
           Nothing contained in the U.P. Tenancy Act, 1939,   or  the  Agra
           Tenancy Act, 1926,  shall affect or  be  deemed  to  have   ever
           affected any rights,  created,  conferred  or  granted,  whether
           before or after the date of the passing of the Government Grants
           (U.P. Amendment), Act, 1960, by leases of land by, or on  behalf
           of, the Government in favour  of  any  person,  and  every  such
           creation, conferment or;  grant  shall  be  construed  and  take
           effect, notwithstanding anything to the  contrary  contained  in
           the U.P. Tenancy Act, 1939 or the Agra Tenancy Act, 1926.


           (3)   Certain leases made by or on behalf of the  Government  to
           take  effect  according  to  their  tenor.  -   All  provisions,
           restrictions, conditions and limitations contained in  any  such
           creation, conferment or grant referred to in Section 2, shall be
           valid and take effect according to their tenor;  any  decree  or
           direction of a Court of law or  any  rule  of  law,  statute  or
           enactments of the Legislature, to the contrary notwithstanding:


                 Provided that nothing in this Section shall prevent, or  be
           deemed ever to  have  prevented  the  effect  of  any  enactment
           relating to the acquisition of property,  land  reforms  or  the
           imposition of ceiling on agricultural lands.”


12.   This Court in the case of  The State of  U.P.  vs.  Zahoor  Ahmad  and
Another,  reported in  AIR 1973 SC 2520 held as follows:-

           “     Section 3  of  the  Government  Grants  Act  declares  the
           unfettered  discretion  of  the  Government   to   impose   such
           conditions and limitations as it thinks fit, no matter what  the
           general law of the land be.  The meaning of Section 2 and  3  of
           the Government Grants Act is that the scope of that Act  is  not
           limited to affecting the provisions of the Transfer of  Property
           Act only.  The Government has unfettered  discretion  to  impose
           any conditions, limitations, or restrictions in its grants,  and
           the right, privileges and obligations of the  grantee  would  be
           regulated according to the terms of the  grant,  notwithstanding
           any provisions of any statutory or common law.”

