‘rule of seniority’- On being selected by the District Level Committee which had considered the candidature of those sponsored by the Employment Exchanges, respondent Nos.1 to 13 were appointed as Masters in the subjects of Science, Maths and Social Studies, respondent No.14 was appointed as Physical Training Instructor and respondent No.15 was appointed as Hindi Teacher purely on ad hoc basis between 1994 and 1996 by the District Education Officers. - None of the aforesaid judgments can be read as laying down a proposition of law that a person who is appointed on purely ad hoc basis for a fixed period by an authority other than the one who is competent to make regular appointment to the service and such appointment is not made by the specified recruiting agency is entitled to have his ad hoc service counted for the purpose of fixation of seniority. Therefore, the respondents, who were appointed as Masters in different subjects, Physical Training Instructor and Hindi Teacher on purely ad hoc basis without following the procedure prescribed under the 1955 Rules are not entitled to have their seniority fixed on the basis of total length of service. As a corollary to this, we hold that the direction given by the High Court for refixation of the respondents’ seniority by counting the ad hoc service cannot be approved. 25. In the result, the appeal is allowed, the impugned order is set aside and the writ petition filed by the respondents is dismissed. The parties are left to bear their own costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.  5947      OF 2012
                 (Arising out of SLP (C) No. 29274 of 2009)

State of Haryana and others                        … Appellants

                                   Versus

Vijay Singh and others                                   … Respondents



                               J U D G M E N T
G. S. Singhvi, J.
1.    Leave granted.
2.     On  being  selected  by  the  District  Level  Committee  which   had
considered the candidature of those sponsored by the  Employment  Exchanges,
respondent Nos.1 to  13  were  appointed  as  Masters  in  the  subjects  of
Science, Maths  and  Social  Studies,  respondent  No.14  was  appointed  as
Physical Training Instructor and respondent No.15  was  appointed  as  Hindi
Teacher purely on ad hoc  basis  between  1994  and  1996  by  the  District
Education Officers.  The relevant portions  of  one  such  order  issued  on
16.10.1995 are reproduced below:

       “OFFICE OF THE DISTT. EDUCATION OFFICER, PANIPAT

        Order No.E-1/95/3515-65              Dated Panipat 16.10.1995

            On  the  recommendation  of  the  Distt.  Level  Committee,  the
    following candidates are hereby appointed purely  on  ad  hoc  basis  as
    Master/Mistresses in the subject  noted  against  them  in  the  Haryana
    Education Service Non Gazetted Class II (School cadre) Men/Women  branch
    (as the case may be) w.e.f. the they join their duty in the  institution
    indicated against their names in the grade of  Rs.1400-2600  plus  usual
    allowances sanctioned by the Haryana Government from time to time on the
    following terms and conditions:-




    |Sl.No      |Name and address of |Place of     |Remarks   |
|           |the candidate       |posting      |          |


    S.S. Master (Male), General Category

|1 to 3      |xxxxxx           |xxxxxxx          |xxxxxxx  |


    S,S. Master (Male) B.C. Category

|1.          |xxxxxx           |xxxxxxx          |xxxxxxx  |


    S,S. Master, S.C. Category (Male) Block A

|1.          |xxxxxx           |xxxxxxx          |xxxxxxx  |


    S,S. Master, Block B

|2.          |xxxxxx           |xxxxxxx          |xxxxxxx  |


    S,S. Master Male, ESM

|1 & 2.      |xxxxxx           |xxxxxxx          |xxxxxxx  |


    S,S. Mistress General Category

|1 to 3      |xxxxxx           |xxxxxxx          |xxxxxxx  |


    S,S. Mistress Category Scheduled Caste, Block A.

|1.          |xxxxxx           |xxxxxxx          |xxxxxxx  |


    Science  Master Male General Category

|1.          |Vijay Singh s/o  |G.S.S.S. Mandi   |Against  |
|            |Om Parkash V.P.O.|                 |vacancy  |
|            |Palri (Panipat)  |                 |         |
|2&3         |xxxxxxx          |xxxxxxx          |xxxxxxx  |


    Science Mistress General Category

|1 & 2.      |xxxxxx           |xxxxxxx          |xxxxxxx  |


    Math Master General Category Male

|1 and 2.    |xxxxxx           |xxxxxxx          |xxxxxxx  |


    Math Mistress General Category

|1           |xxxxxx           |xxxxxxx          |xxxxxxx  |



    Terms & Conditions:

    1.      The above appointments are purely on ad hoc basis for six months
        or till  the  candidates  are  available  for  regular  appointment
        whichever is earlier.  Their services are liable to  be  terminated
        without assigning any reason or notice at any time.

    2 to 6         xx       xx               xx                xx”

3.    In furtherance of the policy decision taken by  the  State  Government
in the light of the judgment of the High Court in Hassan Mohd. v.  State  of
Haryana 2004 (2) SCT 505, the services of the respondents  were  regularized
w.e.f. 1.10.2003.  The opening paragraph and  clause  5  of  the  terms  and
conditions  embodied  in  order  dated  3.8.2004/12.8.2004  passed  by   the
Director, Secondary Education, Haryana for regularization  of  a  number  of
employees of District Ambala  including  respondent  No.12  Prem  Kumar  are
extracted below:

      “OFFICE OF THE DIRECTOR SECONDARY EDUCATION HARYANA
                                   CHANDIGARH

      ORDER No. 2/4-2004-E-V (5)   DATED CHANDIGARH THE
      03.08.2004


            In pursuance of the decision  contained  in  the  Haryana  Govt.
      letter No.6/9/03-IGS-I dated 03.10.2003, the following Master/Mistress
      who were appointed on ad  hoc/contractual  basis  and  have  completed
      three years service upto 30.09.2003 and were in service on  that  date
      are hereby appointed as officiating Masters/Mistress in HES-III School
      Cadre (Men's Branch) in the grade of Rs.5500-9000  (pre-revised)  plus
      usual allowances as sanctioned by the Haryana Government from time  to
      time w.e.f. 01.10.2003 and posted  at  present  place  against  vacant
      posts as per following terms and conditions:-


      |Sr. No.|Name of  the office and present|Date of           |
|       |place of posting               |appointment       |


      Sh/Smt. Masters /Mistress Distt. Ambala
      1. to 16.      xxxxx          xxxxxx                  xxxxx
     Sh/Smt. Master/Mistress Distt. Ambala.
      17.  to l9     xxxxxxx            xxxxxx                 xxxxx


      20.   Prem Kumar,   GHS Kalpi                    01.03.1995


      21. to 27.              xxxxx     xxxxxx

      Sh/Smt. Science Master /Mistress Distt. Ambala.


      29. to 38.            xxxxxxx     xxxxxx




      1 to 4                 xx         xx         xx


      5.    They are put on probation for a period of two years in the first
      instance from the date  he  joined  his  duty.   His  result  will  be
      particularly taken into consideration while assessing his performance,
      if in the option of the appointing authority his work and conduct  has
      not been found satisfactory during probation period,  this  period  is
      liable to be extended provided that  the  total  period  of  probation
      including extension, if any, shall exceed 3 years or his service  will
      be dispensed with.


      6     to     9                     xx              xx              xx”



4.    After regularization of  their  services,  the  respondents  submitted
representations through their association and claimed that the period of ad-
hoc service should be counted towards seniority because they were  recruited
on the basis of selection made by  the  District  Selection  Committee  from
among the candidates sponsored by the Employment Exchanges.  The  department
did not accept their plea and in  the  provisional  gradation  list  of  the
Haryana Education Service Class III, their names were shown below those  who
were appointed on regular basis prior to 1.10.2003.
5.    The respondents challenged the provisional  gradation  list  in  Civil
Writ Petition No.2409/2008 on the ground that the  same  was  discriminatory
and prayed that in view of the judgment of  this  Court  in  Direct  Recruit
Class II Engineering Officers’  Association  v.  State  of  Maharashtra  and
others  (1990)  2  SCC  715,  their  seniority  be  fixed  by  taking   into
consideration the total length of service including the ad-hoc service,  and
until then, no one should be promoted to the post of lecturer.
6.    In the written statement filed on behalf of  the  appellants,  it  was
pleaded that the Provisional Gradation List was prepared in accordance  with
Rule 11 of the Haryana State Education  School  Cadre  (Group  ‘C’)  Service
Rules, 1998 (for short, ‘the 1998 Rules’) and the service  rendered  by  the
respondents before regularization cannot be  taken  into  consideration  for
the purpose of fixation of seniority.

7.     The Division Bench of the High Court relied  upon  the  judgments  in
Direct Recruit Class  II  Engineering  Officers’  Association  v.  State  of
Maharashtra and others (supra), Dr.Chandra Prakash v. State of  U.P.  (2002)
10 SCC 710, and order dated 4.7.2008 passed in C.W.P.No.7862/2006,  Hanumant
Singh vs. State of Haryana and others, and declared that  the  seniority  of
the respondents be fixed by taking into account their ad  hoc  service  and,
accordingly, they should  be  considered  for  promotion  to  the  posts  of
lecturer.

8.    Shri Neeraj Jain, learned senior counsel for the  appellants  referred
to  the provisions of the Punjab  Educational  Service,  Class  III,  School
Cadre Rules, 1955 (for short, ‘the 1955 Rules’), as applicable to the  State
of Haryana, the 1998 Rules,  Notification  dated  28.1.1970  issued  by  the
Governor of Haryana under Article 309 of the Constitution  for  creation  of
the Subordinate Services Selection Board (for short, ‘the  Board’)  as  also
Notification dated 29.6.1973, by which Clause 6 of the earlier  notification
was substituted, and argued that even though the respondents were  appointed
as Masters in different subjects and Physical Training Instructor and  Hindi
Teacher against the sanctioned posts after  being  sponsored  by  Employment
Exchanges and on being recommended  by  the  District  Selection  Committee,
their seniority cannot be fixed on the basis  of  total  length  of  service
because their appointments were purely  ad  hoc  and  were  subject  to  the
availability of the candidates selected for regular appointment.  Shri  Jain
pointed out that under the 1955 Rules, the Director  of  Education  and  not
the District Education Officer was competent  to  make  appointment  on  the
posts of Masters and argued that the services rendered  by  the  respondents
on the basis of ad hoc appointments made by the District Education  Officers
cannot be clubbed with  post  regularization  service  for  the  purpose  of
determination of seniority.  Learned  senior  counsel  further  argued  that
initial appointments  of  the  respondents  cannot  be  treated  as  regular
because the  same  were  not  made  on  the  recommendations  of  the  Board
constituted vide Notification dated 28.1.1970.  Shri Jain pointed  out  that
under the 1998  Rules  also  the  appointing  authority  for  the  posts  of
Masters/Mistresses is the Joint Director of Schools  and  not  the  District
Education Officer and argued that the High Court committed serious error  by
directing fixation of the seniority of the respondents by counting their  ad
hoc service ignoring that their initial appointments were not  made  by  the
competent authority on the recommendations of the Board.



9.    Shri  P.S.  Patwalia,  learned  senior  counsel  for  the  respondents
supported the direction  given  by  the  High  Court  and  argued  that  the
respondents are entitled to have their  seniority  fixed  on  the  basis  of
total  length  of  service  because  they  were  initially  appointed  after
following the procedure prescribed for regular recruitment.   Shri  Patwalia
emphasized that the posts  against  which  the  respondents  were  appointed
between 1994 and 1996 were duly sanctioned and the  appointments  were  made
by the District Education  Officers  from  among  the  candidates  who  were
sponsored by the Employment Exchanges and whose names  were  recommended  by
the District Selection Committees.  Learned senior counsel argued  that  the
use of phrase ‘ad hoc’ in  the  orders  issued  by  the  District  Education
Officers  is  not  conclusive  and  the  High  Court  rightly  treated   the
respondents’ initial appointment as regular for the purpose of  fixation  of
seniority.  Shri Patwalia relied  upon  the  principles  laid  down  by  the
Constitution  Bench  in  Direct  Recruit  Class  II  Engineering   Officers’
Association v. State of Maharashtra and others (supra),  and  the  judgments
in State of West Bengal v. Aghore Nath (1993) 3 SCC 371,  M.K. Shanmugan  v.
U.O.I. (2000) 4 SCC 476, Rudra Kumar Sain and others v.  Union  of  India  &
others, (2000) 8 SCC 25, Dr. Chandra Prakash v. State of  U.P.  (supra)  and
S. Sumyan and others v. Limi Niri & others, (2010) 6  SCC  791,  and  argued
that once the ad hoc  appointments  of  the  respondents  were  regularized,
there could be no justification  to  exclude  their  past  service  for  the
purpose of fixation of seniority.
10.   We have considered the respective submissions.  Rules 2(a), (e), 3,  8
and 9 of the 1955 Rules, which were applicable to the State of Haryana  till
the enactment of the 1998 Rules, Rules 6, 10 and 11 of the  1998  Rules  and
the relevant extracts of Notifications dated 28.1.1970 and 29.6.1973  issued
by the Governor of Haryana under Article  309  of  the  Constitution,  which
have bearing on the decision of this appeal, are reproduced below:
      THE 1955 RULES

      “2 (a)  “The Director”  means  the  Director  of  Public  Instruction,
      Punjab for the time being.

