“Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand v. Gopal Lal[7], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (supra) and Ganga Bai v. Vijay Kumar (supra).) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.” 20. Though the High Court has referred to the said pronouncement, yet it has not applied the ratio correctly to the facts. This Court has clearly stated that if a person is prejudicially or adversely affected by the decree, he can maintain an appeal. In the present case, as we find, the plaintiff claiming to be a co-sharer filed the suit and challenged the will. The defendant No. 5, the brother of the plaintiff, supported his case. In an appeal at the instance of the defendant Nos. 1 to 4, the judgment and decree was overturned. The plaintiff entered into a settlement with the contesting defendants who had preferred the appeal. Such a decree, we are disposed to think, prejudicially affects the defendant No. 5 and, therefore, he could have preferred an appeal. It is worthy to note that the grievance pertained to the nature and character of the property and the trial court had decreed the suit. He stood benefited by such a decree. The same having been unsettled, the benefit accrued in his favour became extinct. It needs no special emphasis to state that he had suffered a legal injury by virtue of the over turning of the decree. His legal right has been affected. In this context, we may refer to a recent pronouncement in Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & ors.[8] wherein this Court has held thus: - “A “legal right”, means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & ors., AIR 1977 SC 1361).” 21. Though the said judgment was delivered in a different context, yet it is applicable to the obtaining factual matrix regard being had to the conception of legal injury. Thus, indubitably, the present appellant was a person aggrieved and was prejudicially affected by the decree and, hence, the appeal could not have been thrown overboard treating as not maintainable. 22. In view of the aforesaid premised reasons, we allow the appeal, set aside the judgment of the High Court, treat the second appeal preferred by the present appellant to be maintainable in law and remit the matter to the High Court with a request to decide the appeal within a period of six months. Needless to say, we have not expressed any opinion on any of the aspects which pertain to the merits of the case. In the facts and circumstances of the case, the parties shall bear their respective costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.  102    OF 2013
                (Arising out of S.L.P. (C) No. 35271 of 2011)


Hardevinder Singh                                  ... Appellant

                                   Versus

Paramjit Singh & others                           ...Respondents






                               J U D G M E N T


Dipak Misra, J.



      Leave granted.

   2. One Sarabjit Singh filed Civil Suit No. 29 of 1995 for  possession  of
      the suit land to the extent of his share treating the will alleged  to
      have been executed in favour of the defendant Nos. 1 to 4 as null  and
      void  with  the  consequential  prayer  for  restraining   them   from
      alienating the suit property in any manner.  
It was set forth  in  the plaint that the suit land in the hands of his father, Shiv Singh,  was ancestral coparcenary and Joint Hindu Family property  
and  
he,  along with his brothers, the defendant Nos. 5 and  6,  constituted  a  Joint Hindu Family with the father and mother.   
It  was  alleged  that  the
      defendant Nos. 1 to 4, on the basis of a forged  will,  forcibly  took
      possession of the land.  
It was set forth that by virtue of the  will,
      the plaintiff and the defendant Nos. 5 and 6, the co-owners, have been
      deprived of the legal rights in the suit land. 
 It was the case of the
      plaintiff that the will was not executed voluntarily  by  his  father,
      Shiv Singh, and it was a forged one and,  therefore,  no  right  could
      flow in favour of the said defendants.

   3. The defendant Nos. 1 to 4 entered contest and supported the  execution
      of the will on the  basis  that  it  was  voluntary  and  without  any
      pressure or coercion.  
That apart, it was contended that the rights of
      defendant No. 5 had  not  been  affected  as  a  registered  gift  was
      executed on 31.3.1980 by late Shiv Singh.
The claim of the  plaintiff
      was strongly disputed on the ground that the  will  had  already  been
      worked  out  since  the  revenue  records  had  been  corrected.   
The
      defendant No. 6 resisted the stand of the plaintiff contending,  inter
      alia, that the property was self-acquired and  the  execution  of  the
      will  was  absolutely  voluntary.  
The  defendant  No.  5  filed   an
      independent written statement admitting the claim  of  the  plaintiff.
     