13.   Clause 3(C) of the lease deed clearly confers power upon  the  lessor,
State of U.P. that if  the  plot  in  question  is  required  by  the  State
Government for its own purpose or for any public purpose, it shall have  the
right to give one month’s notice in writing to the  lessees  to  remove  any
building standing on the plot and to take possession thereof on  the  expiry
of the two months’ from the date of service of notice.   There is a  further
condition in the clause that if  the  lessor  is  willing  to  purchase  the
building standing on the plot, the lessee shall be paid such amount  as  may
be determined by the Secretary to Government of  U.P.  in  the   Nagar  Awas
Department.
14.   The deed of renewal executed at 17th July, 1998 is a  very  short  one
and recites that the renewal is being done on the same terms and  conditions
including the clause for re-entry as is  continued  in  the  original  lease
deed dated 19th March, 1996 and the terms and conditions  of  the  aforesaid
deed would be binding upon the parties.  The  clause  of  re-entry  was  not
introduced for the first  time  in  the  deed  executed  in  1996  but  also
contained   as one of the clause  in  lease  deed  dated  12th  April,  1923
wherein it was stipulated that if the Government shall at any  time  require
to re-enter on the demised plot it can do so, on  paying  the  cost  of  the
building that may be on the site and that the lessee shall have  no  further
claim of any sort against the Government.   In fact, in  the  deed  executed
on 19th March, 1996,  the  right  of  re-entry  has  been  fettered  by  the
condition “required by the lessor for his or for any public purpose”.     As
the State Government is resuming the leased property  for  his  or  for  any
public purpose, which under the terms of the grant it has absolute power  to
do, the order passed by it on 15th December, 2000  is  perfectly  valid  and
does not suffer from any illegality.
15.   The Division Bench noticed  the  fact  that  in  paragraph  7  of  the
Supplementary  counter  affidavit  filed   in   reply   to   the   amendment
application,  it is averred that the  properties,  reference  of  which  has
been made in para 23 of the writ petition  were in  fact  acquired  at   the
instance  of  the   Allahabad  Development   Authority   for   building   of
residential and commercial  complex and for development of the area and  the
proceeding for acquisition  had commenced on  the  basis  of  the  proposals
received  from  Allahabad  Development  Authority.     In  para  8  of   the
Supplementary counter affidavit, it is averred that when Nazul plot No.  13,
Civil Station, Allahabad,  which  is  situated  in  Civil  Lines  Area,  was
resumed by the State Government for the purpose of  construction  of  a  bus
station,   the same was done in exercise  of  power  vested  with  it  in  a
similar clause  of  the  lease  deed  and  no  proceedings  under  the  Land
Acquisition  Act  had  been  initiated.     The  resumption  by  the   State
Government in  the  said case was challenged before the  Division  Bench  of
the Allahabad High Court which was dismissed  on  16th  December,  1999  and
the Special Leave Petition No. 4329 of 2000 preferred against  the  judgment
of the High Court was summarily dismissed by this  Court on  7th  September,
2001.  Therefore, the contention of the lessee that it  was  for  the  first
time in their case that a lease had been cancelled and the   plot  has  been
resumed by the  State Government under the terms of the deed is,  therefore,
 not correct and a similar course of action  has  been  taken  in  the  past
also.   Therefore, the violation of Article 14  cannot  be  alleged  in  the
present case.
16.   The first question  is  thereby  answered  in  negative,  against  the
appellants and in favour of the respondents.
  17. For taking possession, the State Government is required to follow  the
      law, if any, prescribed.   In the absence of  any  specific  law,  the
      State Government may take possession by filing  a  suit.    Under  the
      Provisions of the Land Acquisition Act, 1894, if the State  Government
      decides to acquire the property in accordance with the  provisions  of
      the said Act, no separate proceedings have to  be  taken  for  getting
      possession of the land.   It may even invoke  the  urgency  provisions
      contained in Section 17 of the said Act and  the  Collector  may  take
      possession of the land immediately after the publication of the notice
      under Section 9.   In such a case, the person  in  possession  of  the
      land acquired would be  dispossessed  forthwith.     However,  if  the
      Government proceeds under the terms of the Government Grants Act, 1895
      then what procedure is to  be  followed.    Section  3  of  Government
      Grants Act, 1895, stipulates that the lease made by or  on  behalf  of
      the  Government  to  take  effect  according  to  their  tenor  –  All
      provisions, restrictions, conditions and limitations contained in  any
      such creation, conferment or grant referred to any Section 2, shall be
      valid and  take  effect  according  to  their  tenor;  any  decree  or
      direction of a Court of Law or any rule of law, statute or  enactments
      of the Legislature, to the contrary.
18.   In the case of The State of U.P. vs. Zahoor Ahmad and  Another(supra),
 this Court held that the Section 3  of  the  Act  declares  the  unfettered
discretion of  the Government to impose such conditions  and  limitation  as
it thinks  fit, no matter what the general law of land  be.     From  Clause
3(C) of the deed,  it is clear that the State of U.P.  while granting  lease
made it clear that  if the demised premises are at any time required by  the
lessor for his or for  any public purpose,  he shall have the right to  give
one month’s  clear notice to the lessee to remove any building  standing  at
the time of the demised  property and within two months’ of the  receipt  of
the notice to take possession  thereof on the expiry of that period  subject
to the condition that the lessor is willing to purchase the property on  the
 demised premises,  the lessee shall be paid  for  such  amount  as  may  be
determined by the  Secretary to the Government of U.P. in  the   Nagar  Awas
Department.
19.   In the case in hand,  the District Magistrate ,  Allahabad High  Court
issued a notice on 11th January, 2001 to  the  appellants   intimating  that
the State Government had passed  order on  15th  December,  2000  cancelling
lease deed and resuming possession of the disputed property as the same  was
required for public purpose.     The  appellants  sent  an  application  but
instead of filing objections before the State Government represented  before
the Chief Minister of U.P. on 31st January, 2001 praying for  revocation  of
order dated 15th December, 2000. Objection was  filed  before  the  District
Magistrate, Allahabad who after consideration of the objection rejected  the
same by order dated 24th August, 2001 enclosing therein a cheque for  rupees
ten lakhs towards compensation for the  building  standing  over  the  plot.
The appellants refused to accept the cheques.   The  respondents  thereafter
dispossessed the appellants from the part of  the  land  on  1st  September,
2001.
20.   Under Clause  3(C)  of  the  lease  deed,   the  respondent-State  was
permitted resumption of the land which required  for  its  own  use  or  for
public purpose and after giving one month’s   clear  notice  in  writing  is
entitled to remove any  building  standing  at  the  time  on   the  demised
premises and within two months  of   the  receipt  of  the  notice  to  take
possession thereof subject to the condition that  if the lessor  is  willing
to  purchase the building of the  demised  premises   required  to  pay  the
lessee the amount for such  building as may be determined by  the  Secretary
to Government of U.P. in the Awas Department.  In  the  case  in  hand  such
procedure was followed. Therefore, we are of  the  view  that  there  is  no
other procedure or law required to be followed, as a special  procedure  for
resumption of land has been laid down under the lease deed.   As  a  special
procedure for resumption of land is prescribed under  the  lease  deed,  the
High Court was not correct in  holding  that  the  State  Government  cannot
dispossess  the  appellants  but  can  take  possession  according  to   the
procedure adopted by any other law.  The finding of the High Court  to  such
extent is set aside but the rest  portion  of  the  judgment  affirming  the
order of the State Government dated 15th December, 2000,  the  notice  dated
11th January, 2001 and an order passed  by  the  District  Magistrate  dated
24th August, 2001 is upheld.    The  appeal  preferred  by  appellants  Azim
Ahmad Kazmi & Ors.  is dismissed and the appeal preferred by  the  State  of
U.P. and Anr.  stands  disposed  of  with  aforesaid  observations.      The
interim order of stay is vacated.  The State Government is allowed  to  take
possession of the demised premises for  extension  of  High  Court  building
etc., as decided.  However, the appellants  are given three months  time  to
hand over the possession of the land and building to the State  and,  if  so
necessary,  the State Government will issue a fresh cheque  for  rupees  ten
lakhs in favour of the  appellants, if earlier cheque has  expired  and  not
encashed.   If the appellants fail to handover  the  possession  of  demised
premises or  create  any  third  party  interest  in  such  case  the  State
Government and the District Magistrate, Allahabad in  particular  will  take
forcible possession of the demised premises.