      (e) “Direct appointment” means an appointment made otherwise  with  by
      promotion within the service or by transfer of an official serving  in
      another department of any State in India or the Government of India.


      3.    Authority competent to make appointment: - All  appointments  to
      posts in the service  shall  be  made  by  the  Director  except  that
      Divisional Inspector / Inspectorass of School  or  the  Principals  of
      Government Colleges may make any temporary or officiating  appointment
      to a post other than that of the  Headmaster  or  Headmistress  or  an
      Assistant District  Inspector  of  Schools  i.e.,  for  a  period  not
      exceeding three months of any time.

      8.    Probation: - i)  Members  of  the  service,  who  are  recruited
      directly against permanent vacancies shall  be  on  probation  in  the
      first instance for one year.

           ii)   Approved officiating service shall be reckoned  as  period
           spent on probation, but no member  who  has  officiated  in  any
           appointment for one year, may claim to be confirmed until he  is
           appointed against a permanent vacancy.

           iii)  On the completion of the period of probation the  Director
           may confirm the member in his / her appointment or if his /  her
           work or conduct during the period of probation has been  in  his
           opinion unsatisfactory, he / she may dispense  with  his  /  her
           service or may extend his / her  period  of  probation  by  such
           period as he may think fit, or reverse him  /  her  to  his  her
           former post, if he / she has been recruited  otherwise  than  by
           direct appointment, provided that the total period of  probation
           including extensions, if any, shall not exceed three years.

           iv)   Services spent on deputation to a corresponding or  higher
           post may be allowed to count towards  the  period  of  probation
           fixed under this rule, if there is a permanent  vacancy  against
           which such member can be confirmed.

      9.    Seniority of members of the services: - The Seniority  inter  se
      of members of the services holding the same class of posts and in  the
      same/identical grades of pay shall be determined by the dates of their
      confirmations in such posts provided that, if two or more members  are
      confirmed in the same class or post and in the same grades of  pay  on
      the same date, their seniority shall be determined as follows:-

           a)    A member appointed by promotion within the  service  shall
           be considered senior to member appointed otherwise.

           b)    A member appointed by transfer from another department  of
           any Government of India shall be senior to a member recruited by
           direct appointment.

           c)    In the case of members who  are  appointed  by  promotion,
           seniority shall be determined according to the seniority in  the
           appointment last held.

           d)    In the case of members who are recruited by transfers from
           other services or posts in Education Department of Government or
           any other Department of any government in India, seniority shall
           be  determined  according  to  seniority  in  the   appointments
           previously held in the cadre of that service.

           e)    In the case of members who were both or all  recruited  by
           direct appointment and shall  be  determined  according  to  the
           seniority before appointment and if their appointments were made
           on the same date, then  older  members  shall  be  senior  to  a
           younger member.

           f)    In the case of members, who are recruited by transfer from
           different departments, seniority shall be  determined  according
           to the scale pay preference being given  to  a  member  who  was
           drawing a higher rate or pay in his previous appointment and  if
           the rate of scale of pay drawn is  the  same,  an  older  member
           shall be senior to a younger one.”

                             ****

      THE 1998 RULES

      “6(1) Appointments to the posts in  the  Service  in  case  of  Middle
      School Headmaster, Social Studies Master, Science Master,  Mathematics
      Master, Agriculture Master, Commerce Master, Demonstrator in  Physical
      Education (P.T. Master), Home Science Master,  Art  Master  and  Music
      Master shall be made by Joint Director Schools.

      (2)   Appointments to the posts in the Service  in  case  of  Sanskrit
      Teacher, Hindi Teacher, Punjabi Teacher, Physical Training Instructor,
      Art and Craft Teacher (Drawing Teacher), Tailoring Teacher  and  Tabla
      Player shall be made by the respective District Education Officers  of
      the concerned district.



      10 (1) Persons appointed to any post in the Service  shall  remain  on
      probation  for  a  period  of  two  years,  if  appointed  by   direct
      recruitment, and one year if appointed otherwise, --
      Provided that:-
      (a) any period, after such  appointment,  spent  on  deputation  on  a
      corresponding or a higher post shall count towards the period of
      probation;


      (b) any period  of  work  in  equivalent  or  higher  rank,  prior  to
      appointment to any post in  the  Service,  may,  in  the  case  of  an
      appointment by transfer, at the direction of the appointing authority,
      be allowed to count towards the period of probation fixed  under  this
      rule; and


      (c) any period of officiating appointment shall be reckoned as  period
      spent on probation, but no person who has so officiated shall, on  the
      completion of the prescribed period of probation; be  entitled  to  be
      confirmed, unless he is appointed against a permanent vacancy.


      (2) If, in the opinion  of  the  appointing  authority,  the  work  or
      conduct  of  a  person  during  the  period  of   probation   is   not
      satisfactory, it may,


      (a) If such person is appointed by direct recruitment,  dispense  with
      the services; and


      (b) If such person is appointed otherwise, than by direct recruitment,
      -
      (i) revert him to his former post; or


      (ii) deal with him in such other manner as the terms and conditions of
      his previous appointment permit.


      (3) On the  completion  of  period  of  probation  of  a  person,  the
      appointing authority may:-


      (a) if  his work or conduct has, in its opinion, been satisfactory,-
      (i) confirm such person from the date of his appointment, if appointed
      against a permanent vacancy; or
      (ii) confirm such person from the date from which a permanent
      vacancy occurs, if appointed against a temporary vacancy; or
      (iii) declare that he has completed his probation  satisfactorily,  if
      there is no permanent vacancy; or


      (b) if his work or conduct has, in its opinion, been not satisfactory:-


      (i) dispense with his service, if appointed by direct recruitment,  if
      appointed otherwise, revert him to his former post or deal with him in
      such other manner as the terms and conditions of
      his previous appointment permit; or
      (ii) extend his period of probation and thereafter pass such order, as
      it could have passed on the expiry of the first period of probation;
      Provided that the total period of probation  including  extension,  if
      any, shall not exceed three years.

      11.   Seniority, interse of the  members  of  the  service,  shall  be
      determined by the length of continuous service  on  any  post  in  the
      service

      Provided that where there are different cadres  in  the  Service,  the
      seniority shall be determined separately for each cadre;

      Provided further that in  the  case  of  member  appointed  by  direct
      recruitment, the order of merit determined by the  Commission  or  any
      other recruiting authority as the case may be, shall not be  disturbed
      in fixing the seniority;

      Provided further that in the case of two or more members appointed  on
      the same date, their seniority shall be determined as follows:-

      (a) a member appointed by direct recruitment shall be senior to member
      appointed by promotion or by transfer;

      (b) a member appointed by  promotion  shall  be  senior  to  a  member
      appointed by transfer.

      (c) in the case of a member appointed by  promotion  or  by  transfer,
      seniority shall be determined  according  to  the  seniority  of  such
      members  in  the  appointment  from  which  they   are   promoted   or
      transferred; and

      (d) in the case  of  members  appointed  by  transfer  from  different
      cadres,  their  seniority  shall  be  determined  according  to   pay,
      preference being given to a member, who was drawing a higher  rate  of
      pay in his previous appointment, and if the rates  of  pay  drawn  are
      also the same, then by the length of their service in the appointments
      and if the length of such service is also same, the older member shall
      be senior to the younger member.”



      NOTIFICATION DATED 28.01.1970

                     “GENERAL ADMINISTRATION DEPARTMENT

                              GENERAL SERVICES

                                NOTIFICATION

                           The 28th January, 1970

            No.523-3GS-70/2068.—In  exercise  of  the  powers  conferred  by
      Article 309 of the Constitution of India, and in modification  of  all
      other  rules  in  this  behalf,  the  Governor   of   Haryana   hereby
      constitutes, with effect from the date  of  the  publication  of  this
      notification, Subordinate Services Selection Board.  The  constitution
      of the Board, the terms and  conditions  of  service  of  the  members
      thereof and its functions shall be as follows:

      6.   Functions :- All appointments to  non-gazetted  Class  III  posts
      under the Haryana Government,  except  appointments  of  officers  and
      employees of the Punjab and Haryana High Court provided for in Article
      229 of the Constitution of India, shall be made on the advice  of  the
      Board.

      Provided that the State Government shall be competent to  exclude  any
      such posts from the purview of the Board.”




      NOTIFICATION DATED 29.06.1973

                                  “PART-III

                             HARYANA GOVERNMENT

                      GENERAL ADMINISTRATION DEPARTMENT

                                Notification

                             The 29th June, 1973

            No.  G.S.R.88/Const./Art.309/73.—  In  exercise  of  the  powers
      conferred by article 309 of the Constitution of India, and  all  other
      powers enabling him in this behalf, the  Governor  of  Haryana  hereby
      makes  further  amendment   in   the   Haryana   Government,   General
      Administration Department, General Services, Notification  No.523-3GS-
      70/2068, dated the 28th January, 1970.

            In the said notification, for para 6, the following  para  shall
      be substituted, namely:-

      “6. Functions:-   The  Board  shall  be  consulted  on  the  following
      matters:-

      a) appointments to Class III posts under the State Government,  except
         appointments of officers and employees of the  Punjab  and  Haryana
         High Court provided for in  article  229  of  the  Constitution  of
         India;

      b) promotions and transfers  from  one  service  or  post  to  another
         service or post pertaining to Class III and Class IV  posts;

      c)  disciplinary  matters  pertaining  to  Class  III  and  Class   IV
         Government employees;

      d) methods of recruitment and the principles to be followed in  making
         appointments to Class III  and  Class  IV  posts  under  the  State
         Government; and

      e) appointments to posts carrying an initial pay of not less than  one
         hundred and fifty rupees per mensem and not more than three hundred
         and fifty rupees per mensem under a Municipal  Committee,  Notified
         Area Committee, Town Improvement Trust, Zila Parishad or  Panchayat
         Samiti except appointment of the Excecutive Officer of a  Municipal
         (Executive Officers) Act, 1931, or the Patiala Municipal (Executive
         Officers) Act, 2003 Bk.:

      Provided that it shall not  be  necessary  to  consult  the  Board  in
      respect of such posts and matters  as  the  State  Government  may  by
      notification, specify.”



11.   It is not in  dispute  that  till  the  framing  of  the  1998  Rules,
appointments to the posts of Masters and Teachers were governed by the  1955
Rules.  In terms of Rule 3 of the 1955 Rules, all appointments to  posts  in
the service were required to be made by  the  Director  with  the  exception
that the Divisional Inspector/Inspectorass of the School and  Principals  of
Government Colleges could make temporary or  officiating  appointment  to  a
post other than that of the  Headmaster  or  Headmistress  or  an  Assistant
District Inspector of Schools and the tenure of such appointment  could  not
exceed three months.  In terms of  Rule  8  of  the  1955  Rules,  a  person
appointed by direct appointment was required to be placed on  probation  for
one year  in  the  first  instance  and  on  completion  of  the  period  of
probation, the Director could confirm  the  probationer.   If  the  work  or
conduct of the probationer was  found  unsatisfactory,  the  Director  could
either terminate his/her service or extend the period of  probation  upto  a
maximum period of three years.  Clause 2 of Rule 8  postulated  counting  of
officiating service as period spent on probation.  The  basic  criteria  for
fixation of seniority embodied in Rule 9 was the date of confirmation.

12.   Rule 6(1) of the  1998  Rules  lays  down  that  the  Joint  Director,
Schools shall be competent to  make  appointment  to  the  posts  of  Middle
School  Headmaster,  Social  Studies  Master,  Science  Master,  Mathematics
Master,  Agriculture  Master,  Commerce  Master,  Demonstrator  in  Physical
Education (P.T. Master), Home Science Master, Art Master and  Music  Master.
Sub-rule (2) of Rule 6 postulates appointment  on  the  posts  of  Sanskrit,
Hindi and Punjabi Teacher,  Physical  Training  Instructor,  Art  and  Craft
Teacher (Drawing  Teacher),  Tailoring  Teacher  and  Tabla  Player  by  the
concerned District  Education  Officers.  Rule  10  of  the  1998  Rules  is
substantially similar to Rule 8 of the 1955 Rules and  lays  down  that  any
person appointed by direct recruitment  shall  remain  on  probation  for  a
period of 2 years which can be extended upto a maximum of three  years.   On
satisfactory  completion  of  the  period  of  probation,   the   appointing
authority  could  confirm  such  person  from  the  date  of  occurrence  of
permanent vacancy and if there was no such vacancy then grant a  declaration
that the appointee has satisfactorily completed  the  period  of  probation.
Rule 11 lays down that seniority inter se of the members  of  service  shall
be determined by the length of continuous service.  Third  proviso  to  this
rule and Clauses (a) to  (d)  of  that  proviso  regulate  the  fixation  of
seniority in different eventualities.