It was set forth by him that the suit  land  was  ancestral,  
a  Joint Hindu Coparcenary property and his father Shiv Singh, being the Karta, had no right to bequeath the same in favour of defendant Nos. 1  to  4 to the exclusion of the other rightful owners.   
That  apart,  it  was
      contended that the will was vitiated by fraud.  A prayer was  made  to
      put him in possession of the suit land after carving out his share.

   4. The learned trial Judge framed as many as four issues.  The  plaintiff
      examined himself as PW-1 and tendered number of documents in  evidence
      which were marked as Exts. P-1 to P-17.  The defendant  Nos.  1  to  4
      examined number of witnesses and got seven documents  exhibited.   The
      defendant No.5 supported  the  evidence  led  by  the  plaintiff.   In
      rebuttal, the plaintiff examined the Record Keeper of Medical  College
      Rohtak as PW-2 and Dr. A.K. Verma as PW-3 and brought on  record  four
      forms, Exts. P-18 to P-19A.  The learned trial Judge, on  appreciation
      of the evidence brought on record, came to hold that the suit land was
      a Joint Hindu Family property; that defendant Nos. 1 to 4  had  failed
      to dispel the suspicious circumstances in the execution of the will in
      favour of defendant Nos. 1 to 4 and, hence,  the  will  was  null  and
      void; that the mutation did not create any impediment on the rights of
      the plaintiff and other natural heirs of the testator; and  that  they
      are entitled to get joint possession of the suit  land  as  per  their
      shares in accordance with the law of natural succession.

   5. On an appeal being preferred by the three beneficiaries  of  the  will
      (as the original defendant No. 1  had  died),
 the  learned  appellate Judge came  to  hold  that  
the  property  held  by  Shiv  Singh,  the predecessor-in-interest of the parties to the suit, was not ancestral,but self-acquired and, hence, he was competent to alienate the same in any manner as he liked;
that the will dated  6.7.1989,  Exh.  D-2,  in
      favour of original defendant No. 1, his wife who had  expired  by  the
      time the appeal  was  filed  and  the  defendant  Nos.  2  to  4,  his
      grandsons, was validly executed and that the finding recorded  by  the
      learned trial Judge on that score was unsustainable.
 Be it noted, the
      learned appellate Judge took note of the fact that Sarabjit Singh  had
      challenged the said will  but,  on  account  of  settlement  with  the
      appellants before the appellate court, had practically withdrawn  from
      the litigation.  Being of this view, he set  aside  the  judgment  and
      decree passed by the learned trial Judge and dismissed the  suit  with
      costs.

   6. The defendant No. 5 preferred R.S.A. No. 85 of 2007  before  the  High
      Court.  The learned single Judge, upon hearing the learned counsel for
      the parties and placing reliance on Smt. Ganga Bai v. Vijay Kumar  and
      others[1] and Banarsi and others v. Ram Phal[2], came to hold that the
 appeal was not maintainable at the instance of defendant No.  5  under Section 100 of the Code of  Civil  Procedure,  1908  (for  short  “the     Code”).

   7. We have heard Mr. Vipin Gogia, learned counsel for the appellant,  and
      Mr. K.K. Mohan, learned counsel appearing for the respondents.

   8. At the very outset, we must state that the High Court has accepted the
      preliminary objections  raised  by  the  respondents  as  regards  the
      maintainability  of  the  appeal.   While  accepting  the  preliminary
      objection, the High Court  has  opined  that  the  plaintiff  and  the
      defendant Nos. 1 to 4 and 6 had accepted the judgment and decree; that
      the defendant No. 5 cannot be regarded as an aggrieved party to assail
      the impugned decree invoking the jurisdiction of the High Court  under
      Section 100 of the Code;
that appeal being a creature of the  statute,
      the right to appeal inheres  in  one  and  it  stands  in  a  distinct
      position than that of a suit and, hence, no appeal could lie against a
      mere finding for the simple reason that the Code does not provide  for
      such an appeal; and that the suit having been dismissed by  virtue  of
      the dislodging of the decree by the first appellate court, the regular
      second appeal could not be filed by the defendant No. 5.   Hence,  the
      present appeal by the said defendant-appellant.