                                                       ……………………………………………….J.
                                 ( G.S. SINGHVI )




                                                       ……………………………………………….J.
                             ( SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 16, 2012.
-----------------------
21

service matter -The appellant who was initially appointed on 25th August, 2000 as Director, Computer Department in the Hemchandracharya North Gujarat University (hereinafter referred to as the ‘North Gujarat University’) in the scale of pay of Rs.12,000-420-18,300, applied for the appointment to the post of Director on deputation pursuant to an advertisement No.Estt.09- (01)2009 dated 13th September, 2009 published in the Newspaper (Times of India) by the 2nd respondent. By the said advertisement the candidates were informed that the pre-revised scale of pay of the post of Director is Rs.14,300-400-18,300 with further intimation that the said scale of pay will be revised to the pay band + Grade Pay of PB-4 Rs.37,000-67,000 + 8,700. Applications were called for from amongst suitable and eligible persons having Master Degree with 12 years’ experience in Teaching or Research in Central or State Government or University.= No stipulation was made therein that a person receiving higher pay of scale or higher qualification is ineligible for appointment on deputation. On the contrary, in the offer of appointment, “the terms and conditions for deputation” it was specifically mentioned that the scale of pay of Director is PB-4 Rs.37,400-67,000 + 8700 (Grade Pay) with following stipulation at Clause 3: “3. Pay: During the period of deputation Dr. PATEL ASHOK RATILAL will have the either to get his/her pay fixed in the deputation post under the operation of normal rules or to draw pay of the post held by him in the parent Department plus a deputation (duty) allowance in accordance with and subject to the conditions, as modified from time to time and such other general or special orders issued by the Ministry of Finance.” (emphasis added) Once such terms and conditions for deputation was intimated by the 2nd respondent to the North Gujarat University, it was for the appellant to decide whether he will accept the scale of pay as was offered or will continue to receive his fixed pay on deputation as per Clause 3. The appellant by his letter dated 20th February, 2010, accepted the offer and had shown his desire to join the post of Director, AICTE with the pay as mentioned in the said letter; such acceptance being in consonance with the terms and conditions of deputation and the offer of appointment dated 15th February, 2010, it was not open for the 2nd respondent to cancel and withdraw the offer of appointment. Going by the principles as referred above, we are constraint to state that the High Court failed to appreciate the difference between “transfer on deputation” and “appointment on deputation” and erred in holding that the appellant has no right to claim entitlement to the post of Director. As the appellant was selected after due selection and was offered appointment on deputation, and, in absence of any valid ground shown by the respondents, we hold that the appellant has a right to join the post and the respondents were bound to accept his joining. 15. For the reasons aforesaid, the impugned order of withdrawal of appointment dated 11th March, 2010 and the order of the Division Bench of Gujarat High Court cannot be sustained and they are accordingly set aside. As the post of Director is vacant, in view of the interim order of this Court dated 9th May, 2011, we direct the 2nd respondent to accept the joining of the appellant for a period of one year on deputation which is to be counted from the date of his joining and other terms and conditions of deputation will remain same. The North Gujarat University is directed to relieve the appellant with further direction to 2nd respondent to accept the joining of the appellant within one week from the date of reporting by the appellant. The appeal is allowed with the aforesaid observations and directions. There shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5225  OF 2012
                   (arising out of SLP(C)No.10577 of 2011)

ASHOK KUMAR RATILAL PATEL               …. APPELLANT

                             VERSUS

UNION OF INDIA AND ANOTHER               ….RESPONDENTS



                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


1.    Leave granted.  This appeal  has  been  preferred  against  the  order
dated 23rd March, 2011 passed by the Gujarat High  Court  whereby  the  High
Court dismissed the writ petition and affirmed the order of cancellation  of
offer of appointment as was issued to the appellant.
2.    The appellant who was initially appointed  on  25th  August,  2000  as
Director,  Computer  Department  in  the  Hemchandracharya   North   Gujarat
University (hereinafter referred to as the ‘North  Gujarat  University’)  in
the scale of pay of Rs.12,000-420-18,300, applied  for  the  appointment  to
the post of Director on deputation pursuant to an advertisement  No.Estt.09-
(01)2009 dated 13th September, 2009 published in  the  Newspaper  (Times  of
India) by the 2nd respondent. By the said advertisement the candidates  were
informed that  the pre-revised scale of pay  of  the  post  of  Director  is
Rs.14,300-400-18,300 with further intimation that  the  said  scale  of  pay
will be revised to the pay band +  Grade  Pay  of  PB-4  Rs.37,000-67,000  +
8,700. Applications were called  for  from  amongst  suitable  and  eligible
persons having Master Degree  with  12  years’  experience  in  Teaching  or
Research in Central or State Government or University.

3.    The appellant in his application  dated  24th  September,  2009  shown
details of his qualifications in  the  prescribed  proforma,  including  the
scale of pay as he was receiving, as shown below:
      “11.  Employment  Record  (details  in  reverse  chronological  order,
           starting with the last job)


      |Sl.No. |Name & address  |Period of     |Designation |Nature of   |
|       |of the employer |service in    |of Post held|work and    |
|       |                |each post     |& Scale of  |level of    |
|       |                |From to       |pay         |responsibili|
|       |                |              |            |ties        |
|  1.   |H. North Gujarat|Since         |Director    |Research,   |
|       |University,     |August 2000   |Computer    |Teaching &  |
|       |PATAN Gujarat   |              |Department  |Administrati|
|       |State (State    |              |Rs.12000-183|on of       |
|       |University)     |              |00          |department  |
|       |                |              |            |conducting  |
|       |                |              |            |UG, PG &    |
|       |                |              |            |Ph.D Prog.  |

      In the Part-B of the said application, apart from the last  pay  scale
he was receiving, the appellant also mentioned the pay he was expecting,  as
mentioned below:
       “               PART-B
       1.   (a) Present Pay Scale : Rs.12000-420-18300
       (University/State Govt.) (Pay likely to revise as per 6th pay)
            (i)  Basic Pay              Rs.15,780.00
            (ii) Dearness Pay+DA        Rs.19,015.00
            (iii)      Others                      Rs.03,559.00
                                        ----------------
                 Total                  Rs.38,354.00
                                        =========
            (b)  Basic Pay expected: as per AICTE norms.”



