Suit for prohibitory injunction – Relating to vacant land –Claim for possession based on title – Title of plaintiff disputed – Various complicated questions arose for putting forth a case of title – Suit decreed by trial court – Reversed by first appellate court – High Court in second appeal after recording finding of facts restored the order of trial court – On appeal, held: In the facts and circumstances of the case, the questions which arose for consideration could be decided only in a suit for declaration and consequential reliefs and not in a suit for injunction simplicitor – In absence of prayer for declaration of title, issue regarding title, pleadings required for declaration of title, the parties cannot be said to have an opportunity to have full fledged adjudication regarding title – High Court exceeded its jurisdiction u/s 100 CPC in re-examining questions of fact, by going into the questions which were not pleaded and not in issue, and by formulating questions of law which did not arise in the second appeal – Code of Civil Procedure, 1908 – s.100. Suit for prohibitory injunction – Relating to immovable Property – Scope of – Held: The prayer for injunction will be decided with reference to the finding on possession – In cases of vacant land, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession – If the title is clear and simple, the court may decide the issue of title – But, if a cloud is raised over plaintiff’s title, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Respondent/plaintiffs 1 and 2 filed a suit for permanent injunction against the appellant-defendant. They pleaded that they were owners in possession of the suit properties (vacant land) under sale deeds from `R’ (their vendor). They alleged that the defendant interfered with their possession. Defendant in his Written Statement stated that the suit property was purchased by him from the brother of the plaintiffs’ vendor under a registered sale deed and was put in possession of the property by his vendor and it were the plaintiffs who tried to interfere with his possession. Plaintiffs led evidence to the effect that defendant’s vendor had gifted the suit property to his sister in the year 1961 by way of `Pasupu Kumkumam’. Defendant and his vendor denied the plea of gift. Trial Court decreed the suit. First Appellate Court allowed the appeal of the defendant holding that defendant was in possession of the property and the plaintiff had not made out either title or possession over it; that mere suit for injunction was not maintainable and the suit should have be amended to one for declaration and injunction. High Court in second appeal, examining the evidence in detail, recorded the findings of facts and restored the judgment and decree of trial court. It held that plaintiffs had established their title in respect of suit land and drew an inference that possession was presumed to be with them by applying the principle of possession follows title; and that it was not necessary for the plaintiffs to sue for declaration of title as the question of title could be examined incidental to the question of possession. Hence the present appeal. The questions which arose for consideration before this Court were regarding the scope of a suit for prohibitory injunction relating to immovable property; whether plaintiffs were required to file a suit for declaration of title and injunction; and whether the High Court, in a second appeal , could examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court. Allowing the appeal, the Court HELD: 1.1 Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. [Para 17] [349-G; 350-A] 1.2 A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. [Para 12] [345-G; 346-A, B, C, D] 1.3 As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. In cases of vacant land, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was in issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. [Paras 14 and 17] [346-G; 347-A, B, C; 350-A, B] 1.4 However, a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. [Para 17] [350-C, D, E] 1.5 Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. [Para 17] [350-F, G, H; 351-A] Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari – AIR 1965 Mad. 355; Sulochana Amma vs. Narayanan Nair – 1994 (2) SCC 14; Annaimuthu Thevar v. Alagammal – 2005 (6) SCC 202; Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer – 2000 (3) SCC 350- referred to. Corpus Juris Secundum (Vol.50, para 735, p.229) – referred to. 2.1 In the present case, the suit sites were vacant plots. Both sides admitted that defendant’s vendor was the original owner and that entire property stood in his name. The defendant claims title through his vendor. The plaintiffs claim title through their vendor, who neither has any deed of title nor any document in support of title or possession. Admittedly, there was no mutation in her name. This means that plaintiffs claim title through someone who claimed to be owner in pursuance of an oral gift in the year 1961 without the property being mutated in her name, whereas the defendant claims title from the person who was admittedly the original owner who was registered as owner in the revenue records. Necessarily, therefore, prima facie it has to be held that defendant had made out possession following title. [Para 20] [352-B, C, D, E] 2.2 The plaintiffs and their witnesses gave evidence to the effect that defendant’s vendor represented that his sister (appellants’ vendor) was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that defendant’s vendor had attested the sale deeds in their favour and identified his sister as the vendor-executant before the Sub-Registrar, at the time of registration of the sale deeds. But defendant’s vendor in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether evidence of appellants’ vendor and other plaintiffs’ witnesses should be believed or whether evidence of defendant’s vendor should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of Transfer of Property Act, validity of a oral gift by way of `Pasupu Kumkum’ under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter. [Para 21] [352-E, F, G, H; 353-A, B, C] 3.1 High Court exceeded its jurisdiction under Section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration. [Para 27] [355-G; 356-A, B] 3.2 The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of Transfer of Property Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues. [Para 25] [355-A, B, C] 3.3 The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of `Pasupu Kumkumam’, could be done orally and did not require a registered instrument. Even though there was no independence evidence of oral gift except the assertion to appellants’ vendor (which was denied by defendant’s vendor), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW3 and PW5 and plaintiffs, that defendant’s vendor negotiated for the sale of the plots representing that they sbelonged to his sister; and that he attested the sale deeds as a witness and identified his sister as the executant before the Sub-Registrar and therefore, Section 41 of Transfer of Property Act came to the aid of plaintiffs and defendant’s vendor was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title. [Para 26] [355-D, E, F, G] 3.4 Though driving the plaintiffs to a fresh round of litigation after three decades would cause hardship to them. But the scope of civil cases are circumscribed by the limitations placed by the rules of pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs, was brought upon themselves, by failing to convert the suit to one for declaration even when the written statement was filed, and by not seeking amendment of issues to include an issue on the question of title. In the absence of a prayer of declaration of title and an issue regarding title, let alone the pleadings required for a declaration of title, the parties cannot be said to have an opportunity to have a full-fledged adjudication regarding title. [Para 28] [356-B, C, D] D. Mahesh Babu for the Appellant. K. Amareswari, P. Venkat Reddy and Guntur Prabhakar for the Respondents. 2008 AIR 2033, 2008(5 )SCR331 , 2008(4 )SCC594 , 2008(4 )SCALE718 ,

CASE NO.:
Appeal (civil)  6191 of 2001

PETITIONER:
Anathula Sudhakar

RESPONDENT:
P. Buchi Reddy (Dead) By LRs & Ors

DATE OF JUDGMENT: 25/03/2008

BENCH:
R. V. Raveendran & P. Sathasivam

JUDGMENT:
J U D G M E N T
(Reportable)


CIVIL APPEAL NO.6191 OF 2001


R.V. RAVEENDRAN, J.


This appeal by special leave is by the defendant in a suit for
permanent injunction. Puli Chandra Reddy and Puli Buchi Reddy were the
plaintiffs in the said suit. Both are now no more. The Legal Representatives
of Puli Chandra Reddy are Respondents 2 to 5 and Legal Representatives of
Puli Buchi Reddy are Respondent 1 (i) to (iii). The suit related to two sites
bearing no. 13/776/B and 13/776/C  measuring 110 sq. yards and 187 sq.
yards in Matwada, Warangal town, together referred to as the 'suit property'.

2. Plaintiffs 1 and 2 claimed to be the respective owners in possession of
the said two sites having purchased them under two registered sale deeds
dated 9.12.1968 (Exs.A1 and A2) from Rukminibai. The plaintiffs further
claimed that the said two sites were mutated in their names in the municipal
records. They alleged that on 3.5.1978, when they were digging trenches in
order to commence construction, the defendant interfered with the said
work. The plaintiffs, therefore, filed suit OS No.279 of 1978 in the file of
Principal District Munsiff, Warangal, for a permanent injunction to restrain
the defendant from interfering with their possession.

3. Defendant resisted the suit. He claimed that suit property measuring
300 sq. yards in Premises No. 13/776 was purchased by him from K. V.
Damodar Rao (brother of plaintiffs' vendor Rukminibai) under registered
sale deed dated  7.11.1977 (Ex.B1); that he was put in possession of the suit
property by Damodar Rao; that the suit property had been transferred to his
name in the municipal records; that he applied for and obtained sanction of a
plan for construction of a building thereon; and that he had also obtained a
loan for such construction from the Central Government by mortgaging the
said property. According to him, when he commenced construction in the
suit property, the plaintiffs tried to interfere with his possession and filed a
false suit claiming to be in possession.

4. The trial court framed the following issues - (i) whether the plaintiffs
are in exclusive possession of the suit sites (house plots)? (ii) whether the
defendant has interfered with the possession of the plaintiffs over the suit
plots? (iii) whether the plaintiffs are entitled to permanent injunction; and
(iv) to what relief. The plaintiffs examined themselves as PW1 and PW2.
They examined their vendor Rukminibai as PW4. Puli Malla Reddy and
Vadula Ramachandram examined as PW3 and PW5, were the purchasers of
two adjacent sites from Rukminibai. One of them (PW3) was the cousin of
plaintiffs and was also the scribe and attestor in respect of the two sale deeds
in favour of plaintiffs. Plaintiffs exhibited the two sale deeds dated
9.12.1968 in their favour as Ex.A1 and A2 and municipal demand notices
and tax receipts, all of the year 1978 onwards, as Ex.A3 to A11. A plan
showing the sites was marked as Ex.A12. Two letters said to have written by
Damodar Rao were marked as Ex.A13 and A14. The sale deed executed by
Rukminibai in favour of PW3 was marked as Ex.X1 and sale agreement in
favour of PW5 was marked as Ex.X2. The defendant gave evidence as DW1
and examined his vendor Damodar Rao as DW2. He exhibited the certified
copy of the sale deed dated 7.11.1977 in his favour as Ex.B1, a certified
copy of mortgage deed executed by him in favour of Central Government as
Ex.B2, the licence and sanctioned plan for construction of a house in the suit
plot as Ex.B3 and B4 and the loan sanction proceedings as Ex.B5. He also
exhibited a property tax receipt dated 12.2.1978 issued to Damodar Rao
(Ex.B6), water charge bill dated 20.9.1978 for house No. 13/775 and 13/776
issued to Damodar Rao (Ex.B7), and property tax receipts dated 19.2.1972,
14.10.1973, 28.3.1970 and 13.11.1968 in the name of Damodar Rao (Ex. B8
to B11).