13.   An analysis of Notification dated 28.1.1970 shows  that  the  Governor
of Haryana had, in exercise of the powers  conferred  upon  him  by  Article
309, constituted the Board. The primary function of the  Board  is  to  give
advice in the matter of appointment to  all  non-Gazetted  Class  III  posts
under the State Government.  By Notification dated 29.6.1973, the  scope  of
the Board’s functions was enlarged and consultation with the Board was  made
mandatory in the matters of promotion to Class III  posts  under  the  State
Government; promotions and transfers from one service  or  post  to  another
service or post pertaining to Class III and Class IV,  disciplinary  matters
pertaining to Class III and Class IV employees, methods of  recruitment  and
the principles to be followed in making appointments to Class III and  Class
IV posts, etc.  By virtue of proviso to the  amended  Clause  6,  the  State
Government  is  empowered  to  issue  notification  to  dispense  with   the
requirement of consultation with the Board in  respect  of  such  posts  and
matters as may be specified therein.

14.    We  shall  now  consider  whether  the  respondents  were   regularly
appointed  as  Masters,  Physical  Training  Instructor  and  Hindi  Teacher
between 1994 and 1996, whether the competent  authority  should  have  taken
into consideration  their  total  length  of  service  for  the  purpose  of
fixation of seniority and whether the High Court rightly applied  the  ratio
of the judgments of this  Court  in  Direct  Recruit  Class  II  Engineering
Officers’ Association v.  State  of  Maharashtra  (supra)  and  Dr.  Chandra
Prakash v. State of U.P. (supra) for the purpose of directing refixation  of
the respondents’ seniority.

15.   A reading of order  dated  16.10.1995  issued  by  District  Education
Officer, Panipat makes it crystal clear that even though respondent  No.1  –
Vijay Singh was appointed as Science Master on the  recommendations  of  the
District Level Committee, his appointment was purely ad hoc  with  a  tenure
of  six  months  or  till  the  availability  of  a  candidate  for  regular
appointment, whichever was earlier.  The other  respondents  were  appointed
in  the  same  manner  with  similar  stipulation.   The  reason   why   the
respondents were appointed on purely ad-hoc basis is not far to  seek.   The
concerned  District  Education  Officers  did  send  requisitions   to   the
Employment Exchanges and appointments were made on  the  recommendations  of
the District Level Committee but all this was not  in  consonance  with  the
mandate of the 1955 Rules and Notifications dated 28.1.1970  and  29.6.1973.
At the cost of repetition, we deem it proper to mention  that  in  terms  of
Rule 3  of  the  1955  Rules,  only  the  Director  was  competent  to  make
appointments on the posts to which those  rules  were  applicable  with  the
exception  that  Divisional  Inspector/Inspectorass   of   School   or   the
Principals of  Government  Colleges  could  make  temporary  or  officiating
appointments on certain posts for a maximum period of three  months.   After
the Board was constituted vide Notification dated  28.1.1970,  the  Director
could make appointment only on the recommendation of the  Board  unless  the
State Government was to issue notification under  proviso  to  Clause  6  of
Notification dated 29.6.1973.   In terms of Rule 8 of the  1955

Rules, every person appointed by  direct  recruitment  was  required  to  be
placed on probation for a period of one year.  The respondents were  neither
appointed by the Director on the recommendations of the Board nor they  were
placed on probation.  As a matter of fact, they were appointed on purely  ad
hoc  basis  without  following  the   procedure   prescribed   for   regular
appointment.  Therefore, the mere fact that the ad hoc appointments  of  the
respondents  were  preceded  by  sending  requisitions  to  the   Employment
Exchanges and recommendations by the  District  Selection  Committee  cannot
lead to an inference that they were appointed on regular basis.

16.   It was neither the pleaded case of the respondents  nor  any  document
was produced before the High Court to show that  the  State  Government  had
amended the 1955 Rules and empowered the District Education Officer to  make
appointment on the posts of Masters, Physical Training Instructor and  Hindi
Teacher or the requirement of consultation  with  the  Board  was  dispensed
with by issuing notification under  proviso  to  Clause  6  of  Notification
dated 29.6.1973.  Unfortunately, the High Court  overlooked  the  fact  that
the respondents were neither appointed by the  competent  authority  on  the
recommendations made by  the  Board  nor  they  were  placed  on  probation.
Therefore, the conclusion recorded by the High Court that  the  respondents’
initial appointments were regular and, therefore, ad hoc service was  liable
to  be  counted  for  the  purpose  of  fixation  of  seniority  is  legally
unsustainable.

17.   The issue relating to fixation of seniority deserves to be  considered
from another angle.  In terms of Rule 9 of the  1955  Rules,  the  seniority
inter se of members of the service holding the same class of  posts  and  in
the same/identical grades of pay is required to be determined by  the  dates
of their confirmation.  Rule 11 of the 1998 Rules lays down  that  seniority
inter se of members of the service shall be  determined  by  the  length  of
continuous service on any post.  The respondents were  appointed  on  purely
ad hoc basis for six months and they continued to serve as ad  hoc  Masters,
Physical Training Instructor and Hindi Teacher till  the  regularization  of
their service w.e.f. 1.10.2003.  Therefore, their  seniority  could  not  be
fixed either under Rule 9 of the 1955 Rules or Rule 11 of the 1998 Rules  by
counting their service from the date of initial appointments.

18.   Before concluding, we consider it proper to notice  the  judgments  on
which reliance has been placed  by  learned  counsel  for  the  respondents.
This consideration needs to be prefaced with an observation that  the  cases
in which recruitment and  conditions  of  service  including  seniority  are
regulated by the law enacted by Parliament or the State Legislature  or  the
rules framed under Article 309 of the Constitution, the general  proposition
laid down in any judgment cannot be applied de hors the  relevant  statutory
provisions and dispute relating to seniority has to be resolved  keeping  in
view such provisions.

19.   In Direct Recruit Class II Engineering Officers’ Association v.  State
of Maharashtra & others  (supra),  the  Constitution  Bench  considered  the
dispute of seniority between the direct recruits and the  promotees  in  the
light of the provisions contained in the Bombay Service of Engineers  (Class
I and Class II) Recruitment Rules, 1960, the  Bombay  Service  of  Engineers
(Class I and Class II)  Recruitment  Rules,  1970,  the  Reorganised  Bombay
State Overseers and  Deputy  Engineers  Seniority  Lists  Rules,  1978,  the
Reorganised  Bombay  State  Assistant  Engineers  and  Executive   Engineers
Seniority  Lists  Rules,  1981,  the  Maharashtra   Service   of   Engineers
(Regulation of Seniority and Preparation and  Revision  of  Seniority  Lists
for Specified Period)  Rules,  1982,  etc.   After  examining  the  relevant
rules, the Court culled out the following propositions:
      “(A)  Once an incumbent is appointed to a post according to rule,  his
      seniority has to be counted from the date of his appointment  and  not
      according to the date of his confirmation.


      The  corollary  of  the  above  rule   is   that   where  the  initial
      appointment is only ad hoc and  not  according  to rules and made as a
      stop-gap arrangement, the officiation  in such  post cannot  be  taken
      into account for considering  the seniority.


      (B)   If the initial appointment is not made by following
      the procedure laid  down by the rules    but  the  appointee
      continues in the post uninterruptedly till the regularisation  of  his
      service in accordance  with  the  rules,  the  period  of  officiating
      service will be counted.


      (C)  When appointments  are made  from  more  than one source,  it  is
      permissible to fix  the  ratio  for  recruitment  from  the  different
      sources, and if rules are framed in this regard they  must  ordinarily
      be followed strictly.


      (D)  If it becomes impossible to adhere to the existing quota rule, it
      should be substituted by an appropriate rule to  meet the needs of the
      situation. In case,   however,   the  quota   rule   is  not  followed
      continuously for  a  number  of years  because it was impossible to do
      so the  inference  is irresistible that  the  quota  rule  had  broken
      down.


       (E) Where the quota rule has broken down and  the  appointments   are
      made from one source in excess of the quota,   but  are   made   after
      following  the  procedure  prescribed   by   the   rules    for    the
      appointment, the appointees  should  not  be pushed       down   below
      the appointees from  the  other  source inducted in the service  at  a
      later date.


      (F)  Where the rules permit the authorities to  relax  the  provisions
      relating to the quota, ordinarily a      presumption
      should be raised that there was  such  relaxation  when   there  is  a
      deviation from the quota rule.






      (G)  The quota for recruitment from the different  sources
      may  be prescribed by executive instructions, if  the  rules
      are silent on the subject.


        (H)   If  the       quota  rule  is  prescribed  by   an   executive
      instruction, and is not followed continuously for a number of   years,
      the inference is that  the   executive    instruction  has  ceased  to
      remain operative.


      (I)   The posts held by the permanent Deputy Engineers as well as  the
      officiating Deputy Engineers under the State of  Maharashtra  belonged
      to the single cadre of  Deputy Engineers.


      (J)   The decision  dealing  with  important  questions  concerning  a
      particular  service  given  after  careful  consideration  should   be
      respected rather than scrutinised for finding out any possible  error.
      It is not in the interest of Service to unsettle a settled position.”

20.   In State of West Bengal v. Aghore Nath (supra), the three Judge  Bench
considered an apparent contradiction in  conclusions  (A)  and  (B)  in  the
judgment of the Constitution Bench, and observed:

      “22.  There can be no doubt that these two conclusions have to be read
      harmoniously, and  conclusion  (B)  can  not  cover  cases  which  are
      expressly excluded by conclusion (A).   We may, therefore, first refer
      to conclusion (A).  It is clear from conclusion  (A)  that  to  enable
      seniority to be counted from the date of initial appointment  and  not
      according to the date of confirmation, the incumbent of the  post  has
      to  be initially appointed, according to rules.  The corollary set out
       in conclusion (A), then is, that where the  initial  appointment   is
      only ad hoc and not according to  rules   and  made   as   a  stop-gap
      arrangement,

      the  officiation  in such posts  cannot  be  taken into  account   for
      considering  the seniority.  Thus, the  corollary  in  conclusion  (A)
      expressly excludes the category of cases where the initial appointment
      is only ad hoc and not according to rules, being  made     only  as  a
      stop-gap arrangement.  The case of the writ petitioners squarely falls
      within this  corollary  in  conclusion  (A),  which   says   that  the
      officiation in such  posts  cannot  be taken into account for counting
      the seniority.”

      “25.  In  our opinion  the conclusion (B) was added to cover  over   a
      different  kind of situation, wherein the  appointments are  otherwise
      regular,   except  for  the   deficiency      of   certain  procedural
      requirements  laid down by  the  rules.    This   is  clear  from  the
      opening words of  the  conclusion  (B),   namely,  'if   the   initial
      appointment is not made by  following the procedure  laid down by  the
      rules' and the later  expression  'till   the  regularisation  of  his
      service in accordance  with the rules'.  We read conclusion  (B),  and
      it must be so read to reconcile with  conclusion  (A),  to  cover  the
      cases where the  initial  appointment  is  made  against  an  existing
      vacancy, not  limited  to a fixed period of time or  purpose   by  the
      appointment  order  itself,  and  is  made  subject  to the deficiency
      in  the  procedural  requirements  prescribed  by   the   rules    for
      adjudging suitability of the appointee  for  the  post   being   cured
      at    the  time  of  regularisation, the appointee being eligible  and
      qualified in every manner for a regular  appointment on  the  date  of
      initial  appointment  in such  cases.  Decision about  the  nature  of
      the   appointment, for determining whether it falls in this  category,
      has to be made on the basis of the terms of the initial    appointment
      itself  and  the  provisions  in  the  rules.    In  such  cases,  the
      deficiency in the procedural requirements laid down by the  rules  has
      to be cured at the first available opportunity, without any default of
      the  employee,  and  the  appointee  must   continue   in   the   post
      uninterruptedly  till  the  regularization  of  his       service,  in
      accordance with the rules.   In   such cases,      the appointee

      is not to blame for the deficiency  in  the   procedural  requirements
      under the rules at  the  time   of  his   initial   appointment,   and
      the  appointment  not-being limited   to  a  fixed period of  time  is
      intended  to  be  a regular appointment,  subject  to  the   remaining
      procedural  requirements   of  the  rules  being  fulfilled   at   the
      earliest. In  such  cases also, if there be any delay  in       curing
      the defects on  account  of  any  fault   of     the   appointee,  the
      appointee  would  not get the full benefit  of     the  earlier period
      on account of his default, the benefit being confined  only   to   the
      period for which he is not  to  blame.  This category   of   cases  is
      different from those covered  by   the corollary  in   conclusion  (A)
      which relates  to appointment only  on  ad  hoc basis  as  a  stop-gap
      arrangement  and not according   to  rules.   It  is,  therefore,  not
      correct to  say, that  the  present   cases   can  fall   within   the
      ambit  of conclusion (B), even though they are squarely covered by the
      corollary in conclusion (A).”