4.    The case of the appellant was considered along with others  and  after
due selection the 2nd respondent issued an  offer  of  appointment  on  15th
February, 2010 and the letter was forwarded to the Registrar, North  Gujarat
University requesting the University  to  obtain  acceptance  of  the  above
offer from the appellant and forward it  to  the  Council  (AICTE)  by  26th
February, 2010. In the said letter, it was further  requested  that  in  the
event of the acceptance of the above offer, the appellant  may  be  relieved
as early as possible so as to enable him to join the Council latest by  13th
March, 2010.  The relevant terms  and  conditions  for  deputation  attached
with the offer letter dated 15th February, 2010 are quoted hereunder:
                     “TERMS & CONDITIONS FOR DEPUTATION
        1. Period of deputation: The deputation shall be for  a  period  of
           one year and extendable for a  total  period  of  not  exceeding
           three years on yearly basis w.e.f. the date, the  offer  assumes
           the charge of the post.


        2. Post and scale of pay: Director PB-4 Rs.37,400-67,000 +  Rs.8700
           (Grade Pay).


        3. Pay: During the period of deputation  Dr.  PATEL  ASHOK  RATILAL
           will have the either to get his/her pay fixed in the  deputation
           post under the operation of normal rules or to draw pay  of  the
           post held by him in the  parent  Department  plus  a  deputation
           (duty)  allowance  in  accordance  with  and  subject   to   the
           conditions, as modified from time to time and such other general
           or special orders issued by the Ministry of Finance.”


5.    The appellant by his letter dated 20th  February,  2010  informed  the
2nd respondent his readiness and acceptance to join the  post  of  Director,
AICTE, New Delhi. He also informed his parent University to relieve  him  to
join AICTE on deputation within the joining date suggested by  the  Council,
as evident  from  the  letter  dated  20th  February,  2010  and  is  quoted
hereunder:
                                                           “Hemchandracharya
                                                    North Gujarat University
                                                  P.B.No.21, University Road
                                                         Patan – 384265(N.G)


                                                   Dated 20th February, 2010


                NAAC  Accredited “B” (CGPA) State University


       To
       Chief Administrative Officer
       All India Council for the Technical Education,
       New Delhi.


       Subject : An Application for the post of “DIRECTOR”  on
                   Deputation (Dr. A.R. Patel)


       Ref.    An advertisement letter from your office dated 15th
               February, 2010, with Ref. No.: FNo.2- 4/07/ AICTE/
                   Rectt./Estt/2009/815.


       Sir,
             With respect to above subject, I am  thankful  to  Council  for
       opportunity given to me for work as a Director on  deputation  basis
       at AICTE. I am a Director at Computer Department of H. North Gujarat
       University  in  Pay  Scale  of  Rs.16400-450-20900-500-22400,   with
       present basic pay Rs.19100/-. (To be revised, very shortly,  as  per
       the 6th Pay UGC  Pay  Scale  of  PB-1,  Rs.37400-67000  +  Rs.10,000
       (Academic grade pay).


             I hereby accept the offer of post of Director at AICTE, with my
       present pay as described above, I have requested  my  University  to
       relieve me to join AICTE on deputation within joining date suggested
       by Council.   Hence,  I  will  join  the  Council  as  soon  as  HNG
       University relieve me.


             Thanking you
                                                             Yours sincerely


                                                       (Dr. Ashok R. Patel)”


6.    The North Gujarat University in turn by letter dated 5th  March,  2010
informed the  2nd  respondent  the  approval  of  deputation  given  by  the
Executive Council of the North Gujarat University with  further  information
that the appellant will be relieved on 17th March, 2010. The 2nd  respondent
was further informed  that  the  present  basic  pay  of  the  appellant  is
Rs.19,100 in the  pay  scale  of  Rs.16,400-450-20,900-500-22,400  and  very
shortly the same will be revised as per the 6th Pay Commission and  will  be
fixed in Revised Pay Band + Academic Grade  Pay  of  Rs.37,400  –  67,000  +
Rs.10,000. The 2nd respondent on receipt  of  the  said  letter  issued  the
impugned  letter  dated  11th  March,  2010  and  withdrew  the   offer   of
appointment of the appellant on the ground that deputation from higher  post
to lower post is not admissible under rules.   The relevant portion  of  the
ground given in the impugned letter dated  11th  March,  2010  is  extracted
hereunder:
          “I am directed to inform you that your office  vide  their  letter
       No.Estt/1572/2010 dated 5th  March,  2010  has  informed  that  your
       present basic pay is Rs.19,100 in the  pay  scale  of  Rs.16400-450-
       22400 and very shortly it will be revised as per  the  UGC  6th  Pay
       Commission and will be fixed in the revised pay band+Academic  Grade
       Pay ofRs.37400-67000+Rs.10,000/-. The post of  Director,  in  AICTE,
       offered to you is in the revised bay band of Rs.37400-67000+Rs.8700/-
       , which is a lower grade. Deputation from higher post to lower  post
       is not admissible under rules, the aforesaid offer letter dated 15-2-
       2010 issued to you,  hereby stands withdrawn with immediate effect.”