5. There was no dispute that the site purchased by the defendant from
Damodar Rao under deed dated 7.11.1977 is the same as the two sites
purchased by plaintiffs from Rukminibai under sale deeds dated 9.1.1968.
There is also no dispute that the suit property is a vacant plot and it was
originally portion of the backyard of the property bearing nos. 13/775 and
13/776, belonging to Damodar Rao, and that he was shown as registered
owner of the said properties No.13/775 and 13/776 in the municipal records.

6. The plaintiffs led evidence to the effect that Damador Rao orally
gifted the backyard portion of No.13/775 and 13/776, (separated from the
main building by a dividing wall) to his sister Rukminibai in the year 1961,
by way of 'Pasupu Kumkumam' (a gift made to a daughter or sister,
conferring absolute title, out of love and affection, with a view to provide for
her); that Rukminibai sold three portions of the gifted site to PW3, plaintiff
No.1, plaintiff No.2 in the year 1968 and they were in possession ever since
1968; and that an agreement of sale was also entered in regard to another
portion with PW5 as per Ex.X2. On the other hand, defendant led evidence
denying that the suit property was given to Rukminibai by way of 'Pasupu
Kumkumam'. His vendor Damodar Rao gave evidence that he was the
owner of the suit property and he sold it to the defendant under deed dated
7.11.1977 and put him in possession thereof. While plaintiffs alleged that
plots were mutated in their names after their purchase, defendant alleged that
the suit property purchased by him was a part of plot No.13/776 which stood
in the name of Damodar Rao in the municipal records. Neither party
produced the order of mutation or any certificate from the municipal
authorities, certifying or showing mutation to their names. They only
produced tax receipts. The tax receipts produced by plaintiffs showed that
they had paid taxes from 1978 onwards, that is for a period subsequent to the
sale by Damodar Rao in favour of defendant. Plaintiffs did not produce any
tax paid receipt to show that the property stood in the name of Rukminibai.
Nor did they produce any tax receipt for the period 9.12.1968 (date of
purchase by plaintiffs) to 7.11.1977 (date of purchase by  defendant). The
defendant produced tax receipts to show that the suit property stood in the
name of his vendor Damodar Rao till the date of sale in his favour.

7. The trial court decreed the suit by judgment dated 31.12.1985.
Relying on the two sale deeds in favour of plaintiffs, the tax paid receipts
and the oral evidence, it held that plaintiffs were in possession of the suit
property from the date of purchase and the defendant had interfered with
their possession. The defendant filed an appeal challenging the judgment and
decree of the trial court before the Addl. District Judge, Warangal. The first
appellate court held that the defendant was in possession of the suit property
and the plaintiffs had not made out, even prima facie, either title or
possession over the suit property. It was of the view that in the
circumstances a mere suit for injunction was not maintainable, and at least
when the defendant filed his written statement denying the title of plaintiffs
and setting up a clear and specific case of title in himself, the plaintiffs ought
to have amended the plaint to convert the suit into one for declaration and
injunction. Consequently it allowed the appeal by judgment and decree dated
9.12.1991 and dismissed the suit. Being aggrieved, the plaintiffs filed SA
No.29 of 1992.

8. The High Court by its judgment dated 18.1.1999 allowed the second
appeal and restored the judgment and decree of the trial court. For this
purpose, the High Court examined the evidence in detail and recorded the
following findings:

(i) There was an oral gift of the backyard portion (No.13/776) by way of
'pasupu kumkumam' by Damodar Rao in favour of his sister Rukminibai  in
the year 1961. As a gift of an immovable property in favour of a daughter or
sister by way of  'Pasupu Kumkuman' could be oral, the absence of any
registered document did not invalidate the gift.

(ii) Damodar Rao negotiated with plaintiffs, for sale of the two sites, on
behalf of his sister Rukminibai, representing that his sister was the owner
thereof and attested the sale deeds executed by his sister Rukminibai in
favour of plaintiffs as a witness and identified her as the executant of the
sale deeds before the Sub-Registrar. Those acts of Damodar Rao supported
the claim of Rukminibai that there was a oral gift. Alternatively, even if
there was no gift in favour of Rukminibai, and Damodar Rao was the owner,
the aforesaid acts of Damodar Rao showed  that with his implied consent,
Rukminibai represented to be the ostensible owner of the suit property and
transferred the same to plaintiffs for consideration. This attracted the
provision of section 41 of Transfer of Property Act, 1882 and therefore the
transfers in favour of plaintiffs was not voidable at the instance of Damodar
Rao or his successor in interest on the ground that Rukminibai was not the
owner of the suit property.

The High Court consequently held that plaintiffs had established their title in
regard to the two vacant sites purchased by them and drew an inference that
possession was presumed to be with them by applying the principle of
possession follows title. The High Court also held that it was not necessary
to plaintiffs to sue for declaration  of title, as the question of title could be
examined incidental to the question of possession.

9. The said judgment is challenged by the defendant, in this appeal by
special leave, on the following grounds :

(a) The suit for permanent injunction without seeking declaration of title
was not maintainable on the facts of the case. At all events, the High Court
ought not to have recorded a finding of fact on a seriously disputed and
complicated issue of title, in a suit for a mere injunction.

(b) The first appellate court held that plaintiffs had neither established
their title nor their possession and their remedy was to file a suit for
declaration and consequential relief. The High Court, in a second appeal,
ought not to have reversed the said decision of the first appellate court, by
the process of examining and recording a finding on title, even though there
was no issue regarding title.

(c) An oral gift by a brother to a sister was not permissible. At all events,
such an oral gift even if permissible, can be made only at the time of a
partition or at the time of marriage of the sister, with a view to making a
provision for her. The High Court erred in holding that the there was a valid
oral gift by Damodar Rao in favour of Rukminibai.

(d) There was no plea in the plaint about the ostensible ownership of
Rukminibai or about any acts of Damodar Rao which demonstrated the
consent of Damodar Rao to such ostensible ownership. Nor was there any
plea about due and diligent enquiries by the plaintiffs regarding title before
purchase. Therefore the High Court erred in holding that the sales in favour
of plaintiffs were protected by section 41 of the Transfer of Property Act,
1882.

(e) In the absence of pleadings and an issue regarding title, the defendant
had no opportunity to effectively lead evidence on the question of title.

(f) The High Court erred in equating plaintiffs' failure to produce title
deeds of their vendor to defendant's failure to produce the title deeds of his
vendor. The High Court overlooked the fact that there was no dispute that
defendant's vendor Damodar Rao was the earlier owner of the suit property
and it was for the plaintiffs who had set up a case that their vendor
Rukminibai derived title from Damodar Rao under an oral gift, to prove the
said claim.

10. On the contentions urged, the following questions arise for our
consideration in this appeal:

(i) What is the scope of a suit for prohibitory injunction relating to
immovable property?

(ii) Whether on the facts, plaintiffs ought to have filed a suit for
declaration of title and injunction ?

(iii) Whether the High Court, in a second appeal under section 100
CPC, examine the factual question of title which was not the
subject matter of any issue and based on a finding thereon, reverse
the decision of the first appellate court?

(iv)    What is the appropriate decision?

Re : Question (i) :

11. The general principles as to when a mere suit for permanent
injunction will lie, and when it is necessary to file a suit for declaration
and/or possession with injunction as a consequential relief, are well settled.
We may refer to them briefly.

11.1) Where a plaintiff is in lawful or peaceful possession of a property and
such possession is interfered or threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has a right to protect his possession
against any person who does not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not entitled to an
injunction against the rightful owner.

11.2) Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in addition, if
necessary, an  injunction. A person out of possession, cannot seek the relief
of injunction simpliciter, without claiming the relief of possession.

11.3) Where the plaintiff is in possession, but his title to the property is in
dispute, or under a cloud, or where the defendant asserts title thereto and
there is also a threat of dispossession from defendant, the plaintiff will have
to sue for declaration of title and the consequential relief of injunction.
Where the title of plaintiff is under a cloud or in dispute and he is not in
possession or not able to establish possession, necessarily the plaintiff will
have to file a suit for declaration, possession and injunction.

12. We may however clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge to
plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud
is said to raise over a person's title, when some apparent defect in his title to
a property, or when some prima facie right of a third party over it, is made
out or shown. An action for declaration, is the remedy to remove the cloud
on the title to the property. On the other hand, where the plaintiff has clear
title supported by documents, if a trespasser without any claim to title or an
interloper without any apparent title, merely denies the plaintiff's title, it
does not amount to raising a cloud over the title of the plaintiff and it will
not be necessary for the plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the plaintiff, believing that defendant is
only a trespasser or a wrongful claimant without title, files a mere suit for
injunction, and in such a suit, the defendant discloses in his defence the
details of the right or title claimed by him, which raises a serious dispute or
cloud over plaintiff's title, then there is a need for the plaintiff, to amend the
plaint and convert the suit into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with permission of the court to file a
comprehensive suit for declaration and injunction. He may file the suit for
declaration with consequential relief, even after the suit for injunction is
dismissed, where the suit raised only the issue of possession and not any
issue of title.

13. In a suit for permanent injunction to restrain the defendant from
interfering with plaintiff's possession, the plaintiff will have to establish that
as on the date of the suit he was in lawful possession of the suit property and
defendant tried to interfere or disturb such lawful possession. Where the
property is a building or building with appurtenant land, there may not be
much difficulty in establishing possession. The plaintiff may prove physical
or lawful possession, either of himself or by him through his family
members or agents or lessees/licensees. Even in respect of a land without
structures, as for example an agricultural land, possession may be
established with reference to the actual use and cultivation. The question of
title is not in issue in such a suit, though it may arise incidentally or
collaterally.

14. But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that possession
follows title. If two persons claim to be in possession of a vacant site, one
who is able to establish title thereto will be considered to be in possession, as
against the person who is not able to establish title. This means that even
though a suit relating to a vacant site is for a mere injunction and the issue is
one of possession, it will be necessary to examine and determine the title as
a prelude for deciding the de jure possession. In such a situation, where the
title is clear and simple, the court may venture a decision on the issue of
title, so as to decide the question of de jure possession even though the suit
is for a mere injunction. But where the issue of title involves complicated or
complex questions of fact and law, or where court feels that parties had not
proceeded on the basis that title was at issue, the court should not decide the
issue of title in a suit for injunction. The proper course is to relegate the
plaintiff to the remedy of a full-fledged suit for declaration and
consequential reliefs.