21.   In M.K.  Shanmugam  v.  U.O.I.  (supra),  another  three  Judge  Bench
referred to the aforementioned two judgments and observed:

      “If the adhoc selection is followed by  regular  selection,  then  the
      benefit of ad hoc service is not admissible if ad hoc  appointment  is
      in violation of the rules.  If the ad hoc appointment has been made as
      a stopgap arrangement and where there was a procedural irregularity in
      making appointments according  to  rules  and  that  irregularity  was
      subsequently rectified, the principle to be applied in that  case  was
      stated once again.  There is difficulty in the way of  the  appellants
      to fight out their case for seniority should be reckoned by reason  of
      the length of the service whether ad hoc or otherwise inasmuch as they
      had not been recruited regularly.  As stated earlier,  the  appellants
      were regularly found fit for promotion only in the year  1977  and  if
      that period is reckoned their cases could not be considered  as  found
      by the Tribunal.  The view expressed by this Court in these cases have
      been again considered in  the  decisions  in  Anuradha  Bodi  (Dr)  v.
      Municipal Corporation of Delhi (1998) 5 SCC 292, Keshav Deo  v.  State
      of U.P., (1999) 1 SCC 280, Major Yogendra Narain Yadav  v.  Bindeshwar
      Prasad, (1997) 2 SCC 150, I.K. Sukhija v. Union of India, (1997) 6 SCC
      406, and Govt. of A.P. v. Y. Sagareswara Rao, 1995 Supp  (1)  SCC  16,
      but all these decisions do not point out that in case  the  promotions
      had been made ad hoc and they  are  subsequently  regularized  in  the
      service in all the cases, ad hoc service should be  reckoned  for  the
      purpose of seniority.  It is only in those cases where initially  they
      had been recruited even though they have been  appointed  ad  hoc  the
      recruitment was subject to the same process as it had been done in the
      case of regular appointment and  that  the  same  was  not  a  stopgap
      arrangement.”




22.   In State of Haryana v.  Haryana  Veterinary  &  AHTS  Association  and
another (2000) 8 SCC 4,  the  three  Judge  Bench  considered  the  question
whether the ad hoc service rendered by  the  respondents  in  the  cadre  of
Assistant Engineers can be added to their regular service  for  the  purpose
of higher pay scale.  While reversing the judgment of the  majority  of  the
Full Bench which had ruled in favour of the  writ  petitioner  and  declared
that ad hoc service was to be clubbed  with  the  regular  service  for  the
purpose of grant of financial benefits, this Court held:

             “A  combined  reading  of  the  aforesaid  provisions  of   the
      Recruitment Rules puts the controversy beyond any doubt and  the  only
      conclusion which could be drawn from the aforesaid Rules is  that  the
      services  rendered  either  on  an  ad  hoc  basis  or  as  a  stopgap
      arrangement, as in the case in hand from 1980 to 1982 cannot  be  held
      to be regular service for getting the benefits of the revised scale of
      pay or of the selection grade under the government memorandum dated 2-
      6-1989 and 16-5-1990, and therefore, the majority judgment of the High
      Court must be held to be contrary to the aforesaid provisions  of  the
      Recruitment Rules, consequently  cannot  be  sustained.   The  initial
      letter of appointment dated 6-12-1979 pursuance  to  which  respondent
      Rakesh Kumar joined as am Assistant Engineer on an  ad  hoc  basis  in
      1980  was  also  placed  before  us.   The  said  appointment   letter
      unequivocally indicates that the offer  of  appointment  as  Assistant
      Engineer was on ad hoc basis and clauses 1 to 4  of  the  said  letter
      further provides that the appointment will be on an ad hoc basis for a
      period of 6 months from the date of joining and the salary was a fixed
      salary of Rs.400 p.m. in the  scale  of  Rs.400  to  Rs.1100  and  the
      services were liable to be terminated without any notice  and  at  any
      time without assigning any reason and that the  appointment  will  not
      enable the appointee any seniority or  any  other  benefit  under  the
      Service Rules for the time being in force and will not  count  towards
      increment in the time scale.  In view of the aforesaid stipulations in
      the offer of appointment itself we really fail to understand as to how
      the aforesaid period of service rendered on ad hoc basis can  be  held
      to be service on regular basis.  The conclusion of the high  Court  is
      contrary to the very terms and conditions stipulated in the  offer  of
      appointment and, therefore, the same cannot be sustained.”




23.    In  Dr.  Chandra  Prakash  v.  State  of  U.P.  (supra),  the   Court
interpreted the U.P.  Medical  Service  (Men’s  Branch)  Rules,  1945,  U.P.
Medical   Services   (Men’s   Branch)   (Amendment)   Rules,   1981,    U.P.
Regularisation of Ad Hoc Appointments (on Posts within the  Purview  of  the
Public Service Commission) Rules, 1979 and held that the appellants who  had
been appointed against substantive vacancies and were continuing from  1965-
1976 to 1983 and were enjoying all  the  benefits  of  regular  service  are
entitled to seniority from the date of initial appointment.  The Court  also
observed that the ‘rule of seniority’ had been interpreted by the Court  for
a long period of time and it would not be proper  to  upset  the  principles
laid down in other judgments.

24.   None of  the  aforesaid  judgments  can  be  read  as  laying  down  a
proposition of law that a person who is appointed on  purely  ad  hoc  basis
for a fixed period by an authority other than the one who  is  competent  to
make regular appointment to the service and such appointment is not made  by
the specified recruiting agency is entitled  to  have  his  ad  hoc  service
counted  for  the  purpose  of  fixation  of  seniority.    Therefore,   the
respondents, who were appointed as Masters in different  subjects,  Physical
Training Instructor and  Hindi  Teacher  on  purely  ad  hoc  basis  without
following the procedure prescribed under the 1955 Rules are not entitled  to
have their seniority fixed on the basis of total length of  service.   As  a
corollary to this, we hold that the direction given by the  High  Court  for
refixation of the respondents’  seniority by counting  the  ad  hoc  service
cannot be approved.

25.   In the result, the appeal is allowed, the impugned order is set  aside
and the writ petition filed by the respondents is  dismissed.   The  parties
are left to bear their own costs.


                                                         .………….….………………….…J.
                                   [G.S. Singhvi]






                                                         …………..….………………….…J.
                                               [Sudhansu Jyoti Mukhopadhaya]
New Delhi,
August 22, 2012.

The High Court of Andhra Pradesh held that, in Board of Trustees of the Port of Visakhapatnam vs. Presiding Officer, Permanent, Lok Adalat-cum-Secretary, District Legal Services Authority, Visakhapatnam and another reported in 2000(5) ALT 577, " The award is enforceable as a decree and it is final. In all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation or any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a Court on a regular suit by a Court on a regular trial, however, it is as equal and on par with a decree on compromise and will have the same binding effect and conclusive just as the decree passed on the compromises cannot be challenged in a regular appeal, the award of the Lok Adalat being akin to the same, cannot be challenged by any regular remedies available under law including invoking Article 226 of the Constitution of India challenging the correctness of the award on any ground. Judicial review cannot be invoked in such awards especially on the grounds as raised in this writ petition.The award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties.. We direct the Respondent herein to execute the sale deed within two weeks from today failing which the Appellant could get the sale deed executed though court as stipulated in the award. The respondent is now entitled to withdraw Rs. 9.5 lakhs from the Sub-Court Alapuzha. Though this is a fit case for awarding cost, we refrain from doing so in view of the relationship between the parties.

P.T. THOMAS V. THOMAS JOB [2005] INSC 384 (4 August 2005)

RUMA PAL & Dr. AR. LAKSHMANAN

(ARISING OUT OF S.L.P (C) No..20179/2003) Dr.AR. LAKSHMANAN,J.

Leave granted.

The above appeal is directed against the final order of the High Court of Kerala at Ernakulam dated 27.8.2003 in CRP No. 1136/2003 allowing the Revision Petition filed by the Respondent herein.

The Appellant and the Respondent are brothers, Respondent being the elder. They have another brother who is well employed in the United States.

The three brothers partitioned the property left behind by their father by metes and bounds. The Respondent was running a theatre. A part of the theatre fell in the property allotted to the appellant. Since Respondent did not vacate and give vacant possession to the Appellant, he was constrained to file a suit for a mandatory injunction for removal of the building and to surrender vacant possession. The Appellant also prayed for a decree for recovery of possession.

The appellant's suit was decreed as prayed for. When the matter was pending in appeal at the instance of the Respondent in the District Court, the dispute was referred to the Lok Adalat constituted under the Legal Services Authorities Act for resolution of the dispute. The matter was settled in the Lok Adalat. The award of the Lok Adalat dated 5.10.1999 provided for sale to the Appellant or his nominee of the property scheduled to the award after a period of one year and within a period of two years on payment of a sum of Rs. 9.5 lakhs to the Respondent and on default of the Respondent to execute the document, the appellant could get it executed through court. On the other hand, in case of default on the part of the appellant, he had to give up his aforesaid right and instead be entitled to be paid to Rs. 3.5 lakhs by the Respondent.

The Respondent did not execute the sale deed within the time fixed despite repeated requests by the Appellant. The Appellant, therefore, sent a lawyer's notice on 3.10.2001 to the Respondent calling upon him to execute the sale deed. Respondent did not receive the notice and the notice was returned unserved to the Appellant. The Appellant thereafter sent a telegram on 26.10.2001 requiring the Respondent to execute the sale deed and also sent him a copy of his earlier notice dated 3.10.2001 by certificate of posting. There was no response from the Respondent. The Appellant was, therefore, constrained to move for execution of the award by filing petition in the Trial Court, which was opposed on various grounds. The Subordinate Judge overruled all the objections and the appellant was directed to deposit a sum of Rs. 9.5 lakhs within three days i.e., on or before 8.4.2003. The Appellant, however, deposited the amount one day earlier on 7.4.2003 the next working day. But, the High Court allowed the Revision filed by the Respondent and dismissed the execution petition on grounds, which according to the Appellant, are irrelevant and incorrect. Hence, the Appellant preferred the above special leave petition.

We have heard Mr. TLV Iyer, learned senior counsel for the Appellant and Mr. M.P.Vinod, learned counsel for the Respondent and perused the pleadings, orders passed by the courts below and the Annexures filed along with the appeal.

Mr. TLV Iyer, learned senior counsel appearing for the Appellant submitted that the High Court has exceeded its jurisdiction under Section 115 C.P.C in entering into the investigation of questions of fact and appraisal of evidence in setting aside the well considered order of the Executing Court. He further submitted that the High Court is in error in holding that the Appellant did not have the funds with him to have the deed of sale executed in his favour and the reasoning and the premises on which such a conclusion is based are faulty and fallacious besides being beyond jurisdiction. It is further submitted that the Respondent had not performed his obligations by evincing his willingness to execute the sale deed on receipt of the amount of Rs. 9.5 lakhs. Concluding his arguments, Mr Iyer submitted that the view taken by the High Court would totally defeat the object and purposes of the Legal Services Authorities Act and render the decisions of the Lok Adalat meaningless.

Per contra, Mr. Vinod, learned counsel for the Respondent submitted that the appellant has not paid the sum of Rs. 9.5 lakhs after one year from the date of the award, namely, 5.10.1999 and at any rate within two years therefrom. It is further submitted that the appellant also did not deposit the amount before filing the execution petition as contemplated in the award.

Even when he was examined in court on 22.2.2003, he had not deposited the said amount. According to Mr. Vinod, the award of the Lok Adalat cannot be equated with a decree and it only incorporates an agreement between the parties and that in case of any violation of the said agreement, or the terms of the compromise recorded in the award, the parties lose their right to get the same executed and the compromise stands withdrawn. It is further argued that the Appellant admittedly had not produced any material to show that the Appellant had the resources to pay the said amount at any relevant point of time or that the said amount was ever offered to the respondent at any point of time and, therefore, the appellant is not entitled to any relief in this appeal.

It is further submitted that there is no effective service of any notice on the Respondent before 5.10.1999 and the only endorsement is that the Respondent was absent. It is submitted that the Appellant never had the money with him and the belated payment after the order of the executing court will not improve the case of the Appellant to prove his readiness and willingness to deposit a sum of Rs. 9.5 lakhs as agreed upon by him, and on the date specified, on the basis on which the matter was compromised before the Lok Adalat and an award was passed. Concluding his arguments, learned counsel submitted that there is no merit whatsoever in the grounds raised in this appeal and therefore, the appeal, which is clearly without any merits, deserves to be dismissed.