7.    The cancellation of offer  of  appointment  was  followed  by  another
advertisement which was challenged by the appellant initially  by  filing  a
representation  dated  20th  January,  2011  but  having  not  received  any
information he preferred a writ petition before the Gujarat High Court.
8.    The Division Bench of the Gujarat High Court by the impugned  judgment
dated 23rd March, 2011, dismissed the writ petition on the ground  that  the
appellant has no right to claim entitlement to  the  post  of  Director  and
cannot compel the respondent to take him on deputation.
9.    Learned Counsel appearing on behalf of the  appellant  submitted  that
the case of the appellant was not a case of transfer on deputation  but  was
a case of appointment on deputation after following all due  procedures  for
appointment and selection. In absence of any  illegality  in  selection,  it
was not open to the Respondents to cancel the  offer  of  appointment.  Such
action is arbitrary and violative of  Article  14  of  the  Constitution  of
India.
10.   On the other hand, according to the respondents, they having  realised
that the pay of the parent department of the appellant could not be paid  as
he was getting higher pay as Director in the North Gujarat  University,  the
offer of deputation was withdrawn. It was further contended  that  a  person
getting higher scale of pay cannot be deputed against a lower scale  of  pay
and the appellant has no right to claim  his  entitlement  to  the  post  of
Director, AICTE.
11.   Ordinarily transfers on deputations are  made  as  against  equivalent
post from one cadre to another, one department to another, one  organisation
to another, or one Government to another; in such case a  deputationist  has
no legal right in the post.  Such deputationist has no right to be  absorbed
in the post to which he is  deputed.  In  such  case,  deputation  does  not
result  into  recruitment,  as  no  recruitment  in  its  true  import   and
significance takes place as the person is continued to be a  member  of  the
parent service.
12.   However, the aforesaid principle cannot  be  made  applicable  in  the
matter  of  appointment(recruitment)  on  deputation.  In  such  case,   for
appointment on deputation in the services of the State  or  organisation  or
State within the meaning of Article 12 of the  Constitution  of  India,  the
provisions of Article 14 and Article 16 are to be followed.  No  person  can
be discriminated  nor  it  is  open  to  the  appointing  authority  to  act
arbitrarily or to  pass  any  order  in  violation  of  Article  14  of  the
Constitution of India.  A person, who applies for appointment on  deputation
has indefeasible right to be  treated  fairly  and  equally  and  once  such
person  is  selected  and  offered  with  the  letter  of   appointment   on
deputation, the same cannot be  cancelled  except  on  the  ground  of  non-
suitability or unsatisfactory work.
13.   The present case is not a case of transfer  on  deputation.  It  is  a
case of appointment on deputation for which  advertisement  was  issued  and
after due selection, the offer of appointment was issued in  favour  of  the
appellant.  In such circumstances, it was not open  for  the  respondent  to
argue  that  the  appellant  has  no  right  to  claim  deputation  and  the
respondent cannot refuse to accept the joining  of  most  eligible  selected
candidate except for ground of unsuitability or unsatisfactory  performance.

14.   In the advertisement  dated  13th  September,  2009,  the  pre-revised
scale of pay of the post of Director was shown at  Rs.14,300-400-18,300.  It
was mentioned that the said pay scale will be revised  to  the  pay  band  +
grade pay of Rs.37,000-67,000 + 8700. No stipulation was made  therein  that
a  person  receiving  higher  pay  of  scale  or  higher  qualification   is
ineligible for appointment on deputation. On the contrary, in the  offer  of
appointment, “the terms and conditions for deputation” it  was  specifically
mentioned that the scale of pay of Director is PB-4 Rs.37,400-67,000 +  8700
(Grade Pay) with following stipulation at  Clause 3:
       “3.  Pay: During the period of deputation Dr.  PATEL  ASHOK  RATILAL
           will have the either to get his/her pay fixed in the  deputation
           post under the operation of normal rules or to draw pay  of  the
           post held by him in the  parent  Department  plus  a  deputation
           (duty)  allowance  in  accordance  with  and  subject   to   the
           conditions, as modified from time to time and such other general
           or special orders issued by the Ministry of Finance.”
                                             (emphasis added)

      Once such terms and conditions for deputation  was  intimated  by  the
2nd respondent to the North Gujarat University, it was for the appellant  to
decide whether he will accept the scale  of  pay  as  was  offered  or  will
continue to receive his fixed  pay  on  deputation  as  per  Clause  3.  The
appellant by his letter dated 20th February, 2010, accepted  the  offer  and
had shown his desire to join the post of Director, AICTE  with  the  pay  as
mentioned in the said letter;   such acceptance  being  in  consonance  with
the terms and conditions of deputation and the offer  of  appointment  dated
15th February, 2010, it was not open for the 2nd respondent  to  cancel  and
withdraw the offer of appointment.  Going  by  the  principles  as  referred
above, we are constraint to state that the High Court failed  to  appreciate
the  difference  between  “transfer  on  deputation”  and  “appointment   on
deputation” and erred in holding that the appellant has no  right  to  claim
entitlement to the post of Director. As the  appellant  was  selected  after
due selection and was offered appointment on deputation, and, in absence  of
any valid ground shown by the respondents, we hold that the appellant has  a
right to join the  post  and  the  respondents  were  bound  to  accept  his
joining.
15.   For the  reasons  aforesaid,  the  impugned  order  of  withdrawal  of
appointment dated 11th March, 2010 and the order of the  Division  Bench  of
Gujarat High Court cannot be sustained and they are accordingly  set  aside.
As the post of Director is vacant, in view of  the  interim  order  of  this
Court dated 9th May, 2011, we  direct  the  2nd  respondent  to  accept  the
joining of the appellant for a period of one year on deputation which is  to
be counted from the date of his joining and other terms  and  conditions  of
deputation will remain same. The North Gujarat  University  is  directed  to
relieve the appellant with further direction to  2nd  respondent  to  accept
the joining of the appellant within one week from the date of  reporting  by
the appellant.  The appeal is allowed with the  aforesaid  observations  and
directions. There shall be no order as to costs.