   9. As indicated earlier, to arrive at such  a  conclusion,  reliance  was
      placed on the decision in Smt. Ganga Bai v.  Vijay  Kumar  and  others
      (supra) wherein a distinction was drawn between the inherent right  to
      file a suit unless the suit is statutorily barred and the  limitations
      in maintaining an appeal.
In that case, the defendant Nos.  2  and  3
      had preferred an appeal before the High Court challenging the  finding
      recorded by the trial court.  Thereafter, a challenge was made  partly
      to the preliminary decree.  This Court took note of the fact that  the
      appeal preferred by the said defendants was  directed  originally  not
      against any part of the preliminary decree but against a mere  finding
      recorded by the trial court that the partition was  not  genuine.   It
      was observed by this Court that to maintain  an  appeal,  it  requires
      authority of law.  After referring to Sections 96(1), 100, 104(1)  and
      105 of the Code, the Bench observed as follows: -

           “17.  These  provisions  show  that  under  the  Code  of  Civil
           Procedure, an appeal lies only as against a decree or as against
           an order passed under rules from which an  appeal  is  expressly
           allowed by Order 43, Rule 1.  No appeal can lie against  a  mere
           finding for the simple reason that the Code does not provide for
           any such appeal.  It must follow that First  Appeal  No.  72  of
           1959 filed by defendants 2 and 3 was not maintainable as it  was
           directed against a mere finding recorded by the trial court.”

  10. Thereafter, the Court opined that the High Court mixed up two distinct
      issues, namely, (i) whether the defendants 2 and 3 were  competent  to
      file an appeal if they were aggrieved by the  preliminary  decree  and
      (ii) whether the appeal as filed by them  was  maintainable.   It  was
      opined that if the defendants 2 and 3  could  be  said  to  have  been
      aggrieved by the preliminary decree, it was  certainly  competent  for
      them to challenge that decree in appeal, but as they had not filed  an
      appeal against the preliminary decree, the question whether they  were
      aggrieved by that decree  and  could  file  an  appeal  therefrom  was
      irrelevant.  The Bench held that the appeal was directed  against  the
      finding given by the trial court which was against them, hence, it was
      not maintainable.  Be it noted, this Court also addressed with  regard
      to the issue whether defendant Nos. 2 and  3  were  aggrieved  by  the
      preliminary decree and opined that  the  appeal  was  against  a  mere
      finding and the preliminary decree, in fact, remained unchallenged for
      a long period.

  11. Another aspect which was  addressed  by  the  Bench  was  whether  the
      finding would operate as res judicata in  the  subsequent  proceeding.
      This Court observed that the finding recorded by the trial court  that
      the partition was a colourable transaction  was  unnecessary  for  the
      decision of the suit because even if the court were to find  that  the
      partition was genuine, the mortgage would only have bound the interest
      of the father as the debt was not of  a  character  which,  under  the
      Hindu Law, would bind the interest  of  the  sons.   That  apart,  the
      matter relating to the partition being not directly and  substantially
      in issue in the suit, the finding that the partition  was  sham  could
      not operate as res judicata so as to preclude a party aggrieved by the
      finding from agitating the question covered  by  the  finding  in  any
      other proceeding.

  12. On a keen scrutiny of the facts of the aforesaid case and  the  dictum
      laid down therein, in our considered opinion, it does not really apply
      to the case at hand, regard being had to the obtaining factual  matrix
      and further, the  decision  was  rendered  before  the  amendment  was
      brought into the Code prior to 1976.  Therefore, we have no hesitation
      in saying that the  High  Court  has  fallen  into  error  in  placing
      reliance on the said pronouncement.