We have carefully considered the rival submissions made by both the learned counsel. We do not find any merit in the submissions made by learned counsel for the Respondent. From the evidence and the documents filed, we see bona fides on the part of the appellant in giving effect to the compromise arrived at between parties in the Lok Adalat. We also see absolute merits on the submissions made by learned senior counsel, Mr.

TLV Iyer.

It is seen from the records that the Appellant was compelled to file the suit for recovery of possession of Plot No. 2 since the Respondent herein refused to comply with the terms of the compromise arrived at between the parties. The suit was decreed on 26.7.1990 and appeal was filed by the Judgment Debtor Respondent before the District Court and during the pendency of the appeal the matter was compromised between parties on 5.10.1999. We have already extracted the terms of compromise in paragraph supra. It is thus clear that the decree holder Appellant has approached the executing court on the ground that the Judgment debtor/ Respondent failed to execute the sale deed after receiving Rs. 9.5 lakhs from the decree holder. Therefore the Appellant prayed before the Executing Court that he should be permitted to deposit Rs. 9.5 lakhs in that court and get the documents executed through court if the Judgment debtor failed to do so on issuance of notice for the purpose by the executing court.

The respondent submitted that the compromise arrived at is a conditional one and Judgment debtor is liable to execute the sale deed in favour of the decree holder only if he remits the amount as agreed, and since decree holder has failed to comply with the conditions the Judgment debtor is not bound by the terms of the compromise. On the other hand the respondent/J.D. was ready and willing to deposit Rs.3.5 lakhs before the executing court as per the terms of the compromise.

Before the executing Court witnesses were examined on both sides and Exhibit A1 to A8 and B1 were produced by the respective parties. The executing court, accepting the evidence of PW 1 came to the conclusion that the notice issued requiring the respondent to execute the document as submitted in the award was not received by the Judgment debtor and it has been returned unclaimed. It is seen that notice was an attempt to be served on the Judgment debtor on 4.10.2001 and since he was absent, intimation regarding the notice has been given and the above notice has been returned as unclaimed on 19.10.2001. The Appellant after return of the Exhibit A2 notice immediately sent a telegram to the Judgment debtor on 26.1.2001.

The receipt issued for the telegram and certified true copy of the telegram was marked as Exhibit A3 and A4. The Original telegram was produced on the side of the Respondent and marked as an Exhibit. By the telegram the Judgment debtor was intimated that the notice sent by the decree holder through his Advocate on 3.10.2001 was returned unclaimed and copy of that notice was being forwarded by certificate of posting and that he was always ready and willing to pay Rs. 9.5 lakhs and get the sale deed executed in terms of the award. The copy of the Exhibit A2 notice is marked as A5, the certificate of posting obtained for issuing the copy of notice along with the copy of the telegram is marked as Exhibit A6. Thus, it is clearly seen that the appellant decree holder has expressed his readiness and willingness to deposit the amount as per the award and get the document executed.

It is argued on the side of the Respondent that the Appellant has not sufficient fund to fulfill the obligation as per the award and that the Appellant had issued a notice and telegram so as to create some records in his favour that he is always willing and ready to pay the amount as per the award. It is submitted that it is only due to the default of the Appellant the execution of the sale deed has not taken place and therefore, the Appellant is not entitled to any relief in this appeal. The learned Subordinate Judge on a consideration of the entire evidence placed on record granted the Appellant three days time to deposit Rs. 9.5 lakhs before the said court upon which he could get the sale deed through court as stipulated in the award. The appellant as directed by the learned Subordinate Judge deposited the entire sum of Rs. 9.5 lakhs in the sub-court on 7.4.2003 as could be seen from Annxure 6.

We have also perused the order of the learned Single Judge of the High Court in revision. The learned Single Judge, in our view, has misunderstood the terms of the award. The obligation was on the Respondent to evince his willingness to execute the sale deed within two years and not vice-versa as assumed by the High Court. There was already a decree of ejectment against the Respondent in the suit in the trial Court and it was his appeal that was sought to be settled in the Lok Adalat. The settlement was a concession in his favour giving a breathing time to vacate and give vacant possession. Therefore, the initiative had to come from the Respondent after offering to execute the sale deed where upon it became necessary to comply with his obligations. However, without taking any initiative the Respondent has adopted the delaying tactics by alleging that the appellant was not able to provide the requisite funds for purchase and forgetting the facts that the Appellant's brother is in USA and providing the requisite funds for purchase. It was he, in fact, who had provided the amount which was deposited on 7.4.2003 and not on 8.4.2003 as assumed by the High Court. It is, thus, seen that the Appellant has performed his obligation. He had sent the notice on 3.10.2001 and it was 4.10.2001 well before the expiry of time on 5.10.2001. Though the notice was correctly addressed and despite the intimation by the post office, the notice was not accepted by the Respondent and was returned unserved. In such circumstances, the presumption of law is that the notice has been served on the Respondent.

The High Court, in our view, has also misinterpreted Section 27 of the Post Office Act. The requirement of Section has been complied with in this case. The reasoning of the High Court on this issue is not correct and not in accordance with factual position. In the notice issued, the Postman has made the endorsement. This presumption is correct in law. He had given notice and intimation. Nevertheless, the respondent did not receive the notice and it was returned unserved. Therefore, in our view, there is no obligation cast on the appellant to examine the Postman as assumed by the High Court. The presumption under Section 114 of the Evidence Act operates apart from that under the Post Office Act.

In our opinion, the award of the Lok Adalat is fictionally deemed to be decrees of Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This, in our opinion, includes the powers to extend time in appropriate cases. In our opinion, the award passed by the Lok Adalat is the decision of the court itself though arrived at by the simpler method of conciliation instead of the process of arguments in court. The effect is the same. In this connection, the High Court has failed to note that by the award what is put an end to is the appeal in the District Court and thereby the litigations between brothers forever.

The view taken by the High Court, in our view, will totally defeat the object and purposes of the Legal Services Authorities Act and render the decision of the Lok Adalat meaningless.

Section 21 of the Legal Services Authorities Act, 1987 reads as follows :- "21. AWARD OF LOK ADALAT. 2[(1)] Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court or, as the case may be, an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred on it under sub-section (1) of Sec.20, the court fee paid in such cases shall be refunded; in the manner provided under the Court Fees Act, 1870 (7 of 1870) (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any Court against the award.

Section 22 reads thus :- "22. POWERS OF LOK ADALATS - (1) The Lok Adalat shall, for the purposes of holding any determination under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely :

(a) the summoning and enforcing the attendance of any witness and examining him on oath;

(b) the discovery and production of any document ;

(c) the reception of evidence on affidavits ;

(d) the requisitioning of any public record or document or copy of such record or document from any Court or Office; and (e) such other matters as may be prescribed.

(2) Without prejudice to the generality of the powers contained in sub-section (1), every Lok Adalat shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it.

(3) All Proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Secs. 193, 219 and 228 of the Indian Penal Code (45 of 1860) and every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec. 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2) of 1974).

UNREPORTED JUDGEMENTS 2004 (2) VOL 37." What is Lok Adalat? :

"The "Lok Adalat" is an old form of adjudicating system prevailed in ancient India and it's validity has not been taken away even in the modern days too. The word 'Lok Adalat' means 'People Court'. This system is based on Gandhian Principles. It is one of the components of ADR system. As the Indian Courts are over burdened with the backlog of cases and the regular Courts are to decide the cases involve a lengthy, expensive and tedious procedure. The Court takes years together to settle even petty cases. Lok Adalat , therefore provides alternative resolution or devise for expedious and inexpensive justice.

In Lok Adalat proceedings there are no victors and vanquished and, thus, no rancour.

Experiment of 'Lok Adalat' as an alternate mode of dispute settlement has come to be accepted in India, as a viable, economic, efficient and informal one.

LOK ADALAT is another alternative to JUDICIAL JUSTICE. This is a recent strategy for delivering informal, cheap and expeditious justice to the common man by way of settling disputes, which are pending in Courts and also those, which have not yet reached Courts by negotiation, conciliation and by adopting persuasive, common sense and human approach to the problems of the disputants, with the assistance of specially trained and experienced Members of a Team of Conciliators." Benefits Under Lok Adalat:

1. There is no Court fee and if Court fee is already paid the amount will be refunded if the dispute is settled at Lok Adalat according to the rules.

2. The basic features of Lok Adalat are the procedural flexibility and speedy trial of the disputes. There is no strict application of procedural laws like Civil Procedure Code and Evidence Act while assessing the claim by Lok Adalat.

3. The parties to the dispute can directly interect with the Judge through their Counsel which is not possible in regular Courts of law.

4. The award by the Lok Adalat is binding on the parties and it has the status of a decree of a Civil Court and it is non- appealable which does not causes the delay in the settlement of disputes finally.

In view of above facilities provided by the 'Act' Lok Adalats are boon to the litigating public they can get their disputes settled fast and free of cost amicably.

AWARD OF LOK DALAT :- The Lok Adalat shall proceed and dispose the cases and arrive at a compromise or settlement by following the legal principles, equity and natural justice. Ultimately the Lok Adalat passes an award, and every such award shall be deemed to be a decree of Civil Court or as the case may be which is final.

AWARD OF LOK ADALAT SHALL BE FINAL :- The Lok Adalat will passes the award with the consent of the parties, therefore there is no need either to reconsider or review the matter again and again, as the award passed by the Lok Adalat shall be final. Even as under Section 96(3) of C.P.C. that "no appeal shall lie from a decree passed by the Court with the consent of the parties". The award of the Lok Adalat is an order by the Lok Adalat under the consent of the parties, and it shall be deemed to be a decree of the Civil Court, therefore an appeal shall not lie from the award of the Lok Adalat as under Section 96(3) C.P.C.

In Punjab National Bank vs. Lakshmichand Rah reported in AIR 2000 Madhya Pradesh 301, 304, the High Court held that "The provisions of the Act shall prevail in the matter of filing an appeal and an appeal would not lie under the provisions of Section 96 C.P.C. Lok Adalat is conducted under an independent enactment and once the award is made by Lok Adalat the right of appeal shall be governed by the provisions of the Legal Services Authorities Act when it has been specifically barred under Provisions of Section 21(2), no appeal can be filed against the award under Sec.96 C.P.C." The Court further stated that "It may incidentally be further seen that even the Code of Civil Procedure does not provide for an appeal under Section 96(3) against a consent decree. The Code of Civil Procedure also intends that once a consent decree is passed by Civil Court finality is attached to it.

Such finality cannot be permitted to be destroyed, particularly under the Legal Services Authorities Act, as it would amount to defeat the very aim and object of the Act with which it has been enacted, hence, we hold that the appeal filed is not maintainable.

The High Court of Andhra Pradesh held that, in Board of Trustees of the Port of Visakhapatnam vs. Presiding Officer, Permanent, Lok Adalat-cum-Secretary, District Legal Services Authority, Visakhapatnam and another reported in 2000(5) ALT 577, " The award is enforceable as a decree and it is final. In all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation or any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a Court on a regular suit by a Court on a regular trial, however, it is as equal and on par with a decree on compromise and will have the same binding effect and conclusive just as the decree passed on the compromises cannot be challenged in a regular appeal, the award of the Lok Adalat being akin to the same, cannot be challenged by any regular remedies available under law including invoking Article 226 of the Constitution of India challenging the correctness of the award on any ground. Judicial review cannot be invoked in such awards especially on the grounds as raised in this writ petition.

The award of Lok Adalat is final and permanent which is equivalent to a decree executable, and the same is an ending to the litigation among parties.

In Sailendra Narayan Bhanja Deo vs. The State of Orissa, AIR 1956 A Judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. (1895) 1 Ch.37 & 1929 AC 482, Rel. on;

In 'In re South American and Mexican Co., Ex. Parte Bank of England', (1895) 1 Ch 37 ), it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. Upholding the judgment of Vaughan Williams,J Lord Herschell said at page 50 :- "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end.

And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action." To the like effect are the following observations of the Judicial Committee in 'Kinch v. Walvott', 1929 AC 482 at p.493 (D):- "First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent , not discharged by mutual agreement, and remaining unreduced , is as effective as an order of the Court made otherwise than by consent and not discharged on appeal." The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the cases of ' Secy. Of State v. Ateendranath Das', 63 Cal 550 at p. 558 (E) ; - ' Bhaishanker v. Moraji', 36 Bom 283 (F) and ' Raja Kumara Venkata Perumal Raja Bahadur', v. Thatha Ramasamy Chetty', 35 Mad 75 (G). In the Calcutta case after referring to the English decisions the High Court observed as follows :

"On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusion arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded.