                                                  ………..……………………………………………..J.
                                  ( G.S. SINGHVI )




                                                    ……………………………………………………….J.
                      ( SUDHANSU JYOTI MUKHOPADHAYA )
NEW DELHI,
JULY 16, 2012.

-----------------------
15

service matter - Appellant No.1, Sushila Tiwary is the wife and appellant Nos.2 to 5, Rajesh, Priyanjali, Sudhansu and Himanshu are the sons and daughter of Shri Tiwary. 4. Shri Tiwary was working as Special Assistant in the Allahabad Bank, Arah Branch(hereinafter referred to as “the Bank”). He was suspended on 11th June, 1990 for certain acts of omission and commission and proceeded departmentally under Clause 19.5(d) and 19.5.(j) of the first Bi-partite Settlement 1966. Two charge-sheets dated 30th June, 1990 and 13th October, 1990 were served on him. The Bank also decided simultaneously to prosecute Shri Tiwary in a criminal case for the criminal act and lodged an FIR with the Arah Police Station. After trial Shri Tiwary was convicted in the criminal case on 19th April, 1999 by the Sub-Divisional Judicial Magistrate(SDJM), Bhojpur. He was ordered to undergo RI for one year for the offence punishable under Section 468 IPC and RI for one year for the offence punishable under Section 477(A) IPC.= ‘The disciplinary action and procedure’ of the Bank are guided by Chapter 19 of Bi-partite Settlement, 1966. As per Clause 19.3(b), if an employee of the Bank is convicted in a criminal case, such employee may be dismissed from service from the date of his conviction or may be inflicted with lesser form of punishment depending on gravity of charges. Clauses 19.3(c) and 19.3(d) relate to action which is to be taken by the disciplinary authority, in case an employee is acquitted during the trial or pursuant to an order passed in an appeal or revision. Relevant Clause 19.3(c) and Clause 19.3(d) read as follows: “19.3(c) If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in Clauses 19.11 and 19.12 infra relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months’ pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowances as he has drawn and to all other privileges for the period of suspension provided that he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so direct. 19.3(d) If he prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set below in Clauses 19.11 and 19.12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply, the period upto date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months’ pay and allowance in lieu of notice, as directed above.” -Shri Tiwary was acquitted during the trial for the offence under Section 468 IPC and Section 477 (A) IPC and was ordered to undergo RI for one year each for both the Sections. He was acquitted by giving benefit of doubt in the criminal appeal. In such case, Shri Tiwary was liable to be proceeded under Clause 19.3(d) and, thereby, the appellants cannot derive of the benefit of Clause 19.3(c) of the Bi-partite Settlement. The disciplinary authority by its notice dated 2nd July, 2001 passed the following order: “As such, it is ordered that Shri Tiwary will be deemed to have been placed under suspension from the date of original order of dismissal i.e. 21.07.1999 and shall continue to remain under suspension until further order. During the period of suspension, he will be entitled to subsistence allowance on the same scale as he was getting just before his dismissal on 21.07.1999.” 15. If Clause 19.3(d) is read along with the notice dated 2nd July, 2001, it is clear that Shri Tiwary stood reinstated w.e.f. 21st July, 1999, i.e., the date on which he was originally dismissed from service and deemed to be continuing under suspension since then. For the said reasons, the stand taken by the appellants that Shri Tiwary was not reinstated before the departmental proceedings is fit to be rejected and we hold that he was entitled for subsistence allowance and not the full pay and allowances as called for. 16. We find no illegality in the order of termination or orders passed by the learned Single Judge and the Division Bench of the Patna High Court. They do not call for any interference. In absence of any merit, the appeal is dismissed but there shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5224 OF 2012
                   (arising out of SLP(C)No.11293 of 2011)

SUSHILA TIWARY AND OTHERS         …. APPELLANTS

                             VERSUS

ALLAHABAD BANK AND OTHERS             ….RESPONDENTS




                               J U D G M E N T



SUDHANSU JYOTI MUKHOPADHAYA, J.