15. There is some confusion as to in what circumstances the question of
title will be directly and substantially in issue, and in what circumstances the
question of title will be collaterally and incidentally in issue, in a suit for
injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar
Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355,
the Madras High Court considered an appeal arising from a suit for
possession and injunction. The defendant contended that the plaintiff had
filed an earlier suit for injunction which was dismissed, and therefore the
plaintiff was precluded from agitating the issue of title in the subsequent
suit, being barred by the principle of res judicata. It was held that the earlier
suit was only for an injunction (to protect the standing crop on the land) and
the averments in the plaint did not give rise to any question necessitating
denial of plaintiff's title by the defendant; and as the earlier suit was
concerned only with a possessory right and not title, the subsequent suit was
not barred. There are several decisions taking a similar view that in a suit for
injunction, the question of title does not arise or would arise only
incidentally or collaterally, and therefore a subsequent suit for declaration of
title would not be barred. On the other hand, in Sulochana Amma vs.
Narayanan Nair 1994 (2) SCC 14, this Court observed that a finding as to
title given in an earlier injunction suit, can operate as res judicata in a
subsequent suit for declaration of title. This was on the premises that in
some suits for injunction where a finding on possession solely depended
upon a finding on the issue of title, it could be said that the issue of title
directly and substantially arose for consideration; and when the same issue
regarding title is put in issue, in a subsequent title suit between the parties,
the decision in the earlier suit for injunction may operate as res judicata.
This Court observed :

"Shri Sukumaran further contended that the remedy of injunction
is an equitable relief and in equity, the doctrine of res judicata
cannot be extended to a decree of a court of limited pecuniary
jurisdiction. We find no force in the contention. It is settled law
that in a suit for injunction when title is in issue for the purpose of
granting injunction, the issue directly and substantially arises in
that suit between the parties. When the same issue is put in issue in
a later suit based on title between the same parties or their privies
in a subsequent suit the decree in the injunction suit equally
operates as res judicata."

This was reiterated in Annaimuthu Thevar v. Alagammal 2005 (6) SCC
202.
16. This Court in Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer
2000 (3) SCC 350,   noticed the apparent conflict in the views expressed in
Vanagiri and Sulochana Amma and clarified that the two decisions did not
express different views, but dealt with two different situations, as explained
in Corpus Juris Secundum (Vol.50, para 735, p.229):
"Where title to property is the basis of the right of possession, a decision
on the question of possession is res judicata on the question of title to the
extent that adjudication of title was essential to the judgment; but where
the question of the right to possession was the only issue actually or
necessarily involved, the judgment is not conclusive on the question of
ownership or title."

 In Vanagiri, the finding on possession did not rest on a finding on title and
there was no issue regarding title. The case related to an agricultural land
and raising of crops and it was obviously possible to establish by evidence
who was actually using and cultivating the land and it was not necessary to
examine the title to find out who had deemed possession. If a finding on title
was not necessary for deciding the question of possession and grant of
injunction, or where there was no issue regarding title, any decision on title
given incidentally and collaterally will not, operate as res judicata. On the
other hand, the observation in Sulochana Amma that the finding on an issue
relating to title in an earlier suit for injunction may operate as res judicata,
was with reference to a situation where the question of title was directly and
substantially in issue in a suit for injunction, that is, where a finding as to
title was necessary for grant of an injunction and a specific issue in regard to
title had been raised. It is needless to point out that a second suit would be
barred, only when the facts relating to title are pleaded, when a issue is
raised in regard to title, and parties lead evidence on the issue of title and the
court, instead of relegating the parties to an action for declaration of title,
decides upon the issue of title and that decision attains finality. This happens
only in rare cases. Be that as it may. We are concerned in this case, not with
a question relating to res judicata, but a question whether a finding regarding
title could be recorded in a suit for injunction simpliciter, in the absence of
pleadings and issue relating to title.

17. To summarize, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff's title is not in
dispute or under a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is merely an
interference with plaintiff's lawful possession or threat of dispossession, it is
sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession,
normally the issue of title will not be directly and substantially in issue. The
prayer for injunction will be decided with reference to the finding on
possession. But in cases where de jure possession has to be established on
the basis of title to the property, as in the case of vacant sites, the issue of
title may directly and substantially arise for consideration, as without a
finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding title
[either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where
the averments regarding title are absent in a plaint and where there is no
issue relating to title, the court will not investigate or examine or render a
finding on a question of title, in a suit for injunction. Even where there are
necessary pleadings and issue, if the matter involves complicated questions
of fact and law relating to title, the court will relegate the parties to the
remedy by way of comprehensive suit for declaration of title, instead of
deciding the issue in a suit for mere injunction.    

(d) Where there are necessary pleadings regarding title, and appropriate
issue relating to title on which parties lead evidence, if the matter involved is
simple and straight-forward, the court may decide upon the issue regarding
title, even in a suit for injunction. But such cases, are the exception to the
normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not
be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully makes
a claim or tries to encroach upon his property. The court should use its
discretion carefully to identify cases where it will enquire into title and cases
where it will refer to plaintiff to a more comprehensive declaratory suit,
depending upon the facts of the case.

Re : Question (ii) :

18. Rukminibai did not have any title deed to the suit property. The case
of plaintiffs during arguments was that the gift made in the year 1961, being
by way of 'Pasupu Kumkumam' in favour of a sister by a brother, could be
oral and did not require a registered instrument. But the property allegedly
gifted to Rukminibai was not mutated in the name of Rukminibai in the
municipal records, but continued in the name of  Damodar Rao even after
1961. Damodar Rao was a resident of Warangal and staying in the house
adjoining the suit property. Rukminibai was a resident of Hyderabad.
Therefore, as on the date of sales in favour of the plaintiffs 9.12.1968,
Rukminibai had neither any title deed nor actual possession. Nor was the
property mutated in her name in the municipal records. The tax paid receipts
produced by the plaintiffs related to a period subsequent to the execution of
the sale deeds by Rukminibai in their favour and subsequent to the sale by
Damodar Rao in favour of defendant. On the other hand, the suit property
was sold in favour of the defendant by Damodar Rao who was shown as
registered owner in the municipal records and who even according to the
plaintiffs was the original owner of the property.

19. The first appellate court found that the evidence of plaintiffs and their
witnesses as to the title of plaintiffs' vendor Rukminibai was sketchy and
inconsistent. It referred to three versions as to how Rukminibai got the
property. The first version (as per PW1) was that the suit property belonged
to Rukminibai's father and he had given it to his daughter Rukminibai by
way of 'Pasupu Kumkumam'. The second version (as per PW2) was that
after the death of Rukminibai's father, there was an oral partition between K.
V. Damodar Rao and Rukminibai and at that partition, the suit property was
allotted to Rukminibai. But both PW1 and PW2 admitted that they did not
make any enquiry with Rukminibai about her title. The third version (as per
PW4 - Rukminibai) was that Damodar Rao made an oral gift of the plot in
her favour by way of 'Pasupu Kumkumam' in the year 1961. She admitted
that there was no special occasion for gifting the plot to her in the year 1961,
as she was married long prior to 1961.

20. The suit sites were vacant plots. Both sides admitted that Damodar
Rao was the original owner and that entire property stood in his name. The
defendant claims title through Damodar Rao. The plaintiffs claim title
through Rukminibai who neither has any deed of title nor any document in
support of title or possession. Admittedly, there was no mutation in her
name. This means that plaintiffs claim title through someone who claimed to
be owner in pursuance of an oral gift in the year 1961 without the property
being mutated in her name, whereas the defendant claims title from the
person who was admittedly the original owner who was registered as owner
in the revenue records. Necessarily, therefore, prima facie it has to be held
that defendant had made out possession following title.

21. The plaintiffs and their witnesses gave evidence to the effect that
Damodar Rao represented that his sister Rukminibai was the owner of the
plot and negotiated for sale of the several portions thereof in favour of
plaintiffs and PW3, and that Damodar Rao had attested the sale deeds in
their favour and identified his sister as the vendor executant before the
Sub-Registrar, at the time of registration of the sale deeds. It is no doubt true
that if that was the position, it is possible for them to contend that having
regard to section 41 of Transfer of Property Act, when the ostensible owner
Rukminibai sold the property with the implied consent of Damodar Rao, the
defendant as a transferee from Damodar Rao could not contend that the sales
were not valid. They also alleged that defendant was a close relative of
Damodar Rao and the sale in favour of defendant was only nominal,
intended to defeat their title. But Damodar Rao in his evidence denied
having made the oral gift or having attested the sale deeds in favour of
plaintiffs. He also denied having identified his sister at the time of
registration of the sale deeds. Whether Rukminibai's evidence and other
plaintiffs' witnesses should be believed or whether evidence of Damodar
Rao should be believed on the question of title, can be examined only when
there are necessary pleadings and an issue regarding title. Further, where
title of plaintiffs is disputed and claim for possession is purely based on title,
and the plaintiffs have to rely on various principles of law relating to
ostensible ownership and section 41 of TP Act, validity of a oral gift by way
of 'pasupu kumkum' under Hindu Law, estoppel and acquiescence, to put
forth a case of title, such complicated questions could properly be examined
only in a title suit, that is a suit for declaration  and consequential reliefs, and
not in a suit for an injunction simpliciter.

Re : Questions (iii) and (iv)
 
22. The High Court formulated the following as substantial questions of
law:

"(i) Whether the plaintiffs' suit for permanent injunction without seeking
declaration of title is maintainable under law?

(ii) Whether the acts and deeds of Damodar Rao (DW-2) made the
plaintiffs to believe that Rukminibai is the ostensible owner of the suit
property and thus made them to purchase the suit property for valid
consideration and, therefore, the provisions under Section 41 of the Transfer
of Property Act are attracted and as such DW-2 could not pass on a better
title to the defendant under Ex.B-1?

(iii) Whether the alleged oral gift of the suit property in favour of
Rukminibai by DW2 towards pasupukumkum is legal, valid and binding on
DW2 though effected in contravention of the provisions under Section 123
of the Transfer of Property Act?"