  13. Presently, it is apt to note that Sections 96 and 100 of the Code make
      provisions for preferring an appeal from any original appeal or from a
      decree in an appeal respectively.  The  aforesaid  provisions  do  not
      enumerate the categories of persons who can  file  an  appeal.   If  a
      judgment and  decree  prejudicially  affects  a  person,  needless  to
      emphasize, he can prefer an appeal.  In this context,  a passage  from
      Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd.[3]  is
      worth noting: -

           “It is well settled that a person who is not a party to the suit
           may prefer an appeal with the leave of the appellate  Court  and
           such leave should  be  granted  if  he  would  be  prejudicially
           affected by the judgment.”

  14. In State of Punjab v. Amar Singh and another[4], Sarkaria,  J.,  while
      dealing with the maintainability of an appeal by a person who is not a
      party to a decree or order, has stated thus: -

           “84.  Firstly there is a catena of authorities which,  following
           the doctrine of Lindley, L.J., in re Securities  Insurance  Co.,
           (1894) 2 Ch 410 have laid down the rule that a person who is not
           a party to a decree or order may with the leave  of  the  Court,
           prefer an appeal from such decree or order if he is either bound
           by the order or is aggrieved by it or is prejudicially  affected
           by it.  As a rule, leave to appeal will  not  be  refused  to  a
           person who might have  been  made  ex  nominee  a  party  –  see
           Province of Bombay v. W.I. Automobile Association, AIR 1949  Bom
           141; Heera Singh v. Veerka, AIR 1958 Raj 181  and  Shivaraya  v.
           Siddamma, AIR  1963  Mys  127;  Executive  Officer  v.  Raghavan
           Pillai, AIR 1961 Ker 114.  In re B,  an  Infant  (1958)  QB  12;
           Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235.”

  15. In Baldev Singh v. Surinder Mohan Sharma and others[5], a three Judge-
      Bench opined that an appeal under Section 96  of  the  Code  would  be
      maintainable only at  the  instance  of  a  person  aggrieved  by  and
      dissatisfied with the judgment and decree.  In the  said  case,  while
      dealing with the concept of ‘person  aggrieved’,  the  Bench  observed
      thus:-

           “A person aggrieved to file an appeal must be one whose right is
           affected by reason or the  judgment  and  decree  sought  to  be
           impugned.  It is not the contention of Respondent 1 that in  the
           event the said judgment and decree is allowed to stand, the same
           will cause any personal  injury  to  him  or  shall  affect  his
           interest otherwise.”

  16. Be it noted, in the said case, the challenge  in  appeal  was  to  the
      dissolution of marriage of the appellant therein and  his  first  wife
      which, this Court held, would have no repercussion on the property  in
      the suit and, therefore, the High Court was not justified in disposing
      of the civil revision with the observation that the revisionist  could
      prefer an appeal.

  17. In Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and
      another[6], it was observed that the right given to a respondent in an
      appeal is to challenge the order under appeal  to  the  extent  he  is
      aggrieved by that order.  The memorandum of cross-objection is but one
      form of appeal.  It takes the place of a cross appeal.   In  the  said
      decision, emphasis was laid on the term ‘decree’.