      Delay condoned. Leave granted.
2.    This appeal has been preferred by the  Legal  Heirs  of  the  original
writ petitioner, Shri Ravindra  Nath  Tiwary  (hereinafter  referred  to  as
“Shri Tiwary”) against the judgment  dated  3rd  May,  2010  passed  by  the
Division Bench of the Patna High Court in L.P.A.  No.762  of  2010,  whereby
the Division Bench dismissed the appeal and affirmed  the  order  passed  by
the learned Single Judge wherein the order  of  termination  passed  against
Shri Tiwary was affirmed.
3.    Appellant No.1, Sushila Tiwary is the wife and appellant Nos.2  to  5,
Rajesh, Priyanjali, Sudhansu and Himanshu are the sons and daughter of  Shri
Tiwary.
4.    Shri Tiwary was working as Special Assistant in  the  Allahabad  Bank,
Arah Branch(hereinafter referred to as “the  Bank”).  He  was  suspended  on
11th June, 1990 for certain acts of omission and  commission  and  proceeded
departmentally under Clause 19.5(d) and 19.5.(j)  of  the  first  Bi-partite
Settlement 1966. Two charge-sheets dated 30th June, 1990 and  13th  October,
1990 were served on him. The Bank also decided simultaneously  to  prosecute
Shri Tiwary in a criminal case for the criminal act and lodged an  FIR  with
the Arah Police Station. After  trial  Shri  Tiwary  was  convicted  in  the
criminal  case  on  19th  April,  1999  by   the   Sub-Divisional   Judicial
Magistrate(SDJM), Bhojpur. He was ordered to undergo RI  for  one  year  for
the offence punishable under Section 468 IPC and RI for  one  year  for  the
offence punishable under Section 477(A) IPC.
5.    In view of the conviction in the criminal case, the Assistant  General
Manager, Regional Office, Patna, who  was  the  disciplinary  authority,  by
invoking provisions of Clause 19.6(a) of  the  Bi-partite  Settlement,  1966
dismissed Shri Tiwary from the services of the Bank by order  No.8/99  dated
21st July, 1999  after  giving  opportunity  of  personal  hearing  to  Shri
Tiwary.
      Against the order of conviction Shri Tiwary preferred an appeal in the
Court of the  Additional  District  and  Sessions  Judge,  Bhojpur,  who  by
judgment dated 6th February,  2000,  after  giving  benefit  of  doubt,  had
acquitted Shri Tiwary from the charges.  After  the  acquittal  Shri  Tiwary
approached the Bank and informed that he  has  been  acquitted  in  criminal
case by the Appellate  Court.  The  Bank  on  receipt  of  such  intimation,
invoked Clause 19.3(c) of the Bi-partite Settlement and  by  order  No.1/126
dated 2nd July, 2001 ordered that Shri Tiwary will be deemed  to  have  been
placed under suspension from the date of original order of dismissal,  i.e.,
21st July, 1999 and shall continue to remain under suspension until  further
order.  It was further ordered that during the period of suspension he  will
be entitled to subsistence allowance on the same scale as was  getting  just
prior to his  dismissal  dated  21st  July,  1999.   The  Assistant  General
Manager, Regional Office, Patna who was the disciplinary  authority  brought
the aforesaid facts to the notice of  Shri  Tiwary  and  informed  that  his
Headquarters has been fixed at Arah.
6.     In  the  departmental  enquiry,  Shri  Tiwary  did  not   choose   to
participate. Once, he appeared before the Enquiry Officer but  later  on  he
again absented and refused to appear.  Shri Tiwary moved  before  the  Patna
High Court against the order  of  suspension  and  revival  of  departmental
proceedings by filing a writ petition, C.W.J.C. No.11479  of  2001.  In  the
said writ petition, in view of the statement made  on  behalf  of  the  Bank
that the departmental enquiry has already been  concluded  and  the  Enquiry
Officer has already submitted the report,  Shri  Tiwary  withdrew  the  writ
petition on 5th March, 2003 with liberty to raise all the  pleas,  in  case,
the order of disciplinary authority goes adverse to him.
7.    The disciplinary authority noticed that Shri Tiwary refused to  appear
before the Enquiry Officer  and  remained  absent.  Therefore,  the  Enquiry
Officer had to submit ex parte  reports  on  3rd  September,  2002  and  9th
September, 2002 separately for the two different chargesheets.  In both  the
departmental proceedings all the charges  against  Shri  Tiwary  were  found
true.  In this background, a second show-cause notice  was  issued  to  Shri
Tiwary by the disciplinary authority by order dated 31st March, 2003 and  it
was proposed as to why his  services  be  not  terminated  by  paying  three
months’ pay and allowances in terms of Clause  3(d)  of  the  Memorandum  of
Settlement dated 10th April, 2002. Shri Tiwary  was  advised  to  appear  in
person with or without his Defence Representative  before  the  disciplinary
authority,  the  Assistant  General  Manager,  Regional  Office,  Patna  for
personal hearing on 16th May, 2003. Pursuant to  such  notice,  Shri  Tiwary
appeared before the disciplinary  authority  on  16th  May,  2003  with  his
Defence Representative. The objections as raised by  him  were  recorded  by
the  disciplinary  authority  and  after  going  through  the  chargesheets,
Enquiry Repots and the objections raised by  Shri  Tiwary  the  disciplinary
authority terminated the services of Shri Tiwary by order dated  16th  June,
2003.
8.    Against the order of termination, Shri Tiwary filed the writ  petition
before the Patna High  Court  in  C.W.J.C.  No.12429  of  2005.  During  the
pendency of the said writ petition before the  learned  Single  Judge,  Shri
Tiwary died and was substituted  by  his  Legal  Heirs.  After  hearing  the
parties, learned Single Judge by judgment dated 3rd September,  2008  taking
into consideration the gravity of charges  and  the  fact  that  the  amount
which was alleged to be embezzled was deposited  by  Shri  Tiwary  with  the
Bank, pursuant to the order of this Court dated 8th July, 2008  in  Criminal
Appeal No. 1019  of  2008,  refused  to  entertain  the  writ  petition  and
dismissed the same. The Division Bench of the Patna High Court affirmed  the
said decision and dismissed the L.P.A. by the impugned judgment.
9.     Learned  counsel  appearing  on  behalf  of  the  appellants   herein
submitted  that  without  reinstating  the  original  writ  petitioner,   no
departmental  enquiry  could  be  initiated.  Further,  in  view  of  Clause
19.3(c),  the  original  writ  petitioner  was  entitled  to  full  pay  and
allowances minus the subsistence allowance and all other privileges for  the
period of suspension which was denied to him.
      It was further contended by the learned  counsel  for  the  appellants
that the High Court ought to have considered that the  departmental  enquiry
had been conducted and concluded ex parte,  hence  in  all  probability,  it
would have been fair enough to grant at least one more  opportunity  to  the
legal heirs of the delinquent to participate  in  the  departmental  enquiry
and prove the innocence of the delinquent.  It was also contended  that  the
High Court ought to have considered that the impugned order of dismissal  is
void, having  been  passed  without  their  being  any  master  and  servant
relationship existing at the time  of  passing  of  the  order  against  the
delinquent in absence of order of reinstatement.
10.   Per contra,  according  to  the  learned  counsel  appearing  for  the
respondents, in view of order dated 2nd July, 2001 Shri  Tiwary  was  deemed
to have been reinstated and in terms  of  Clause  19.3(d)  Shri  Tiwary  was
deemed to be on duty of the Bank from  the  date  order  of  suspension  was
issued.
11.   We have considered the respective submissions  and  also  perused  the
relevant provisions of Bi-partite Settlement.
12.   ‘The disciplinary action and procedure’ of  the  Bank  are  guided  by
Chapter 19 of Bi-partite Settlement, 1966. As  per  Clause  19.3(b),  if  an
employee of the Bank is convicted in a criminal case, such employee  may  be
dismissed from service from the date of his conviction or may  be  inflicted
with lesser form of punishment depending  on  gravity  of  charges.  Clauses
19.3(c)  and  19.3(d)  relate  to  action  which  is  to  be  taken  by  the
disciplinary authority, in case an employee is acquitted  during  the  trial
or pursuant to an order passed in an appeal or  revision.   Relevant  Clause
19.3(c) and Clause 19.3(d)   read as follows:
      “19.3(c) If he be acquitted, it shall be open  to  the  management  to
      proceed against him under the provisions  set  out  below  in  Clauses
      19.11 and 19.12 infra relating to discharges. However, in the event of
      the management deciding after enquiry not to continue him in  service,
      he shall be liable only for termination of service with three  months’
      pay and allowances in lieu of notice.  And he shall be deemed to  have
      been on duty during the period of suspension, if  any,  and  shall  be
      entitled to  the  full  pay  and  allowances  minus  such  subsistence
      allowances as he has drawn and to all other privileges for the  period
      of suspension provided that he be acquitted by being given the benefit
      of doubt he may be paid such portion of such pay and allowances as the
      management may deem proper, and the period of his absence shall not be
      treated as a period spent on duty unless the management so direct.