Having regard to the pleadings and issues, only the first question formulated
by the High Court can be said to arise for its consideration in the second
appeal. The second and third questions did not arise at all, as we will
presently demonstrate.

23. The second question of law formulated by the High Court is a mixed
question of fact and law, that is whether the factual ingredients necessary to
claim the benefit of section 41 of the Transfer of Property Act were made
out by plaintiffs. To attract the benefit of section 41 of TP Act, the plaintiffs
had to specifically plead the averments necessary to make out a case under
section 41 of the T.P. Act and claim the benefit or protection under that
section. The averments to be pleaded were :

(a) that Rukminibai was the ostensible owner of the property with the
express or implied consent of Damodar Rao;

(b) that the plaintiffs after taking reasonable care to ascertain that the
transferor or Rukminibai had the power to make the transfer, had acted in
good faith in purchasing the sites for valid consideration; and

(c) that therefore, the transfer in favour of plaintiffs by Rukminibai was
not voidable at the instance of Damodar Rao or any one claiming through
him.

These pleas were not made in the plaint. When these were not pleaded, the
question of defendant denying or traversing them did not arise. In the
absence of any pleadings and issue, it is ununderstandable how a question of
law relating to section 41 of TP Act could be formulated by the High Court.

24. The third question of law formulated by the High Court, is also a
mixed question of fact and law firstly whether there was an oral gift and
secondly whether the alleged oral gift was valid. Here again, there was no
averment in the plaint in respect of any gift, oral or otherwise, by Damodar
Rao in favour of Rukminibai or about its validity. Consequently there was
no opportunity to the defendant to deny the oral gift in his written statement.
There was no issue on this aspect also. Therefore, this question, which could
not have been considered in the suit, could not also have been considered in
the second appeal.

25. The High Court, in the absence of pleadings and issues, formulated in
a second appeal arising from a suit for bare injunction, questions of law
unrelated to the pleadings and issues, presumably because some evidence
was led and some arguments were advanced on those aspects. The only
averment in the plaint that plaintiffs were the owners of the suit property
having purchased the same under sale deeds dated 9.12.1968, did not enable
the court, much less a High Court in second appeal, to hold a roving enquiry
into an oral gift and its validity or validation of ostensible title under section
41 of TP Act. No amount of evidence or arguments can be looked into or
considered in the absence of pleadings and issues, is a proposition that is too
well settled.

26. The High Court while reversing the decision of the first appellate
court, examined various aspects relating to title and recorded findings
relating to title. It held that gifting a property to a daughter or sister by way
of  'Pasupu Kumkumam", could be done orally and did not require a
registered instrument. Even though there was no independence evidence of
oral gift except the assertion to Rukminibai (which was denied by Damodar
Rao), the High Court, held that there was an oral gift in her favour. It also
accepted the evidence of PW3 and PW5 and plaintiffs, that Damodar Rao
negotiated for the sale of the plots representing that they belonged to his
sister Rukminibai and that he attested the sale deeds as a witness and
identified the Rukminibai as the executant before the Sub-Registrar and
therefore, section 41 of TP Act came to the aid of plaintiffs and Damodar
Rao was estopped from denying the title of his sister. The High Court in a
second appeal arising from a suit for an injunction, could not have recorded
such findings, in the absence of pleadings and issue regarding title.


27. We are therefore of the view that the High Court exceeded its
jurisdiction under section 100 CPC, firstly in re-examining questions of fact,
secondly by going into the questions which were not pleaded and which
were not the subject matter of any issue, thirdly by formulating questions of
law which did not arise in the second appeal, and lastly, by interfering with
the well reasoned judgment of the first appellate court which held that the
plaintiffs ought to have filed a suit for declaration.

28. We are conscious of the fact that the suit was filed in the year 1978
and driving the plaintiffs to a fresh round of litigation after three decades
would cause hardship to them. But the scope of civil cases are circumscribed
by the limitations placed by the rules of pleadings, nature of relief claimed
and the court fee paid. The predicament of plaintiffs, was brought upon
themselves, by failing to convert the suit to one for declaration even when
the written statement was filed, and by not seeking amendment of issues to
include an issue on the question of title. In the absence of a prayer of
declaration of title and an issue regarding title, let alone the pleadings
required for a declaration of title, the parties cannot be said to have an
opportunity to have a full-fledged adjudication regarding title.

29. We, therefore, allow this appeal, set aside the judgment of the High
Court and dismiss the suit. Nothing stated herein or by the courts below shall
be  construed  as  expression of any opinion regarding title, in any future suit
for declaration and consequential reliefs that may be filed by the Appellants,
in accordance with law. Parties to bear their respective costs.

whether the widow of an employee is entitled to get family pension under the Employees Family Pension Scheme, 1971 (for short ‘Scheme’), on the failure of the employer to exercise his option under the scheme, especially when the claimant has already received the entire Provident Fund amount, from the Fund maintained by the Corporation.- Regional Provident Fund Commissioner as well as appellant-Corporation had informed all the departments/unions, as well as employees working under the Corporation to exercise their necessary option if they wanted to get the benefit of the Family Pension. Facts would indicate that several employees at that time had opted and few of them did not opt for that, since they were interested to get provident fund under the CPF Scheme and not the family pension under the Scheme, after the death of the employee. We have no reason to think that the employees were unaware of the notification issued by the Regional Provident Fund Commissioner as well as the Corporation. Facts would also indicate that the wife of Hari Singh had already received the entire provident fund amount and, since Hari Singh had not opted under the Scheme. However, after nine years, respondent Union is raising a dispute which, in our view, in absolutely untenable. The Tribunal as well as Courts below have committed a grave error in not properly appreciating the facts of the case and rendered a perverse finding which necessarily calls for interference. 15. Accordingly, we are inclined to allow this appeal and set aside the award of the Tribunal as well as the judgments of the learned single Judge and the Division Bench of the High Court. However, there will be no order as to costs.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 6639  OF 2012
               [Arising out of SLP (Civil) No. 36125 of 2011]
Rajasthan State Road Transport Corporation         .. Appellant
                                   Versus
President, Rajasthan Roadways Union & Another            .. Respondents

                               J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.    Leave granted.

2.    We are, in this case, concerned with the question  whether  the  widow
of an employee is entitled to get family pension under the Employees  Family
Pension Scheme, 1971 (for short ‘Scheme’), on the failure  of  the  employer
to exercise his option under the scheme, especially when  the  claimant  has
already received the entire Provident Fund amount, from the Fund  maintained
by the Corporation.

3.    Respondent Union raised a claim on behalf of the widow  of  late  Hari
Singh for family pension under the Scheme before the State Government.   The
State Government referred the matter to the Labour and Industrial  Tribunal,
Jaipur (for short ‘Tribunal’) for adjudication of the claim.  The  Tribunal,
after examining the  Scheme,  took  the  view  that  the  employee  was  not
informed  of  his  right  to  exercise  the   option   under   the   Scheme,
consequently, allowed the application and gave a direction to the appellant-
Corporation to disburse family pension to the widow of Hari Singh,  who  was
working as a Driver in the service of the Corporation.

4.    The appellant-Corporation took up the matter before the High Court  of
Judicature of Rajasthan at Jaipur Bench by filing S.B. Civil  Writ  Petition
No. 2099 of 1999, which was dismissed by  the  learned  Single  Judge   and,
later, confirmed by the Division Bench  as  well  vide  its  judgment  dated
29.6.2011 in D.B. Civil Special Appeal (Writ) No. 960  of  2011.   Aggrieved
by the same, appellant-Corporation has come up with this appeal.

5.    Shri S. K. Bhattacharya, learned counsel appearing for the  appellant-
Corporation, submitted that the Tribunal as well as the  Courts  below  have
misunderstood the provisions of the Scheme and omitted to take note  of  all
relevant and material facts for adjudication of the claim raised for  family
pension.  Learned counsel submitted that there was a complete misreading  of
the facts which led to incorrect reasoning resulting into rendering a  wrong
judgment on facts as well as on law.

6.    Shri B. Ramana Murthy, learned counsel appearing  for  the  respondent
Union, submitted that this Court shall not  interfere  with  the  concurrent
findings rendered by all the authorities below and that no question  of  law
has been raised for determination by this Court.

7.    In order to examine the rival contentions raised by  the  parties,  it
is necessary to understand the facts of the case  so  that  this  Court  can
examine whether the Tribunal as well as the Courts  below  have  rendered  a
perverse finding, which a reasonable person would not have arrived at  under
the facts and circumstances of a particular case.

8.    The employee Hira Singh was appointed as a Driver in  the  service  of
the appellant-Corporation on 22.3.1962, and later, he was  promoted  to  the
post of  Assistant  Traffic  Inspector.   In  the  year  1971,  the  Central
Government  introduced  a  scheme  relating  to  family  pension  by  making
suitable amendments in the Employees Provident Fund and Family Pension  Fund
Act, 1952 (for short ‘P.F. Act’).  Employees desirous  of  availing  of  the
benefit of the Scheme had to exercise their option under the Scheme and  the
last date for submission  of  the  application  for  the  said  purpose  was
1.9.1971.  According  to  the  appellant-Corporation,  Hari  Singh  did  not
exercise that option under the Scheme and, while  in  service,  he  died  on
30.5.1982.  Contributory Provident Fund, as per the rules, was disbursed  to
the widow of the employee and the same was received as well.  No  claim  for
family pension was raised since the employee had not opted for  the  benefit
of the Scheme.

9.    Respondent Union, however, took up the claim of the widow  after  nine
years by filing a petition  before  the  State  Government  which,  we  have
already indicated, was referred to the Tribunal and was  decided  in  favour
of the respondent Union.

10.   We are, in this case, concerned with the question whether  Hari  Singh
had opted for the benefit of the Scheme which came into force  in  the  year
1971 and whether there was failure on the part of  appellant-Corporation  in
promptly informing the employees of the  existence  of  such  a  Scheme  and
their right to exercise option for family pension.
11.   We find, on facts, that the Corporation had issued a  notification  on
30.7.1971 seeking necessary option from  the  employees.   In  pursuance  of
that notification, several employees had  exercised  their  option  for  the
Scheme and a few did not opt for that, since they were keen on  getting  the
provident fund under the Central  Provident  Fund  Scheme  (for  short  ‘CPF
Scheme’).   Hari Singh did  not  opt  for  the  Scheme  like  several  other
employees, since he was keen on getting the provident  fund  under  the  CPF
Scheme, rather than family pension under the Scheme.