  18. After the 1976 amendment of Order 41 Rule 22, the  insertion  made  in
      sub-rule (1) makes it permissible to file a cross-objection against  a
      finding.  The difference is basically that  a  respondent  may  defend
      himself without taking recourse  to  file  a  cross-objection  to  the
      extent the decree stands in his favour, but if he  intends  to  assail
      any part of the decree, it is obligatory on his part to file the cross-
      objection.  In Banarsi and Others v. Ram Phal  (supra),  it  has  been
      observed that the amendment inserted  in  1976  is  clarificatory  and
      three situations have been adverted to therein.  Category No. 1  deals
      with the impugned decree which is partly in favour  of  the  appellant
      and  partly  in  favour  of  the  respondent.   Dealing  with  such  a
      situation, the Bench observed that in such a case, it is necessary for
      the respondent to file an appeal or take cross-objection against  that
      part of the decree which is against him if he seeks to get rid of  the
      same though he is entitled to support that part of the decree which is
      in his favour without taking any cross-objection.  In respect  of  two
      other categories which deal with a decree entirely in  favour  of  the
      respondent though an issue had been decided against him  or  a  decree
      entirely in favour of the respondent where all  the  issues  had  been
      answered in his favour but there is a finding in  the  judgment  which
      goes against him, in the pre-amendment stage, he could  not  take  any
      cross-objection as he was not a person aggrieved by the  decree.   But
      post-amendment, read in the light  of  explanation  to  sub-rule  (1),
      though it is still not necessary for the respondent to take any cross-
      objection laying challenge to any finding adverse to him as the decree
      is entirely in his favour, yet he may support the decree without cross-
      objection.  It gives him  the  right  to  take  cross-objection  to  a
      finding recorded against him either while answering an issue or  while
      dealing with an issue.  It is apt to note that after the amendment  in
      the Code, if the appeal stands withdrawn or dismissed for default, the
      cross-objection taken to a finding by the respondent  would  still  be
      adjudicated upon on merits which  remedy  was  not  available  to  the
      respondent under the unamended Code.

  19. At this juncture, we may usefully reproduce a passage from Banarsi and
      others (supra) wherein it has been stated thus: -

           “Sections 96 and 100 CPC make  provision  for  an  appeal  being
           preferred from every original decree or from every decree passed
           in appeal respectively; none of the  provisions  enumerates  the
           person who can file an appeal.  However, it is settled by a long
           catena of decisions that to be entitled to file  an  appeal  the
           person must be one aggrieved by the decree.  Unless a person  is
           prejudicially or adversely affected by  the  decree  he  is  not
           entitled to file an appeal.  See  Phoolchand  v.  Gopal  Lal[7],
           Jatan Kumar Golcha v. Golcha Properties  (P)  Ltd.  (supra)  and
           Ganga Bai v. Vijay Kumar (supra).)  No  appeal  lies  against  a
           mere finding.  It is significant to note that both  Sections  96
           and 100 CPC provide for an appeal against decree and not against
           judgment.”

  20. Though the High Court has referred to the said pronouncement,  yet  it
      has not applied the ratio correctly to  the  facts.  
This  Court  has
      clearly stated that if a person is prejudicially or adversely affected
      by the decree, he can maintain an appeal.  
In the present case, as  we
      find, the plaintiff claiming to be a  co-sharer  filed  the  suit  and
      challenged the  will.   The  defendant  No.  5,  the  brother  of  the
      plaintiff, supported his case.  In an appeal at the  instance  of  the
      defendant Nos. 1 to 4, the judgment and decree  was  overturned.   The
      plaintiff entered into a settlement with the contesting defendants who
      had preferred the appeal.  Such a decree, we are  disposed  to  think,
      prejudicially affects the defendant No. 5  and,  therefore,  he  could
      have preferred an appeal.  It is worthy to  note  that  the  grievance
      pertained to the nature and character of the property  and  the  trial
      court had decreed the suit.  He stood benefited by such a decree.  The
      same having been unsettled, the benefit accrued in his  favour  became
      extinct.  It needs no special emphasis to state that he had suffered a
      legal injury by virtue of the over turning of the decree.   His  legal
      right has been affected.  In this context, we may refer  to  a  recent
      pronouncement  in  Ayaaubkhan  Noorkhan  Pathan  v.   The   State   of
      Maharashtra & ors.[8] wherein this Court has held thus: -

           “A “legal right”, means an  entitlement  arising  out  of  legal
           rules.  Thus, it may be defined as an advantage,  or  a  benefit
           conferred upon a person by the rule  of  law.   The  expression,
           “person aggrieved” does not include a person who suffers from  a
           psychological or an imaginary injury; a  person  aggrieved  must
           therefore, necessarily be one, whose right or interest has  been
           adversely affected or jeopardized. (Vide: Shanti Kumar R. Chanji
           v. Home Insurance Co. of New York, AIR 1974 SC 1719;  and  State
           of Rajasthan & Ors. v. Union  of  India  &  ors.,  AIR  1977  SC
           1361).”