      19.3(d) If he prefers an appeal or revision  application  against  his
      conviction and is acquitted, in case he had already been dealt with as
      above and he applies to the  management  for  reconsideration  of  his
      case, the management shall review his case and  may  either  reinstate
      him or proceed against him under the provisions set below  in  Clauses
      19.11 and 19.12 infra relating to discharge, and the provision set out
      above as to pay, allowances and the period of suspension  will  apply,
      the period upto date for which full pay and allowances have  not  been
      drawn being treated  as  one  of  suspension.  In  the  event  of  the
      management deciding, after enquiry not to continue him in service, the
      employee shall be liable only for termination with three  months’  pay
      and allowance in lieu of notice, as directed above.”

13.   The above reproduced provisions represent the intention  of  the  Bank
and the Union to determine as  to  what  steps  the  disciplinary  authority
requires to take in case an employee who is accused in a  criminal  case  is
acquitted  during  the  trial  or  such   employee   after   conviction   is
subsequently acquitted in an appeal or revision. Clause 19.3(c)  applies  to
the cases where the employee is acquitted during the  trial.  On  the  other
hand, Clause 19.3(d) applies to  the  cases  where  the  convicted  employee
prefers an appeal or revision application  against  his  conviction  and  is
acquitted. Under Clause 19.3(d) if an employee  applies  to  the  management
for reconsideration of his case on acquittal, the management is required  to
review his case and may either reinstate him or proceed  against  him  under
the provisions set in Clauses 19.11 and 19.12  relating  to  discharge,  the
period up-to-date for which full pay  and  allowances  have  not  been  paid
being treated as one of suspension. In the  event  of  management  deciding,
after enquiry, not to continue in service,  the  employee  shall  be  liable
only for termination with three  months’  pay  and  allowances  in  lieu  of
notice.
14.   Reverting to the facts of this case, we  find  that  Shri  Tiwary  was
acquitted during the trial  for  the  offence  under  Section  468  IPC  and
Section 477 (A) IPC and was ordered to undergo RI  for  one  year  each  for
both the Sections.  He was acquitted by  giving  benefit  of  doubt  in  the
criminal appeal. In such case, Shri Tiwary was liable to be proceeded  under
Clause 19.3(d) and, thereby, the appellants cannot derive of the benefit  of
Clause 19.3(c) of the Bi-partite Settlement.
      The disciplinary authority by its notice dated 2nd July,  2001  passed
the following order:
           “As such, it is ordered that Shri Tiwary will be deemed to  have
           been placed under suspension from the date of original order  of
           dismissal i.e. 21.07.1999 and shall  continue  to  remain  under
           suspension until further order. During the period of suspension,
           he will be entitled to subsistence allowance on the  same  scale
           as he was getting just before his dismissal on 21.07.1999.”




15.   If Clause 19.3(d) is read along with the notice dated 2nd July,  2001,
it is clear that Shri Tiwary stood reinstated w.e.f. 21st July, 1999,  i.e.,
the date on which he was originally dismissed from service and deemed to  be
continuing under suspension since then. For  the  said  reasons,  the  stand
taken by the appellants that Shri  Tiwary  was  not  reinstated  before  the
departmental proceedings is fit to be rejected  and  we  hold  that  he  was
entitled for subsistence allowance and not the full pay  and  allowances  as
called for.
16.   We find no illegality in the order of termination or orders passed  by
the learned Single Judge and the Division Bench of  the  Patna  High  Court.
They do not call for any interference. In absence of any merit,  the  appeal
is dismissed but there shall be no order as to costs.


                                                  ………..……………………………………………..J.
                                  ( G.S. SINGHVI )






                                                    ……………………………………………………….J.
                        ( SUDHANSU JYOTI MUKHOPADHAYA )


NEW DELHI,
JULY 16, 2012.
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