12.   Appellant-Corporation has produced the notification issued by them  on
9.4.1971, as Annexure P/1, the operative part of which reads as follows:
            “I am to forward  herewith  a  copy  of  the  employees’  Family
      Pension Scheme, 1971 which has come into force with  effect  from  1st
      March, 1971 for your information and explaining the provisions of  the
      Family Pension-cum-Life Assurance Scheme to all  the  members  of  the
      Employees’ Provident Fund.


            2.    According to para 4 of this scheme every employee, who  is
      a member of the Employees’ Provident Fund or  of  Provident  Funds  of
      factories and other establishments exempted under section  17  of  the
      Act as on 28.2.1971 have to exercise their option in  Form  I  (copies
      attached) within a period of three months from the 1st March 1971, and
      furnish the same to this office immediately after the specified time.


            3.    The employees who opt or who  are  entitled  to  become  a
      member of the Family Pension Fund subsequently after 1st  March,  1971
      be asked to furnish the particulars concerning  themselves  and  their
      family in Form 2 (copies attached) and  the  same  may  also  be  sent
      (along with option Form No. 1) where-ever necessary.


            4.    The option forms and Nomination forms may please  be  sent
      duly supported with the following statement:-


      No. of members         No. of members        No. of members
      (Subscribers)          opted for Family      opted to continue
      as on 28.2.1971        Pension Scheme        existing P.F.

      benefit

           5.    Further requirement of Forms No. 1 and 2 may be had either
      directly from this office or the Provident Fund Inspectors at  Jaipur,
      Jodhpur & Ajmer.


           6.    The instructions regarding submission of other information
      and returns will follow:”




13.   We notice that the above notification was sent to  all  the  employees
of the appellant-Corporation  for  information  with  a  request  that  they
should give wide publicity to the scheme and  the  notification  was  issued
from the Office of the Regional Provident Fund Commissioner.  Following  the
above  notification,  the  Corporation  also  sent  a  communication   dated
30.7.1971   to    the    Regional    Manager/Administrative    Officer/Depot
Manager/Assistant Depot Manager, RSRTC and all the offices  informing  about
the notification issued by the Regional Provident Fund Commissioner  stating
as follows:

           “All the employees of the Raj. State Road Transport  Corporation
      who are contributing towards the Provident Fund are eligible to become
      the members of family pension scheme 1971 and it is obligatory on  the
      part of the employer to get the option referred to in sub-section  (i)
      of para 1 exercised by every members to whom the option  is  given  to
      become the member of this scheme before  31st  August,  1971.   I  am,
      therefore, sending herewith  one  copy  of  Employees  Family  Pension
      Scheme, 1971 along with declaration forms and Option forms  which  are
      required to be explained to each subscriber of the Provident Fund  and
      get the same signed by each employee  contributing  to  the  Provident
      Fund as on 1st March, 1971.


           It shall be your duty under clause 4(3) of  the  scheme  to  see
      that the option from each subscriber of opted is a list of  optees  in
      the following proforma may also be prepared and the same may  be  sent
      along  with  declaration  forms  and  option  forms  executed  by  the
      subscriber with special messenger by 31st August, 1971 positively.


      List of optees of Family Pension Scheme 1971.


      Name of Depot/Region/Office….


      |S.No.  |Name of the employee |C.P.F.   |Pay       |P.F.      |
|       |along with Father’s  |A/c No.  |including |amount @ 6|
|       |name                 |         |D.A.      |of pay    |
|       |                     |         |          |including |
|       |                     |         |          |D.A.      |
|1      |2                    |3        |4         |5         |




      |Family     |Total      |P.F.            |Remarks    |
|pension    |5 + 6      |subscription    |           |
|amount 11  |           |being deducted  |           |
|of pay     |           |at present      |           |
|including  |           |                |           |
|D.A.       |           |                |           |
|6          |7          |8               |9          |


                                       Signature of Head of Office with seal


            It is also requested that the scheme may kindly be explained  to
      go through carefully and the relevant benefits be explained to all the
      subscribers while taking declarations and options form  them  so  that
      they may consider to join the scheme and opt  for  the  same  in  good
      numbers, and I shall also request you to kindly give the publicity  of
      this scheme through the notice Board also.


            Kindly acknowledge.”




14.   When we read the notification dated 9.4.1971 issued  by  the  Regional
Provident Fund  Commissioner  along  with  the  communication  letter  dated
30.7.1971 issued by  the  appellant-Corporation,  it  is  evident  that  the
Regional Provident Fund Commissioner as well  as  appellant-Corporation  had
informed all the departments/unions, as well as employees working under  the
Corporation to exercise their necessary option if they  wanted  to  get  the
benefit  of  the  Family  Pension.    Facts  would  indicate  that   several
employees at that time had opted and few of  them  did  not  opt  for  that,
since they were interested to get provident fund under the  CPF  Scheme  and
not the family pension under the Scheme, after the death  of  the  employee.
We have  no  reason  to  think  that  the  employees  were  unaware  of  the
notification issued by the Regional Provident Fund Commissioner as  well  as
the Corporation. Facts would also indicate that the wife of Hari  Singh  had
already received the entire provident fund amount and, since Hari Singh  had
not opted under the Scheme.  However, after nine years, respondent Union  is
raising a  dispute  which,  in  our  view,  in  absolutely  untenable.   The
Tribunal as well as Courts  below  have  committed  a  grave  error  in  not
properly appreciating the facts of the case and rendered a perverse  finding
which necessarily calls for interference.

15.   Accordingly, we are inclined to allow this appeal and  set  aside  the
award of the Tribunal as well as the judgments of the learned  single  Judge
and the Division Bench of the High Court.   However, there will be no  order
as to costs.
                                                   ……………………………….J.
                                                   (K.S. Radhakrishnan)


                                                            ..………………………………J.
                                                   (Dipak Misra)
New Delhi,
September 18, 2012

appointment on compassionate ground - The claim of the respondent was earlier rejected on the ground that, the family had adequate financial status and the amount of pension being given was actually over and above the limit fixed by the appellant issuing the guidelines. Subsequently, when the case was reconsidered upon the direction of the court, it was found that the respondent did not meet the requisite eligibility criteria i.e., 10th standard certificate. Admittedly, the respondent is 8th standard fail, and thus, he can be considered only as 7th standard pass and we must therefore consider, whether he could have been offered appointment to a Class IV post. 13. Clause 9 thereof, provides that no relaxation in educational qualification(s) for the purpose of giving compassionate appointment to the dependant(s) of a deceased employee, would be permissible. However, such relaxation can be granted if there exists some requirement of minimum qualification(s) with respect to the said post. Clause 11 thereof, provides that a dependant can, in fact, be given appointment on compassionate ground, on the basis of the pass marks obtained by him in the new Secondary School Certificate and in view thereof, as respondent No.1 is admittedly only 8th standard (fail), he is therefore, ineligible for the post. Even otherwise, if the direction of the High Court is complied with and the case is considered as per the un-amended provisions in existence prior to 2005, the financial limits fixed therein, would automatically be applicable. His application dated 11.5.1999 reveals that his date of birth is 1.3.1976, and further that he has studied only upto the 8th standard (fail). 14. In view of the above, we are of the considered opinion that since 1991, the eligibility criteria for a Class IV post was set as, the passing of the 10th standard, and as the said respondent had been unable to pass even the 8th standard, he was most certainly, not eligible to apply for the said post. In view of the law referred to hereinabove, it is neither desirable, nor permissible in law, for this court to issue direction to relax the said eligibility criteria and appoint respondent No.1 merely on humanitarian grounds. 15. Thus, the question framed by this Court with respect to whether the application for compassionate employment is to be considered as per existing rules, or under the rules as existing on the date of death of the employee, is not required to be considered. 16. In view of the above, the appeal succeeds and is allowed. The judgment and order impugned herein is set aside. No order as to costs.

                                                                  Reportable




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 6468 OF 2012




    State of Gujarat & Ors.                             ..Appellants


                                   Versus


    Arvindkumar T. Tiwari & Anr.                     … Respondents








                               J U D G M E N T




    Dr. B.S. CHAUHAN, J.


    1.      This appeal has been preferred against  the  impugned  judgment
    and order dated 4.2.2008 passed in Letters Patent Appeal No.49/2008  by
    the High Court of Gujarat at Ahmedabad.


        2. Facts and circumstances giving rise to this appeal are as under:-


    a)      The father of respondent No.1 who was  working  in  the  Police
    Department, State of Gujarat as the Assistant Sub-Inspector of  Police,
    died in harness on 9.4.1999.  Immediately thereafter,  respondent  No.1
    filed an application for employment on compassionate  ground,  for  the
    post of Peon.  As he had completed his  education  only  upto  the  8th
    standard,  the  said  application  was  rejected   vide   order   dated
    13.10.2000, on the ground that the  family  of  the  deceased  was  not
    suffering from any financial constraints and was  getting  an  adequate
    amount of pension, which was, in fact, over and above the income  limit
    fixed by the Government for this purpose.   The  said  application  was
    considered by the Additional Director  General  of  Police  by  way  of
    passing order  dated  23.6.2003,  directing  that  the  application  of
    respondent No.1 be  reconsidered,  ignoring  the  abovementioned  issue
    regarding financial condition.  The said application was rejected  vide
    order dated 3.7.2005, on the ground that the applicant did not meet the
    minimum eligibility requirement for the said post, as he had not passed
    the  10th  standard,  which  was  a  necessary  pre-requisite  for  the
    consideration of the application of respondent No.1 for a Class IV post
    on compassionate ground.
    b)      Aggrieved, respondent No.1 preferred Special Civil  Application
    No.5630/2007, which was disposed  of  vide  judgment  and  order  dated
    2.3.2007, considering the fact that there was a subsequent notification
    dated  16.3.2005,  which  provided  for   the   minimum   qualification
    requirement of 10th standard pass,  as  the  eligibility  criteria  for
    employment to a Class IV post.  However, it was held that, as the  said
    employee had died in the year 1999, the  amended  provision  would  not
    apply to his case. Therefore, direction was issued to consider his case
    without being influenced by the earlier order,  in  light  of  the  new
    policy/circular/rules.
    c)      Aggrieved, the said order was challenged  before  the  Division
    Bench, by the appellant, which was rejected vide impugned judgment  and
    order dated 4.2.2008.  Hence, this appeal.