When we say "every step in the reasoning" we mean the findings on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the particular case will operate as estoppel by judgment." The Civil Procedure Code contains the following provisions:

"Order 23 Rule 3 provides for compromise of suit where it is proved to the satisfaction of the Court that a suit has been adjusted wholly in part by any lawful agreement or compromise, written and signed by the parties. The Court after satisfying itself about the settlement, it can convert the settlement into a judgment decree." We have already discussed about the steps taken by the appellant to serve notice on the respondent and the steps taken by him to perform his obligations and sending of the notice and telegram etc. would not have been done unless the appellant was ready with his obligations and the money all along. The appellant had waited till almost the last day for the respondent to perform his obligations. The High Court, in our view, has failed to note that the courts attempt should be to give life and enforceability to the compromise award and not to defeat it on technical grounds. This is a fit case, in our view, where the Respondent ought to have been directed to execute the sale deed by the extended time, if necessary. The High Court is also not correct in holding that the Court has no jurisdiction to extend the time. In our view, the learned Subordinate Judge has rightly extended the time for depositing the money which the High Court has wrongly interfered with.

We, therefore, hold that the order passed by the High Court in C.R.P.

1136/2003 is liable to be set aside. We do so accordingly. We direct the Respondent herein to execute the sale deed within two weeks from today failing which the Appellant could get the sale deed executed though court as stipulated in the award. The respondent is now entitled to withdraw Rs. 9.5 lakhs from the Sub-Court Alapuzha. Though this is a fit case for awarding cost, we refrain from doing so in view of the relationship between the parties.

The appeal is allowed. No costs.

“13-B.Divorce by mutual consent – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment)Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.. It is quite clear from the materials on record that although the marriage between the parties was solemnized on 26.3.2011, within 3 months of the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act, 1955, for a decree of nullity of the marriage. Thereafter, they have not been able to live together and lived separately for more than 1 year. In effect, there appears to be no marital ties between the parties at all. It is only the provisions of Section 13-B(2) of the aforesaid Act which is keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13-B for grant of a decree of dissolution of marriage by the mutual consent is present in the instant case. It is only on account of the statutory cooling period of six months that the parties have to wait for a decree of dissolution of marriage to be passed. 13. In the above circumstances, in our view, this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months. 14. We, accordingly, allow the appeal and also convert the pending proceedings under Section 12 of the Hindu Marriage Act, 1955, before the Additional District Judge-01, West Delhi, into one under Section 13-B of the aforesaid Act and by invoking our powers under Article 142 of the Constitution, we grant a decree of mutual divorce to the parties and direct that the marriage between the parties shall stand dissolved by mutual consent. The proceedings before the Additional District Judge-01, West Delhi, being HMA No.204 of 2012, is withdrawn to this Court on consent of the parties and disposed of by this order. We, accordingly, allow the appeal and also convert the pending proceedings under Section 12 of the Hindu Marriage Act, 1955, before the Additional District Judge-01, West Delhi, into one under Section 13-B of the aforesaid Act and by invoking our powers under Article 142 of the Constitution, we grant a decree of mutual divorce to the parties and direct that the marriage between the parties shall stand dissolved by mutual consent. The proceedings before the Additional District Judge-01, West Delhi, being HMA No.204 of 2012, is withdrawn to this Court on consent of the parties and disposed of by this order.

|REPORTABLE        |

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.5946      OF 2012
                   (Arising out of SLP(C)No.21084 of 2012)



1 Devinder Singh Narula                    … Appellant



           Vs.





           2 Meenakshi Nangia                         … Respondent





                               J U D G M E N T



ALTAMAS KABIR, J.


   1. Leave granted.


   2. This appeal arises out of an order passed by the  Additional  District
      Judge-01,  West  Delhi,  on  13.4.2012  in  HMA   No.204/2012,   while
      entertaining a joint petition filed by the parties under Section  13-B
      of the Hindu Marriage Act, 1955.  On such  petition  being  presented,
      the learned Court below  posted  the  matter  on  15.10.2012  for  the
      purpose of second motion, as contemplated under Section  13-B  of  the
      aforesaid Act, which is extracted hereinbelow for reference:-
        “13-B.Divorce by mutual consent – (1) Subject to the provisions  of
        this Act a petition for dissolution of  marriage  by  a  decree  of
        divorce may be presented to the district Court by both the  parties
        to a marriage together, whether such marriage was solemnized before
        or after the commencement  of  the  Marriage  Laws  (Amendment)Act,
        1976, on the ground that they have been  living  separately  for  a
        period of one year or more, that they have not been  able  to  live
        together and that they  have  mutually  agreed  that  the  marriage
        should be dissolved.


   3. The Section itself provides for a cooling period of six months on  the
      first motion being moved, in the event the parties changed their minds
      during the said period. Accordingly, after the initial motion and  the
      presentation of the petition  for  mutual  divorce,  the  parties  are
      required to wait for a period of six months before the  second  motion
      can be moved, and at that point of time, if the parties have  made  up
      their minds that they would be unable to  live  together,  the  Court,
      after making such inquiry as it may consider fit, grant  a  decree  of
      divorce declaring the marriage to be dissolved with  effect  from  the
      date of the decree.

   4. Aggrieved by the said order of the learned Additional District  Judge,
      fixing the date of the 2nd motion after six months, the petitioner has
      moved this Court by way of this appeal, relying on a decision of  this
      Court in Anil Kumar Jain vs. Maya Jain [(2009) 10  SCC  415],  whereby
      after arriving at a conclusion that the marriage between  the  parties
      had broken down irretrievably, this Court felt justified to invoke its
      powers under Article 142 of the Constitution.

   5. On behalf of both the parties it was urged that  since  more  than  18
      months had elapsed since the original petition under Section 13 of the
      Hindu Marriage Act, 1955, have been filed, the said  period  could  be
      counted towards the cooling period  of  six  months  stipulated  under
      Section 13-B of the above Act.  It was urged that  by  such  reckoning
      the parties have already completed the waiting period of  six  months,
      as envisaged under Section 13-B of the Act.

   6. It was also urged that the other conditions contained in  Section  13-
      B(1) of the Act had also been satisfied as the parties had been living
      separately for more than a year  and  had  mutually  agreed  that  the
      marriage should be dissolved.   It  was  urged  that  except  for  the
      formality of not having made an application under  Section  13-B,  the
      other criteria had been  duly  fulfilled  and  having  regard  to  the
      language of Section 13-B, a decree of dissolution of the  marriage  by
      way of mutual divorce should not be denied to the parties, since  four
      months out of waiting period of six months contemplated under  Section
      13-B had already been completed.

   7. It was contended that as was done in  the  case  of  Anil  Kumar  Jain
      (supra), this Court could invoke its powers under Article 142  of  the
      Constitution in the best interest of the parties. It  was  urged  that
      technicality should be tampered by pragmatism, if substantive  justice
      was to be done to the parties.

   8. On behalf of the State it was submitted that in view of the  statutory
      provisions, the prayer being made on behalf of the petitioner and  the
      respondent wife should not  be  entertained  as  that  would  lead  to
      confusion in the minds of the public and would be against  the  public
      interest.
   9. We have carefully considered the submissions made  on  behalf  of  the
      parties and have also considered our decision  in  Anil  Kumar  Jain’s
      case (supra).  It is no doubt true that the  Legislature  had  in  its
      wisdom stipulated a cooling period of six  months  from  the  date  of
      filing of a petition for mutual divorce till such divorce is  actually
      granted, with the intention that it  would  save  the  institution  of
      marriage. It is also true that the intention of the Legislature cannot
      be faulted with, but there may  be  occasions  when  in  order  to  do
      complete justice to the parties it becomes necessary for this Court to
      invoke its powers under Article 142 in an irreconcilable situation. In
      fact, in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC 243],  which
      was considered in Anil Kumar Jain’s case, after living separately  for
      many years and 11 years after initiating proceedings under Section  13
      of the Hindu Marriage Act,  the  parties  filed  a  joint  application
      before this Court for leave to  amend  the  divorce  petition  and  to
      convert the same into a proceeding under  Section  13-B  of  the  Act.
      Treating the petition as one under Section 13-B of the aforesaid  Act,
      this  Court  by  invoking  its  powers  under  Article  142   of   the
      Constitution, granted a decree of mutual divorce at the stage  of  the
      SLP itself.  In different cases in different  situations,  this  Court
      had invoked its powers under Article 142 of the Constitution in  order
      to do complete justice between the parties.

  10. Though we are not inclined to accept the  proposition  that  in  every
      case of dissolution of marriage under Section  13-B  of  the  Act  the
      Court  has  to  exercise  its  powers  under  Article   142   of   the
      Constitution,  we  are  of  the  opinion  that  in  appropriate  cases
      invocation of such power would not be unjustified and may  even  prove
      to be necessary.  The question with which we are faced is whether this
      is one of such cases?

  11. As will appear in the averments made in  this  appeal,  the  appellant
      filed a petition under  Section  12  of  the  Hindu  Marriage  Act  on
      1.6.2011 on the ground that the marriage contracted on 26.3.2011,  was
      a nullity; that the parties had been  living  separately  since  their
      marriage and have not cohabitated with each other since  1.6.2011  and
      in future  also  they  could  never  live  together  under  one  roof.
      According to the parties, they are residing separately from each other
      for the last  one  year  and  the  respondent  was  presently  working
      overseas in Canada.  It is with such object in mind  that  during  the
      pendency  of the proceedings under Section 12 of the Act  the  parties
      agreed to mediation  and   during  mediation  the  parties  agreed  to
      dissolve their marriage by filing a petition under Section 13-B of the
      above Act for grant of divorce by  mutual consent.  In the proceedings
      before the Mediator, the parties agreed to move appropriate  petitions
      under Section 13-B(1) and 13-B(2) of the Act.  A report was  submitted
      by the Mediator of the Mediation Centre of the Tis  Hazari  Courts  to
      the Court in the pending HMA No.239 of 2011.   It is pursuant to  such
      agreement during the mediation proceedings  that  an  application  was
      filed by the parties  in  the  aforesaid  pending  HMA  on  15.12.2011
      indicating that they had settled  the  matter  through  the  mediation
      centre and that they would be filing a petition for divorce by  mutual
      consent on or before 15.4.2012.  On the strength of the said petition,
      the HMA proceedings were disposed of as  withdrawn.  Subsequently,  on
      13.4.2012 the parties filed a joint petition under Section 13-B of the
      Act on which the order came to be passed  by  the  learned  Additional
      District Judge -01, West Delhi, fixing the date for the second  motion
      on 15.10.2012.

  12. It is quite clear from the  materials  on  record  that  although  the
      marriage between the parties was solemnized  on  26.3.2011,  within  3
      months of the marriage the petitioner filed a petition  under  Section
      12 of the Hindu Marriage Act, 1955, for a decree  of  nullity  of  the
      marriage.  Thereafter, they have not been able to  live  together  and
      lived separately for more than 1 year.  In effect, there appears to be
      no marital ties between the parties at all.  It is only the provisions
      of Section 13-B(2) of the aforesaid Act which is  keeping  the  formal
      ties of marriage between the parties   subsisting  in  name  only.  At
      least the condition indicated in Section 13-B for grant of a decree of
      dissolution of marriage by  the  mutual  consent  is  present  in  the
      instant case.  It is only on account of the statutory  cooling  period
      of six  months  that  the  parties  have  to  wait  for  a  decree  of
      dissolution of marriage to be passed.

  13. In the above circumstances, in our view, this is one  of  those  cases
      where we may invoke and exercise the  powers  vested  in  the  Supreme
      Court  under  Article  142  of  the  Constitution.   The  marriage  is
      subsisting by a tenuous thread on account of the statutory cooling off
      period, out of which four months have already expired.   When  it  has
      not been possible for the parties to live together  and  to  discharge
      their marital obligations towards each other for more than  one  year,
      we see no reason to continue the agony of the parties for another  two
      months.

  14. We, accordingly,  allow  the  appeal  and  also  convert  the  pending
      proceedings under Section 12 of the Hindu Marriage Act,  1955,  before
      the Additional District Judge-01, West Delhi, into one  under  Section
      13-B of the aforesaid Act and by invoking our powers under Article 142
      of the Constitution, we grant  a  decree  of  mutual  divorce  to  the
      parties and direct that the marriage between the parties  shall  stand
      dissolved by mutual consent. The  proceedings  before  the  Additional
      District Judge-01, West Delhi, being HMA No.204 of 2012, is  withdrawn
      to this Court on consent of the parties and disposed of by this order.

  15. In the facts of the case, the parties shall bear their own costs.



                                                     ………………………………………………………J.
                                     (ALTAMAS KABIR)





                                                     ………………………………………………………J.
                                     (J. CHELAMESWAR)
New Delhi
Dated:22.8.2012.