    3.      Shri Shomil Sanjanwala, learned counsel appearing for the State
    of Gujarat, has submitted that the High Court erred in  observing  that
    the new policy/rules do not apply retrospectively, and that the case of
    respondent No.1  should be considered in light  of  the  then  existing
    rules, i.e., the rules which were in force  prior  to  2005.   Earlier,
    employment on compassionate ground in  the  Department  of  Police  was
    governed by way of  Circular  dated  16.12.1991,  which  provided  that
    employment in Class III  or  Class  IV  posts,  shall  be  accorded  on
    compassionate ground to deserving candidates  on  the  basis  of  their
    educational qualification.


    4.       Mrs.  Laxmi  Arvind,  learned  Amicus  Curiae,  appearing  for
    respondent No.1 opposed the appeal, contending that the matter has been
    considered by the court below in a correct  perspective  and  does  not
    therefore, invite any interference.  The father of the respondent  died
    on 9.4.1999, and a period of more than 13 years has lapsed since  then.
    The respondent has been unsuccessful in getting  such  employment,  and
    has now attained the age of 36 years simply waiting for the said job by
    approaching one forum or the other, even though the purpose  for  which
    compassionate employment was introduced, was  to  redeem  the  bereaved
    family from financial constraints from which it is  likely  to  suffer,
    owing to the death of its  sole  bread  earner,  and  thus,  should  be
    accorded immediately.  The court should, therefore, issue direction  to
    offer employment to the said post of peon, to respondent No.1 under all
    circumstances on humanitarian grounds. The appeal lacks  merit  and  is
    liable to be dismissed.


    5.      We have  considered  the  rival  submissions  made  by  learned
    counsel for the parties and perused the record.
             It  is  a  settled  legal   proposition   that   compassionate
    appointment cannot be claimed as a matter of right.  It is  not  simply
    another method  of recruitment. A claim to  be  appointed   on  such  a
    ground, has to be considered in accordance with the rules,  regulations
    or administrative  instructions  governing  the  subject,  taking  into
    consideration the financial condition of the family  of  the  deceased.
    Such  a  category  of  employment  itself,  is  an  exception  to   the
    constitutional provisions  contained  in  Articles  14  and  16,  which
    provide that there can be no discrimination in public employment.   The
    object of compassionate employment is  to  enable  the  family  of  the
    deceased to overcome  the  sudden  financial  crisis  it  finds  itself
    facing, and not to confer any status upon it. (Vide: Union of  India  &
    Ors. v. Shashank Goswami & Anr., AIR 2012 SC 2294).


    6.      The eligibility for the post may at times be  misunderstood  to
    mean qualification. In fact, eligibility connotes the minimum  criteria
    for   selection,   that   may   be   laid   down   by   the   executive
    authority/legislature by way of any statute or rules,  while  the  term
    qualification, may connote  any  additional  norms  laid  down  by  the
    authorities. However, before a candidate is considered for  a  post  or
    even for admission to the institution, he must fulfill the  eligibility
    criteria. (Vide: Dr. Preeti Srivastava & Anr. v. State of M.P. &  Ors.,
    AIR 1999 SC 2894).


    7.      The appointing authority is competent to fix a higher score for
    selection, than the one required to be attained for  mere  eligibility,
    but by way of its natural corollary, it cannot be taken  to  mean  that
    eligibility/norms fixed by the statute or rules can be relaxed for this
    purpose to the extent that, the same may be lower than the  ones  fixed
    by the statute.  In  a  particular  case,  where  it  is  so  required,
    relaxation of even educational  qualification(s)  may  be  permissible,
    provided that the rules empower the authority to relax such eligibility
    in general, or with regard to an individual case or class of  cases  of
    undue hardship.  However,  the  said  power  should  be  exercised  for
    justifiable reasons and it must not be exercised arbitrarily,  only  to
    favour an individual. The power to relax the recruitment rules  or  any
    other rule made by the State Government/Authority is conferred upon the
    Government/Authority to meet any emergent  situation  where   injustice
    might have been caused or, is likely to be  caused  to  any  person  or
    class of persons or, where the working of the  said  rules  might  have
    become impossible.  (Vide: State of Haryana v. Subhash Chandra Marwah &
    Ors., AIR 1973 SC 2216; J.C. Yadav v. State of  Haryana,  AIR  1990  SC
    857; and Ashok Kumar Uppal & Ors. v. State of J & K & Ors., AIR 1998 SC
    2812).
    8.      The courts  and  tribunal  do  not  have  the  power  to  issue
    direction  to  make  appointment  by  way  of  granting  relaxation  of
    eligibility or in contravention thereof.  In State of M.P.  &  Anr.  v.
    Dharam Bir, (1998) 6 SCC 165, this Court while dealing with  a  similar
    issue rejected the plea of humanitarian grounds and held as under:
                 “The courts as also the tribunal have no power to  override
                 the  mandatory  provisions  of  the  Rules  on  sympathetic
                 consideration that a  person,  though  not  possessing  the
                 essential educational qualifications, should be allowed  to
                 continue on the post merely on the basis of his experience.
                 Such an order would amount  to  altering  or  amending  the
                 statutory provisions made by the Government  under  Article
                 309 of the Constitution.”


    9.      Fixing eligibility for a particular post or even for  admission
    to   a   course   falls   within   the   exclusive   domain   of    the
    legislature/executive and cannot be  the  subject  matter  of  judicial
    review, unless found to be arbitrary, unreasonable or  has  been  fixed
    without keeping in mind the nature of service, for  which  appointments
    are to be made, or has no rational nexus with the object(s)  sought  to
    be achieved by the statute.  Such eligibility can be changed  even  for
    the purpose of promotion, unilaterally  and  the  person  seeking  such
    promotion cannot raise the grievance that he should be governed only by
    the  rules  existing,  when  he  joined  service.  In  the  matter   of
    appointments, the authority concerned has unfettered powers so  far  as
    the procedural aspects are concerned, but it must meet the  requirement
    of  eligibility  etc.  The  court  should   therefore,   refrain   from
    interfering, unless the appointments so made, or  the  rejection  of  a
    candidature is found to have been done at  the  cost  of  ‘fair  play’,
    ‘good conscious’ and ‘equity’. (Vide: State of J & K v. Shiv Ram Sharma
    & Ors., AIR 1999 SC 2012; and Praveen Singh v. State of Punjab &  Ors.,
    (2000) 8 SCC 436).


    10.     In State of Orissa & Anr. v. Mamta Mohanty, (2011) 3  SCC  436,
    this Court has held that any appointment made in contravention  of  the
    statutory requirement i.e. eligibility, cannot be approved and once  an
    appointment is bad at its inception, the same cannot be  preserved,  or
    protected, merely because a person has been employed  for a long time.


    11.     A person who  does  not  possess  the  requisite  qualification
    cannot even apply for recruitment for the reason that  his  appointment
    would be contrary to the statutory rules is, and  would  therefore,  be
    void in law.
            Lacking eligibility for the post cannot be cured at  any  stage
    and appointing such a person would amount to serious  illegibility  and
    not mere irregularity.
            Such a person cannot approach the court for any relief for  the
    reason that he does not have a right  which  can  be  enforced  through
    court.  (See: Prit Singh v. S.K. Mangal & Ors.,   1993(1)  SCC  (Supp.)
    714; and Pramod Kumar v. U.P. Secondary Education Services Commission &
    Ors., AIR 2008 SC 1817).


    12.     The claim of the respondent was earlier rejected on the  ground
    that, the family had  adequate  financial  status  and  the  amount  of
    pension being given was actually over and above the limit fixed by  the
    appellant issuing the guidelines.   Subsequently,  when  the  case  was
    reconsidered upon the direction of the court, it  was  found  that  the
    respondent did not meet the requisite eligibility criteria  i.e.,  10th
    standard certificate.  Admittedly, the respondent is 8th standard fail,
    and thus, he can be considered only as 7th standard pass  and  we  must
    therefore consider,  whether he could have been offered appointment  to
    a  Class IV post.


    13.     Clause 9 thereof, provides that no  relaxation  in  educational
    qualification(s) for the purpose of giving compassionate appointment to
    the  dependant(s)  of  a  deceased  employee,  would  be   permissible.
    However,  such  relaxation  can  be  granted  if  there   exists   some
    requirement of minimum qualification(s) with respect to the said post.
            Clause 11 thereof, provides that a dependant can, in  fact,  be
    given appointment on compassionate ground, on the  basis  of  the  pass
    marks obtained by him in the new Secondary School  Certificate  and  in
    view thereof, as  respondent  No.1  is  admittedly  only  8th  standard
    (fail), he is therefore, ineligible for the post.
          Even otherwise, if the direction of the  High  Court  is  complied
    with and the case is considered as per  the  un-amended  provisions  in
    existence prior to 2005, the  financial  limits  fixed  therein,  would
    automatically be applicable.  His application dated  11.5.1999  reveals
    that his date of birth is 1.3.1976, and further  that  he  has  studied
    only upto the 8th standard (fail).


    14.     In view of the above, we are of  the  considered  opinion  that
    since 1991, the eligibility criteria for a Class IV post  was  set  as,
    the passing of the 10th standard, and as the said respondent  had  been
    unable to  pass even the 8th  standard,  he  was  most  certainly,  not
    eligible to apply for the said post. In view of  the  law  referred  to
    hereinabove, it is neither desirable, nor permissible in law, for  this
    court to issue direction to relax the  said  eligibility  criteria  and
    appoint respondent No.1 merely on humanitarian grounds.


    15.     Thus, the question framed by this Court with respect to whether
    the application for compassionate employment is to be considered as per
    existing rules, or under the rules as existing on the date of death  of
    the employee, is not required to be considered.


    16.     In view of the above, the appeal succeeds and is allowed.   The
    judgment and order impugned herein is set aside. No order as to costs.



                              ………………………………………J.
                                   (Dr. B.S. CHAUHAN)




                       .…………..…………………………………………J.
                       (FAKKIR MOHAMED IBRAHIM KALIFULLA)


    New Delhi,
    September 14, 2012.

-----------------------
11

service matter - The notice was issued on the ground that he did not possess the eligibility for the said post and proper procedure had not been followed for making the appointment. C. The respondent No.1 did not submit any reply to the aforesaid notice. Thus, the appellant Trust passed the order dated 30.4.1998 terminating his services on the ground that his appointment was in contravention of the statutory provisions of Bombay Primary Education (Gujarat Amendment) Act, 1986 (hereinafter referred to as the ‘Act’) and particularly, in violation of the Schedule attached thereto. Alongwith the order of termination, he was also served a cheque for a sum of Rs.1710/- towards the salary for the month of April 1998 and was directed to hand over the charge to the Principal.-Thus, it is evident that the appellant has acted with malice alongwith respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation. 23. After going through the material on record and considering the submissions made by learned counsel for the appellant and the respondent No.1-in-person, we do not find any cogent reason whatsoever to interfere with the aforesaid findings of fact. 24. The appeal lacks merit and is, accordingly, dismissed.

Reportable


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 6463 OF 2012




      Bhartiya Seva Samaj Trust Tr. Pres. & Anr.
      ..Appellants




                                   Versus




      Yogeshbhai Ambalal Patel & Anr.                      … Respondents








                               J U D G M E N T




      Dr. B.S. CHAUHAN, J.


   1. This appeal has been preferred against the impugned judgment and order
      dated 26.7.2012 passed by the High  Court  of  Gujarat,  Ahmedabad  in
      Letters Patent Appeal No.1367 of 2008  in  Special  Civil  Application
      No.6346 of 2006.

   2. Facts and circumstances giving rise to this appeal are that:
   A. The appellant Trust runs a Primary School wherein a  large  number  of
      students are getting education and a  large  number  of  teachers  are
      imparting education.  Respondent No.1 was appointed  as  an  Assistant
      Teacher on 1.7.1993 alongwith a large number of persons  in  pursuance
      of the advertisement inviting application for the posts.
      B.     The appellant Trust issued a show cause notice dated  26.3.1998
      to the respondent No.1 as why his services should  not  be  terminated
      and alongwith the said notice he was also  given  the  cheque  towards
      salary for the month of March 1998. He was asked to  submit  reply  to
      the said notice within 15 days.  The notice was issued on  the  ground
      that he did not possess the eligibility for the said post  and  proper
      procedure had not  been  followed  for  making  the  appointment.   C.
      The respondent No.1 did not submit any reply to the aforesaid  notice.
      Thus, the appellant Trust passed the order dated 30.4.1998 terminating
      his services on the ground that his appointment was  in  contravention
      of the statutory  provisions  of  Bombay  Primary  Education  (Gujarat
      Amendment) Act, 1986  (hereinafter  referred  to  as  the  ‘Act’)  and
      particularly,  in  violation  of  the   Schedule   attached   thereto.
      Alongwith the order of termination, he was also served a cheque for  a
      sum of Rs.1710/- towards the salary for the month of  April  1998  and
      was directed to hand over the charge to the Principal.
   D. Aggrieved, the respondent  No.1  challenged  the  aforesaid  order  by
      filing Application  No.69/98  before  the  Gujarat  Primary  Education
      Tribunal on 11.5.1998 and asked for quashing of the said order and for
      reinstatement with all back wages.  The appellant contested  the  said
      application and submitted the written statement etc.     Parties  were
      given the liberty by the Tribunal to  examine  and  cross-examine  the
      witnesses examined by the parties.  The  Tribunal  vide  judgment  and
      order dated 21.1.2006 allowed the application of the  respondent  No.1
      directing the appellant to reinstate him and also to pay him the  back
      wages.
      E.    Aggrieved, the appellant filed Special Civil Application No.6346
      of 2006 before the High Court of Gujarat challenging the said order of
      the Tribunal dated 21.1.2006.
      F.    The learned Single Judge vide order dated  13.11.2008  dismissed
      the said application filed by the appellant Trust on various  grounds,
      inter-alia, that  the  termination  was  in  utter  disregard  of  the
      statutory provisions of Section 40B of the Act which requires to serve
      a show cause notice to  the  employee  and  seeking  approval  of  the
      statutory  authorities  before  giving  effect   to   the   order   of
      termination.
      G.    Aggrieved, the appellant challenged the said judgment and  order
      by filing Letters  Patent  Appeal  No.1367  of  2008  which  has  been
      dismissed by order dated 1.12.2008.
           Hence, this appeal.


      3.    Shri Percy Kavina, learned Senior Advocate appearing  on  behalf
      of the appellant, has submitted that the respondent No.1 possesses the
      qualification of B.Sc.; B.Ed., but the required  qualification  for  a
      Primary School  Teacher  is  Primary  Teachers  Certificate  (PTC)  as
      provided in Clause (6) of Schedule F to the Act as applicable  to  all
      Primary Schools in the State of Gujarat.  Thus, the respondent did not
      possess the qualification making him eligible for the post.  Once  the
      order is bad in its inception, it cannot be  sanctified  by  lapse  of
      time. The order of termination ought not to have been interfered  with
      as the order setting aside the same had revived  the  wrong  order  of
      appointment, which is not permissible in law.  The courts  below  must
      have ensured strict compliance of the statutory provisions of the  Act
      and have swayed with unwarranted sympathy with  the  respondent  No.1.
      Thus, the appeal deserves to be allowed.


      4.    On the contrary, the respondent No.1 appeared  in  person  as  a
      Caveator and has submitted that he had  applied  in  pursuance  of  an
      advertisement wherein the eligibility i.e. qualification was shown  as
      B.Sc.;B.Ed/B.A.;B.Ed.  The vacancies  had  been  advertised  in  local
      newspaper having wide circulation.  Most of the teachers in the School
      run by the appellant had been appointed though they possessed the same
      qualification  i.e.,  B.Sc.;B.Ed./B.A.;B.Ed.   A   large   number   of
      candidates  had  applied  for  the  post  alongwith  respondent   no.1
      possessing the same qualification and they had been selected.  None of
      them has been removed.  The respondent No.1  had  been  given  hostile
      discrimination as the teachers  having  the  same  qualification  duly
      appointed  alongwith  respondent  No.1  are  still  working   in   the
      appellant’s School.  Respondent No.1 had been chosen to be removed for
      extraneous reasons and had been deprived of his legitimate dues.   His
      selection was made by the Committee consisting of the  representatives
      of the appellant Trust as well as  Government  officials  after  being
      fully satisfied regarding the eligibility of the respondent No.1.  The
      appellant Trust cannot be  permitted  either  to  make  discrimination
      amongst employees or to take the benefit of its own mistake  and  that
      too at such a belated stage.  The appeal lacks merit and is liable  to
      be dismissed.




      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.
            Section 40B of the Act reads as under:-
           Section 40B: Dismissal removal or reduction in rank of teachers:-
            (1)(a) No teacher of a recognized private primary school  shall
           be dismissed or removed  or  reduced  in  rank  nor  service  be
           otherwise terminated until –
              i) he has been given by the manager an opportunity of  showing
                 cause against the action proposed to be taken in regard  to
                 him; and
             ii) the action proposed to be taken in regard to him  has  been
                 approved in writing by the administrative  officer  of  the
                 school board in  the  jurisdiction  of  which  the  private
                 school is situated.
           (b)    The  administrative  officer  shall  communicate  to  the
           manager of the school in writing  his  approval  of  the  action
           proposed, within a period of forty five days from  the  date  of
           receipt by the administrative officer of such proposal.


           (2)   Where the  administrative  officer  fails  to  communicate
           either approval or disapproval within a  period  of  forty  five
           days specified in clause (b) of sub-section  (1),  the  proposed
           action  shall  be  deemed  to  have   been   approved   by   the
           administrative officer on the expiry of the said period.”


      6.    The Tribunal as well as the High Court, after  appreciating  the
      evidence on record, recorded the findings to the effect that there had
      been two fold violation of Section 40B of the Act, firstly, no  notice
      was issued to the respondent No.1 and secondly, no approval  from  the
      competent authority was sought for by the School management.


      7.    Shri Percy Kavina, learned Senior Advocate appearing  on  behalf
      of the appellant, has fairly conceded to  the  effect  that  the  said
      statutory provisions of Section 40B of the Act had  been  violated  on
      both counts.
            In view of the above, the facts and circumstances of the case do
      not warrant review of the orders passed by the High Court as  well  as
      by the Tribunal.  However, Shri Percy Kavina has  insisted  that  this
      Court should not permit an illegality to perpetrate as the  respondent
      No.1  had  been  appointed  illegally  and  he  did  not  possess  the
      eligibility for the post.  The Primary  School  children  have  to  be
      taught by qualified persons and this Court has consistently held  that
      B.Sc.; B.Ed./B.A.;B.Ed. is not equivalent to PTC which is the required
      qualification in clause (6) of Schedule F attached to the Act.  Clause
      (6) of Schedule F reads as under:-
           “Clause 6. Qualification – The  Management  shall  appoint  only
           trained teacher who have passed the Secondary School Certificate
           Examination  and   also   the   Primary   Training   Certificate
           Examination.
                 For special  subjects,  teachers  shall  be  recruited  in
           accordance with the qualification laid down  by  the  Government
           for such teacher under the vacancies in the  District  Education
           Committees or Municipal School Boards in the State from time  to
           time.”




                Thus, it has been submitted by Shri  Percy  Kavina  that  in
      order to enforce the statutory  requirement,  this  Court  should  set
      aside the impugned judgment and order as it has  revived  the  illegal
      appointment of the respondent No.1.