-----------------------
10

for the purpose of providing a regulatory mechanism at the State level and for working as an interface between the State Government and the central regulatory bodies for the purpose of ensuring appropriate standards of teaching, examination, research, extension programme, protection of interest of students and reasonable service conditions of the employees. The appellant was established under Section 9 of the Madhya Pradesh Niji Vishwavidyalaya (Sthapana Avam Sanchalan) Adhiniyam, 2007 (for short, ‘the Act’) as amended by the Madhya Pradesh Niji Vishwavidyalaya (Sthapana Avam Sanchalan) Sanshodhan Adhiniyam, 2011. In terms of Section 9(2) of the Act, the appellant is deemed to have been incorporated with effect from 4.5.2011 i.e. the date on which the Amendment Act was published in the official gazette. In the result, the appeal is dismissed. Now, Writ Petition No.22021/2011 be listed before the Division Bench of the High Court and be heard along with Writ Petition No.2386/2012. We request the concerned Bench of the High Court to make an endeavour to dispose of both the writ petitions as early as possible but latest within a period of three months from the date of receipt/production of copy of this order. It is made clear that the parties shall be free to raise all legally permissible contentions and the High Court shall decide the writ petitions without being influenced by the observations made by the learned Single Judge in the impugned order.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 5920  OF 2012
                 (Arising out of SLP (C) No. 11883 of 2012)



People’s University                                      … Appellant

                                   versus



State  of   Madhya   Pradesh   and   another                               …
Respondents



                               J U D G M E N T

G. S. Singhvi, J.

1.    Leave granted.

2.    This appeal is directed against order dated 28.3.2012  passed  by  the
learned Single Judge of the Madhya Pradesh High  Court  whereby  he  allowed
the review petition filed by respondent No.1, recalled order dated  6.1.2012
passed in Writ Petition No.22021/2011 and issued direction  for  listing  of
the same before the Division Bench.

 3.   The appellant was established under Section 9 of  the  Madhya  Pradesh
Niji Vishwavidyalaya (Sthapana Avam Sanchalan) Adhiniyam, 2007  (for  short,
‘the Act’) as amended by the Madhya Pradesh Niji  Vishwavidyalaya  (Sthapana
Avam Sanchalan) Sanshodhan Adhiniyam, 2011.  In terms  of  Section  9(2)  of
the Act, the appellant is deemed to have been incorporated with effect  from
4.5.2011 i.e. the date on which the  Amendment  Act  was  published  in  the
official gazette.

4.    After its establishment and incorporation, the  appellant  framed  the
First Statutes under Section 26 and the First Ordinances  under  Section  28
of the Act and submitted the same to the Madhya Pradesh  Private  University
Regulatory Commission (for short, ‘the Commission’), which  was  established
by the State Government under Section 36(1) of the Act for  the  purpose  of
providing a regulatory mechanism at the State level and for  working  as  an
interface between the State Government and  the  central  regulatory  bodies
for the purpose of ensuring appropriate standards of teaching,  examination,
research, extension  programme,  protection  of  interest  of  students  and
reasonable service conditions of the employees.   The  First  Ordinances  of
the appellant were approved by the Commission  and  were  forwarded  to  the
State  Government  vide  letter  dated  23.9.2011  for  publication  in  the
official  gazette.  The  First  Statutes  framed  by  the   appellant   were
provisionally approved by the Commission and sent to  the  State  Government
vide letter dated 24.10.2011 with  a  request  that  the  same  may  be  got
examined from the Law Department and made available to the  Commission  with
the amendment, if any. In that letter it  was  also  mentioned  that  if  no
amendment was proposed by the State Government then the  First  Statutes  be
published in the official gazette as per the requirement of  Section  35  of
the Act.  The English translation of that letter, which has been filed  with
the special leave petition as Annexure P-6, is reproduced below:

                 “MADHYA PRADESH PRIVATE UNIVERSITY

                            REGULATORY COMMISSION

                                Bhopal (M.P.)

        No.   /M.P.P.U.R.Commission, Bhopal         Date:24/10/2011

        To

            The Chief Secretary

            State of M.P.

            Higher Education Department

            Ministry, Bhopal.

        Sub: Publication of First Statutes presented by the Peoples
          University in the Gazette.

              In compliance of the provisions of Para 26(2) of M.P.  Private
        University (Establishment & Control) Act, 2007, the  First  Statutes
        recommended by the Administrative Body  of  Peoples  University  and
        provisionally recommended by the Commission  and  its  two  attested
        copies are hereby attached and sent.

              In this regard it is kindly requested that there is  no  legal
        advisor available in the Commission.  Therefore, it would be  proper
        to request from the legal department to  carry  out  examination  of
        these statutes and make available  to  the  Commission  through  the
        State Government along with the amendment which has been  presented,
        so that these amendments may be presented  in  the  meeting  of  the
        commission and after receiving the recommendation of the  commission
        these  shall  be  sent  for  publication  in  the  Gazette.   If  no
        amendment/suggestion is recommended by the  legal  department,  then
        kindly oblige to get it published in the gazette under Section 35 of
        the Act considering it recommended by the Commission in final form.

        (Recommended by the Chairman)

        Encl: Statutes in two copies

                                              Sd/-illegible

                                                 (Dr.      P.K.       Khare)



                                              Secretary

        Endorsement No.556/M.P.P.U.R.Commission, Bhopal

        Copy to:                              Dated 24/10/2011

        Registrar Peoples University Bhanpur,  Peoples  Campus,  Bhopal  for
        necessary information.

                                                  Sd/-illegible

                                                 (Dr.      P.K.       Khare)



                                              Secretary”

        (Note: The word ‘recommendation/recommended’ used in  letters  dated
        23.9.2011 and 24.10.2011 does not represent the correct  translation
        of the original version in Hindi in which the  word  ‘anumodan’  has
        been used and the English translation of that  word  is  ‘approval’.
        Likewise, the word ‘Para’ used before figure 26(2) is  not  correct.
        The correct word should have been ‘Section’)

5.    After 1½ months, the Registrar of  the  appellant  sent  letter  dated
7.12.2011 to the Principal Secretary, Government of Madhya  Pradesh,  Higher
Education Department for publication of the First  Statutes  and  the  First
Ordinances.  After another  17  days,  the  appellant  filed  Writ  Petition
No.22021/2011 and prayed for issue of a mandamus to respondent No.1  to  get
the First Statutes and  the  First  Ordinances  published  in  the  official
gazette. (The date mentioned in the copy of the writ petition  annexed  with
the special leave petition as Annexure P-8 is 24.12.2011.)

6.    The learned Single Judge before whom the writ petition was  listed  on
29.12.2011 ordered notice to the respondents for 4.1.2012.  In  the  written
statement filed on behalf of respondent  No.2  on  2.1.2012,  reference  was
made to Sections 7, 8, 9, 26, 28 and 35 of the Act and it was  averred  that
the appellant had made admissions in complete violation of  the  undertaking
given in terms of Section 7 (iv) of the Act despite the  fact  that  it  was
repeatedly warned vide communications dated 26.3.2011, 30.7.2011,  8.9.2011,
9.11.2011 and 30.11.2011 not to do  so.  However,  the  Commission  admitted
that it had sent  letters  dated  23.9.2011  and  24.10.2011  to  the  State
Government in the matter of publication of  the  First  Ordinances  and  the
First Statutes.

7.    The writ petition was listed for admission hearing on 6.1.2012,  i.e.,
two days after the date specified in the notice.  On that day,  the  counsel
appearing for  respondent  No.1  sought  time  to  seek  instructions.   The
learned Single Judge did not accept his request and finally disposed of  the
writ petition by recording the following order:

      “Heard on admission.

      This Court vide order dated 29.12.2011 directed  issuance  of  Hamdast
      notices to the respondents,  returnable  within  a  week  and  further
      directed listing of this petition for final  disposal  on  04.01.2012.
      Learned Counsel for the petitioner has filed memo  of  acknowledgement
      indicating that the Hamdast notices were  served  on  the  respondents
      well within time. i.e. on 30.12.2011. The respondent No. 2 has already
      filed a return.

      By this petition the petitioner has made a prayer to direct respondent
      no. 1 to get the First Statute and First Ordinance of  the  petitioner
      University, duly approved by the respondent No.  2  published  in  the
      official Gazette within 7 days.  It  is  contended  that  as  per  the
      provisions of Madhya Pradesh Niji  Vishwa  Vidyalaya  (Sthapana  Avam.
      Sanchalan) Adhiniyam, 2007 (herein after referred to  as  ‘Act’),  the
      powers are given to the respondent No. 2 to  make  First  Statute  and
      First Ordinance, which are required to be approved by  the  respondent
      No. 2 and the same will come into force only after publication in  the
      official Gazette of Madhya Pradesh as per the provisions of Section 35
      of the Act. It is contended that though the First  Statute  and  First
      Ordinance are prepared, duly approved by the respondent No. 2 but  the
      same are not published in the Gazette on account of which the same are
      not coming into force.

      The respondent No.2 by filing the return has contended that  the  said
      exercise is completed and  the  matter  has  been  placed  before  the
      respondent No.l  for  publication  of  the  First  Statute  and  First
      Ordinance. However, the respondent No.l has not published the same  in
      the official Gazette on account of which  the  same  are  not  yet  in
      force.

      Learned Deputy Advocate General has sought time to seek instructions.

      It is seen that the notices were issued in this petition on 29.11.2011
      and specifically it was directed that the instructions be obtained and
      matter be listed on 04.01.2012. No reply or return  is  filed  by  the
      respondent No.l opposing the petition.

      There is no prescription of any provision  under  this  Act  that  the
      State Government may take any objection with respect to making of  any
      First Statute or First Ordinance. Since the State has no role to  play
      in such a matter, it is directed that  the  First  Statute  and  First
      Ordnance so approved by the respondent  No.  2  be  published  in  the
      official Gazette within 10 days from the date of receipt of  certified
      copy of this order passed today.”



8.    In the meanwhile, the First Statutes and the First  Ordinances  framed
by the appellant were examined by the State Government and  a  decision  was
taken on 16.12.2011  at  the  level  of  the  Principal  Secretary,  Medical
Department that the  Commission  be  asked  to  inform  the  appellant  that
admission in Medical, Dental and other courses relating to  Health  Sciences
should be made as  per  the  directions  issued  by  the  Medical  Education
Department of the State Government,  Medical  Council  of  India  /   Dental
Council of India (MCI / DCI) and other regulatory bodies and  the  lists  of
admitted students be made available to those bodies, the  Director,  Medical
Education, Government of Madhya Pradesh and the Committee constituted  under
M.P. Niji Vyavasayik Shikshan Sansthan (Pravesh Ka Viniyaman Avam  Shulk  Ka
Nirdharan) Adhiniyam, 2007.  This decision was  approved  by  the  concerned
Minister and the Chief Minister in the third week of January, 2012.   (These
facts are borne out from the files produced by Shri  B.S.  Banthia,  learned
counsel representing the State of M.P.)  Thereafter, the  Secretary  of  the
Commission sent two letters dated 28.1.2012 to the Vice  Chancellor  of  the
appellant and conveyed the instructions received from the State  Government.
  By  two  other  letters  dated  6.2.2012,  the  Commission  approved   the
amendments suggested by the State Government in Para 3(b) of  Statute  No.18
that admission in Medical, Dental  and  other  courses  relating  to  Health
Sciences shall be made according to the directions  issued  by  the  Medical
Education Department of the State  Government  and  the  regulatory  bodies,
like, MCI/DCI and the  lists  of  admitted  students  be  forwarded  to  the
concerned authorities.

9.    On receipt of the aforesaid communications, the  appellant  filed  MCC
No.180/2012 in Writ Petition No.22021/2011 and prayed that  a  direction  be
issued to the respondents to implement order  dated  6.1.2012.  The  learned
Single Judge issued notice on 8.2.2012 and fixed  the  case  for  17.2.2012.
The appellant also filed  Writ  Petition  No.  2386/2012  for  quashing  the
directions contained in letters dated 6.2.2012. The High  Court  entertained
the writ petition on 10.2.2012, issued notice to the respondents and  stayed
the operation of communications dated 6.2.2012.

10.   At that stage, respondent No.1 filed a petition  for review  of  order
dated 6.1.2012 on the following grounds:

      i)    That the  approval  granted  by  the  Commission  to  the  First
           Statutes and the First Ordinances framed by  the  appellant  was
           provisional and the High Court committed an error by  issuing  a
           mandamus for publication thereof within 10 days.

      ii)   That the High Court committed an  error  by  assuming  that  the
           State Government does not have any role in the matter of framing
           of the First Statutes and the  First  Ordinances  ignoring  that
           under Section 36(11) of the Act the  State  Government  has  the
           power to issue instructions to the Commission on policy  matters
           and such instructions are binding on the Commission.