      8.    It is a settled legal proposition that the court should not  set
      aside the order which appears to be  illegal,  if  its  effect  is  to
      revive another illegal order. It is for the reason  that  in  such  an
      eventuality the illegality would perpetuate and it would put a premium
      to the undeserving party/person.  (Vide:  Gadde  Venkateswara  Rao  v.
      Government of Andhra  Pradesh  &  Ors.,  AIR  1966  SC  828;  Maharaja
      Chintamani Saran Nath Shahdeo v. State of Bihar & Ors.,  AIR  1999  SC
      3609; Mallikarjuna Mudhagal Nagappa & Ors. v.  State  of  Karnataka  &
      Ors., AIR 2000 SC 2976; Chandra Singh v.  State of Rajasthan, AIR 2003
      SC 2889; and State of Uttaranchal & Anr. v. Ajit Singh Bhola  &  Anr.,
      (2004) 6 SCC 800).


      9.    In  State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC  436,
      this Court while considering the similar issue where teachers had been
      appointed without possessing the eligibility  has  held  that  if  the
      appointment order itself  is  bad  in  its  inception,  it  cannot  be
      rectified and a person lacking eligibility cannot be appointed  unless
      the statutory provision provides for relaxation of  eligibility  in  a
      particular statute and order of relaxation has been passed in terms of
      the said order.


      10.   In  Andhra  Kesari  Education  Society  v.  Director  of  School
      Education  &  Ors.,  AIR  1989  SC  183,  this  Court  recognised  the
      importance of eligibility fixed by the Legislature in the said   case,
      pointing out that, as those persons have to handle with the tiny tods,
      therefore,  the  teacher  alone  could  bring  out  their  skills  and
      intellectual activities. He is the engine of the  educational  system.
      He is a superb  instrument  in  awakening  the  children  to  cultural
      values. He must possess potentiality to deliver enlightened service to
      the society. His quality should be such as could inspire and  motivate
      into action the benefiter. He  must  keep  himself  abreast  of  ever-
      changing conditions. He is not to perform in wooden and  unimaginative
      way; he must eliminate unwarranted tendencies and attitudes and infuse
      nobler and national ideas in younger generation; and  his  involvement
      in national integration is more important; indeed, indispensable.

      11.   IN BANDHUA MUKTI MORCHA V. UNION OF INDIA & ORS., 1984  SC  802,
      THIS COURT HELD THAT ARTICLE 21 READ  WITH  ARTICLES  39,  41  AND  42
      PROVIDES FOR PROTECTION AND PRESERVATION OF HEALTH AND  STRENGTH  ALSO
      OF TENDER AGE CHILDREN AGAINST  ABUSE  OF  OPPORTUNITIES  AND  FURTHER
      PROVIDES FOR PROVIDING THE EDUCATIONAL FACILITIES.


      12.   In Miss. Mohini Jain v. State of Karnataka & Ors., AIR  1992  SC
      1858, this Court while dealing  with  this  issue  held  that  without
      making “right to education” under Article 41  of  the  Constitution  a
      reality, the fundamental rights under Chapter III shall remain  beyond
      the reach of the large majority which are  illiterate.  The  State  is
      under an obligation  to  make  an  endeavour  to  provide  educational
      facilities at all levels to its  citizens.  The  right  to  education,
      therefore, is concomitant to the fundamental  rights  enshrined  under
      Part III of the Constitution to provide  educational  institutions  at
      all  levels  for  the  benefit  of  the  citizens.   The   Educational
      Institutions must function to the  best  advantage  of  the  citizens.
      Opportunity to acquire education cannot  be  confined  to  the  richer
      section of the society.


      13.   In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors.,
      AIR 1993 SC 2178, this Court considered a large number of judgments on
      this issue and came to the conclusion that the right to  education  is
      contained in as many as three Articles in Part IV, viz., Articles  41,
      45 and 46, which shows the importance attached to it by the  founding-
      fathers. Even some of the Articles in Part III, viz., Articles 29  and
      30 speak of education. The Court further held that right to compulsory
      and free education up to the age of 14 years is a fundamental right of
      every child.


      14.   In view to have greater emphasis,  the  86th  Amendment  in  the
      Constitution of India was made in 2002 introducing  the  provision  of
      Article 21-A, declaring the right to free and compulsory education  of
      the children between the age of 6 to 14 years as a fundamental  right.
      Correspondingly, the provisions of Article 45 have been amended making
      it an obligation on the part of the State to impart free education  to
      the children. Amendment in Article 51-A of the Constitution  inserting
      the clause-‘k’ has also been made making it obligatory on the part  of
      the parents to provide opportunities for education to  their  children
      between the age of 6 to 14 years.


      15.   Thus, in view  of  the  above,  it  is  evident  that  imparting
      elementary and basic education is a constitutional obligation  on  the
      State as well as societies running educational institutions.  When  we
      talk of education, it means not only learning how to  write  and  read
      alphabets or get mere information but it means  to  acquire  knowledge
      and wisdom so that he may lead a  better  life  and  become  a  better
      citizen to serve the nation in a better way.
            The policy framework behind education in India  is  anchored  in
      the belief that the values of equality, social justice  and  democracy
      and the creation of a just and humane society  can  be  achieved  only
      through provision of inclusive elementary education to all.  Provision
      of free and compulsory education of satisfactory quality  to  children
      from disadvantaged and weaker sections is, therefore, not  merely  the
      responsibility  of  schools  run  or  supported  by  the   appropriate
      Governments, but also of schools which are not dependent on Government
      funds.
            Every generation looks up to the next generation with  the  hope
      that they shall build up a nation better than the present.  Therefore,
      education which empowers the future generation should  always  be  the
      main concern for any nation.


      16.   Right to education flows directly from Article 21 and is one  of
      the most important fundamental rights. In Ashoka Kumar Thakur v. Union
      of India (2008) 6 SCC 1, while deciding the issue of reservation, this
      Court made a reference to the provisions of Articles 15(3) and 21A  of
      the  Constitution,  observing  that  without  Article  21A  the  other
      fundamental rights are rendered meaningless. Therefore, there  has  to
      be a need to earnestly on implementing Article 21A.
            Without education a citizen may never come to know of his  other
      rights. Since there is no corresponding constitutional right to higher
      education – the fundamental stress has to be on primary and elementary
      education, so that a proper foundation for  higher  education  can  be
      effectively laid.
            Hence, we see that education is an issue, which has been treated
      at length in our  Constitution.  It  is  a  well  accepted  fact  that
      democracy cannot be flawless; but, we can  strive  to  minimize  these
      flaws with proper education.
            Democracy depends for its  very  life  on  a  high  standard  of
      general,  vocational  and  professional  education.  Dissemination  of
      learning with search for new knowledge with discipline all round  must
      be maintained at all costs.


      17.   This Court in State of Tamil Nadu & Ors. v. K.  Shyam  Sunder  &
      Ors., (2011) 8 SCC 737 held as under:
           “In the post constitutional era,  attempts  have  been  made  to
           create  an  egalitarian  society  by  removing  disparity  among
           individuals and in  order  to  do  so,  education  is  the  most
           important and effective means. There has been an earnest  effort
           to bring education out of commercialism/merchantilism.
                 The right of a child should not be restricted only to free
           and compulsory education but should be extended to have  quality
           education without any discrimination  on  economic,  social  and
           cultural grounds”.


      18.   In view  of  the  above,  education  and  particularly  that  of
      elementary/basic education has to be  qualitative  and  for  that  the
      trained teachers are required. The Legislature  in  its  wisdom  after
      consultation  with  the  expert  body  fixes  the  eligibility  for  a
      particular discipline taught in a school.  Thus,  the  eligibility  so
      fixed require very strict  compliance  and  any  appointment  made  in
      contravention thereof must be held to be void.


      19.   In ordinary circumstances, the instant case could be decided  in
      the light of the aforesaid backdrop.  However, the Division  Bench  of
      the High Court has given full details of the  teachers  who  had  been
      appointed alongwith the respondent  No.1  in  pursuance  of  the  same
      advertisement   and   possessing    the    same    qualification    of
      B.Sc.;B.Ed./B.A.;B.Ed. They are still working with the same management
      and some of them had been as under:
           (i)   Mrs. Rekhaben Virabhai Patel
           (ii)  Mrs. Urmilaben Chandrakantbhai Mistry
            iii) Mr. Dilipbhai Naranbhai Patel
             iv) Mrs. Ritaben Shaileshbhai Joshi


      20.   The High Court further recorded a finding that the list of  such
      persons was merely illustrative and not exhaustive.


      21.    A person alleging his own infamy cannot be heard at any  forum,
      what to talk of  a  Writ  Court,  as  explained  by  the  legal  maxim
      ‘allegans suam  turpitudinem  non  est  audiendus'.  If  a  party  has
      committed a wrong, he cannot be permitted to take the benefit  of  his
      own wrong. (Vide: G. S. Lamba & Ors. v. Union of  India  &  Ors.,  AIR
      1985 SC 1019; Narender Chadha & Ors. v. Union of  India  &  Ors.,  AIR
      1986 SC 638; Molly Joseph @ Nish v. George Sebastian @ Joy,  AIR  1997
      SC 109; Jose v. Alice & Anr., (1996) 6 SCC 342; and T.  Srinivasan  v.
      T. Varalakshmi (Mrs.), AIR 1999 SC 595).
            This concept is also explained by the legal maxims ‘Commodum ex
      injuria sua nemo habere debet’; and 'nullus commodum capere potest  de
      injuria sua propria'.  (See also: Eureka   Forbes  Ltd.  v.  Allahabad
      Bank & Ors., (2010) 6 SCC 193; and  Inderjit Singh Grewal v. State  of
      Punjab & Anr., (2011) 12 SCC 588).


      22.   Thus, it is evident that the appellant  has  acted  with  malice
      alongwith respondent and held  that  it  was  not  merely  a  case  of
      discrimination  rather  it  is  a  clear  case  of  victimisation   of
      respondent No.1 by School Management for  raising  his  voice  against
      exploitation.


      23.   After going through the material on record and  considering  the
      submissions  made  by  learned  counsel  for  the  appellant  and  the
      respondent No.1-in-person, we do not find any cogent reason whatsoever
      to interfere with the aforesaid findings of fact.


      24.   The appeal lacks merit and is, accordingly, dismissed.

                            ……………………………………………J.
                            (Dr. B.S. CHAUHAN)




                        ..……………………………………………………J.
                       (FAKKIR MOHAMED IBRAHIM KALIFULLA)




    New Delhi,
    September 14, 2012