11.   The learned Single Judge took cognizance of the  provisions  contained
in Section 36 of  the  Act  and  the  documents  filed  with  Writ  Petition
No.2386/2012 and proceeded to observe:

          “6.    Now it is to be seen whether the Regulatory Commission has
          any power to ask for any guidance from the State Government or to
          act in  any  manner  so  as  to  seek  approval  from  the  State
          Government before granting approval  of  the  first  Statutes  or
          first Ordinances.  Section 36 in Chapter-IV of the Act deals with
          the constitution of the Regulatory  Commission  and  the  opening
          sentence of the said Section  in  sub-section  (1)  is  that  the
          Regulatory  Commission  shall  be  established   by   the   State
          Government for the purpose of providing a regulatory mechanism at
          the State level and for working as an interface between the State
          Government and the central regulatory bodies for the  purpose  of
          ensuring  appropriate   standards   of   teaching,   examination,
          research, extension programme,  protection  of  interest  of  the
          students and reasonable service conditions of the employees.  The
          Regulatory Commission is  made  to  function  under  the  general
          control of the Visitor, i.e. the Governor of the State.  Now what
          is the meaning of word ‘interface’ and whether could it  be  said
          that the Regulatory Commission is nothing but  an  agent  of  the
          State Government to act in between the State Government  and  the
          central  regulatory  bodies  for  the  aforesaid  purpose.    The
          literary meaning of  ‘interface’  as  given  in  Oxford  Advanced
          Learner’s Dictionary, is a device or connection or  program  that
          joins  one  device  or  system  to  another.   The   other   more
          appropriate meaning is that the  point  where  subjects,  systems
          etc. meet and affect each other.  Thus, the Regulatory Commission
          set up under the Act has to be treated as a bridge in between the
          State Government and the other central regulatory bodies for  the
          purpose of ensuring appropriate procedure  of  teaching  etc.  as
          given in sub-section (1) of Section 36 of the Act.  Naturally  if
          such interface is required to  get  something  examined,  it  has
          every right to refer the matter to the higher authorities of  the
          State.

          7.     In the case in hand though  nothing  has  been  placed  on
          record in the review petition but in response  to  the  connected
          writ petition, documents have been filed and it has been  pointed
          out that the Regulatory Commission was of the view that the first
          Statutes made by the respondent No.1 was required to be  referred
          to the Law Department of the Government  of  Madhya  Pradesh  for
          seeking approval whether such first Statutes were  in  conformity
          with different laws made in  respect  of  establishing  a  higher
          teaching institutions or not.  The matter was thereafter returned
          by the Law Department saying that it was required to  give  legal
          opinion only on the legal issues and not in such a case where the
          statutes were required to be made.  Since the  medical  education
          is also one of the part of studies  and  the  department  of  the
          private university, the matter was  thereafter  referred  to  the
          medical education department of Government of Madhya Pradesh  and
          it was decided that certain changes were required to be made with
          respect  to  the  admission  of  the  students  in  the   private
          university.  This being so, after the matter travelled up to  the
          Chief Minister of the State, the subsequent orders  were  passed,
          of course after the final disposal of the writ petition filed  by
          respondent No.1 on 06.01.2012.”




The learned Single Judge also referred to Rule 2(7)(e) of the High Court  of
Madhya Pradesh Rules, 2008 (for short, ‘the Rules’) and concluded  that  the
writ petition filed by the appellant for issue of a mandamus  to  respondent
No.1  to  publish  the  First  Statutes  and  the  First  Ordinances,   some
provisions of which relate to admission of  the  students,  could  be  heard
only by the Division Bench  and  not  by  the  Single  Judge  and  an  error
apparent on the face of the record was committed in deciding the  matter  on
6.1.2012.   The  learned  Single  Judge,  accordingly,  allowed  the  review
petition and directed that the matter be placed  before  the  Chief  Justice
for issue of necessary instruction for listing  of  the  matter  before  the
Division Bench.

12.   Dr. Rajeev Dhawan, learned senior counsel for the appellant,  referred
to Sections 26, 28, 35 and 36 of the Act and  argued  that  once  the  First
Statutes and the First Ordinances  were  approved  by  the  Commission,  the
State Government had no role in the matter and it was bound to  publish  the
same in the official  gazette  in  terms  of  Section  35.   Learned  senior
counsel submitted that the direction given by the learned Single Judge  vide
order dated 6.1.2012 was legally correct and there was no occasion  for  him
to recall that order at the instance of respondent No.1.  Dr. Dhawan  argued
that  the  learned  Single  Judge  committed  a  jurisdictional   error   by
entertaining and allowing the review petition by  treating  the  same  as  a
petition for re-hearing the matter. He submitted  that  the  learned  Single
Judge could not have reviewed order dated 6.1.2012 by assuming that  he  had
committed an error in appreciating the true scope of Section 36 of the  Act.
He further submitted that instead of complying with the direction  contained
in order dated 6.1.2012, respondent No.1  contemptuously  issued  directions
in the matter of admissions of the students and suggested amendment  in  the
First Statutes and, on this ground alone, the learned  Single  Judge  should
have declined to entertain the  review  petition.   Learned  senior  counsel
then argued that even though some provisions of the First Statutes  and  the
First Ordinances relate to admission of  the  students,  the  writ  petition
filed for issue of a mandamus to respondent No.1 to publish the same in  the
official gazette was not required to be placed before the Division Bench  of
the High Court and the learned Single Judge did  not  commit  any  error  by
entertaining and allowing the same.  Dr. Dhawan submitted that even  if  the
writ petition was required to be laid before the Division Bench of the  High
Court, hearing thereof  by  the  learned  Single  Judge  cannot  be  faulted
because counsel appearing for the respondents did not point out that as  per
Rule 2 (7)(e) of the Rules, the writ petition  can  be  heard  only  by  the
Division Bench.

13.   Shri Ravi  Shankar  Prasad,  learned  senior  counsel  and  Shri  B.S.
Banthia,  learned  counsel  appearing  for  the  State  of  Madhya   Pradesh
supported the impugned order and argued that the learned  Single  Judge  did
not commit any error by reviewing order dated 6.1.2012 because the same  had
been passed without giving reasonable  opportunity  to  respondent  No.1  to
show why  the  First  Statutes  and  the  First  Ordinances  framed  by  the
appellant  were  not  published.   Shri  Prasad  referred  to  letter  dated
24.10.2011 sent by the Secretary of the Commission to  the  Chief  Secretary
of the State to show that the  Commission  had  provisionally  approved  the
First Statutes and argued that the learned Single  Judge  committed  serious
error by directing publication thereof by assuming that the  Commission  had
granted unconditional approval and this,  by  itself,  constituted  a  valid
ground for review of order dated 6.1.2012.  Learned senior  counsel  further
argued that under Section 36(11) of the Act, the State  Government  has  the
power to issue directions on  policy  matters,  which  are  binding  on  the
Commission and the former did not commit any  illegality  by  requiring  the
latter to inform the appellant that the admissions in  medical  courses  are
required to be made strictly in consonance with  guidelines  issued  by  the
Medical Education Department of the  State,  MCI/DCI  and  other  regulatory
bodies and to submit  the  lists  of  admitted  students  to  the  concerned
authorities and bodies. Shri  Ravi  Shankar  Prasad   emphasized  that  such
directions  were  sine  qua  non  for  ensuring  that  standard  of  medical
education is not compromised in any manner.  Shri Banthia  referred  to  the
averments contained in the writ  petition  to  show  that  even  though  the
prayer made by the appellant was for issue of a mandamus to respondent  No.1
to publish the First Statutes and the First  Ordinances,  substance  of  the
relief claimed by the appellant related  to  the  policy  of  admission  and
admission of the students and argued that in view of  Rule  2(7)(e)  of  the
Rules, the Registry of the High Court should  not  have  listed  the  matter
before the Singhe Bench  and  the  learned  Single  Judge  should  not  have
decided the writ petition.

14.   Learned counsel for the Commission also supported the  impugned  order
and argued that the learned  Single  Judge  did  not  commit  any  error  by
recalling order dated 6.1.2012 because the  First  Statutes  framed  by  the
appellant had not been finally  approved  by  the  Commission  and,  in  the
absence of such an approval, a mandamus  could  not  have  been  issued  for
publication thereof in the  official  gazette.   Learned  counsel  submitted
that the appellant was, and is, not entitled to  any  relief  under  Article
226 of the Constitution of India because it had made  admissions  in  brazen
violation of the  undertaking  given  as  per  the  requirement  of  Section
7(iv)(m) of the Act.

15.   We have considered the respective arguments/submissions. In our  view,
even though the  learned  Single  Judge  may  not  have  been  justified  in
recalling order dated 6.1.2012 merely because he, on a detailed analysis  of
Section 36 of the Act felt that the Commission acts as a bridge  in  between
the State Government and the Central Regulatory bodies  and  the  amendments
suggested by the State Government  in  the  First  Statutes  were  meant  to
achieve the objects set out in Section 36(1),  the impugned order  does  not
call for interference under Article 136  of  the  Constitution  because  the
procedure adopted by the learned Single Judge in deciding the writ  petition
was contrary to the basics of natural justice.   The  request  made  by  the
counsel  appearing  for  respondent  No.1  for  grant  of   time   to   seek
instructions ought not to have been rejected at the threshold. It  is  quite
possible that the counsel representing the appellant may  have  pressed  for
early disposal of the writ petition but the  prayer  made  therein  was  not
such which could justify denial of opportunity to respondent  No.1  to  file
an affidavit to controvert the averments contained in the writ petition  and
to show cause why a mandamus should not be issued  for  publication  of  the
First Statutes  and  the  First  Ordinances.   We  have  no  doubt  that  if
respondent No.1 had been given  a  few  days’  time,  an  affidavit  of  the
competent officer could have been filed to  show  that  on  receipt  of  the
letters sent by the Secretary of the Commission, the matter was examined  by
the Medical and Health Department as  well  as  the  Law  Department  and  a
decision was taken to suggest amendment in  the  First  Ordinances  and  the
First Statutes so that admissions  in  Medical,  Dental  and  other  courses
relating to health sciences are  made  in  accordance  with  the  guidelines
framed by the Medical Education Department of the State Government  and  the
regulatory bodies like the MCI and the  DCI.   Respondent  No.1  could  have
also pleaded that the Commission’s approval of the First  Statutes  was  not
final and the matter  was  referred  to  the  State  Government  to  suggest
amendment, if any, which could be considered by the  Commission.   It  seems
to us that the learned Single Judge did not  get  time  to  go  through  the
contents of letter dated 24.10.2011 sent by the Secretary of the  Commission
to the Chief Secretary of the State, else he would not have disposed of  the
writ petition and issued a mandamus for publication of  the  First  Statutes
of the appellant by erroneously assuming that  the  Commission  had  finally
approved the First Statutes.

16.   We also agree with the learned counsel for respondent  No.1  that  the
appellant’s writ petition should have been heard by the  Division  Bench  of
the High Court and the  learned  Single  Judge  committed  a  jurisdictional
error by entertaining and allowing the same. In the writ petition  filed  by
it, the appellant repeatedly emphasized the need for  early  publication  of
the First Statutes and the First Ordinances and made a grievance that  delay
in that regard was affecting the admission process in various courses.  This
is evident from the contents of paragraph Nos. 4, 5.2,  5.4  to  5.9,  5.11,
6.3, 6.5, 6.8, 6.10, 6.14 and  6.15  of  Writ  Petition  No.22021/2011.  The
First Statutes and the First Ordinances, of which  publication  was  sought,
also  deal  with  the  policy  of  admission  including  the  regulation  of
reservation of seats for different categories and admission of students  and
their enrolment. This was as per the requirement  of  Section  26(1)(i)  and
Section 28(1)(a) of the Act.  Therefore, in terms of  Rule  2(7)(e)  of  the
Rules the writ petition should have been listed before  the  Division  Bench
of the High Court. The error committed by the Registry of the High Court  in
listing the matter before the learned Single Judge was compounded by him  by
entertaining  and  allowing   the   same.   Therefore,   there   was   every
justification for recalling order dated 6.1.2012 so that  the  matter  could
be heard by the Division Bench.

17.    In  the  result,  the  appeal  is  dismissed.  Now,   Writ   Petition
No.22021/2011 be listed before the Division Bench of the High Court  and  be
heard along with Writ Petition No.2386/2012. We request the concerned  Bench
of the High Court  to  make  an  endeavour  to  dispose  of  both  the  writ
petitions as early as possible but latest within a period  of  three  months
from the date of receipt/production of copy  of  this  order.   It  is  made
clear that the parties shall  be  free  to  raise  all  legally  permissible
contentions and the High Court  shall  decide  the  writ  petitions  without
being influenced by the observations made by the  learned  Single  Judge  in
the                             impugned                              order.

                                                       …...……..….………………….…J.
                           [G.S. Singhvi]






 New Delhi,                                            …………..….………………….…J.
 August 21, 2012.                                            [Sudhansu Jyoti
 Mukhopadhaya]






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