  21. Though the said judgment was delivered in a different context, yet  it
      is applicable to the obtaining factual matrix regard being had to  the
      conception of legal injury.  Thus, indubitably, the present  appellant
      was a person aggrieved and was prejudicially affected  by  the  decree
      and, hence, the appeal could not have been thrown  overboard  treating
      as not maintainable.

  22. In view of the aforesaid premised reasons, we allow  the  appeal,  set
      aside the  judgment  of  the  High  Court,  treat  the  second  appeal
      preferred by the present appellant to be maintainable in law and remit
      the matter to the High Court with  a  request  to  decide  the  appeal
      within a period of six months.  Needless to say, we have not expressed
      any opinion on any of the aspects which pertain to the merits  of  the
      case.  In the facts and circumstances of the case, the  parties  shall
      bear their respective costs.



                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]

New Delhi;
January  07, 2013



-----------------------
[1]    AIR 1974 SC 1126
[2]    AIR 2003 SC 1989
[3]    AIR 1971 SC 374
[4]    AIR 1974 SC 994
[5]    (2003) 1 SCC 34
[6]    (1970) 1 SCC 685
[7]    AIR 1967 SC 1470
[8]    2012 (11) SCALE 39

-----------------------
17

oral dying declaration of the deceased = Whether such a person receiving certain injuries would be in a position to speak or not has not been brought out any where in the evidence. In this backdrop, the testimonies of the witnesses who have deposed in respect of the oral dying declaration are to be scrutinized. -the wife, the father-in-law and the two other relatives have clearly stated that the deceased had informed them about the names of the assailants. Nothing worth has been elicited in the cross-examination. They have deposed in a categorical manner that by the time they arrived at the place of occurrence, the deceased was in a fit state of health to speak and make a statement and, in fact, he did make a statement as to who assaulted him. Nothing has been suggested to these witnesses about the condition of the deceased. As has been mentioned earlier, PW-4, the doctor, who had performed the post mortem, has not been cross- examined. In this backdrop, it can safely be concluded that the deceased was in a conscious state and in a position to speak. Thus, it is difficult to accept that the wife, the father-in-law and other close relatives would implicate the accused-appellants by attributing the oral dying declaration to the deceased. That apart, in the absence of any real discrepancy or material contradiction or omission and additionally non cross-examination of the doctor in this regard makes the dying declaration absolutely credible and the conviction based on the same really cannot be faulted. 21. Having said that the discrepancies which have been brought out are not material, we may address to the issue of delay in lodging of the F.I.R. It is perceptible from the evidence that the father-in-law of the deceased had gone to the police station and lodged the ezahar and, thereafter, an FIR was lodged. The learned trial Judge has analysed the said aspect in an extremely careful and cautious manner and on a closer scrutiny, we find that the analysis made by him is impeccable. 22. In view of our aforesaid analysis, we conclude and hold that the appeal is sans substratum and, accordingly, the same has to pave the path of dismissal which we direct.

IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL  APPEAL NO. 1037 OF 2008


Parbin Ali and Another                       ... Appellants

                                   Versus

State of Assam                                      ...Respondent






                               J U D G M E N T


Dipak Misra, J.



      The present appeal by special leave is directed against  the  judgment
of conviction and order of sentence passed by  the  Gauhati  High  Court  in
Criminal Appeal Nos. 52(J) of 1999 and 53(J) of 1999  whereby  the  Division
Bench of the High Court  gave  the  stamp  of  approval  to  the  conviction
recorded by the learned Additional Sessions Judge, Silchar in Sessions  Case
No. 28/96 under Section 302/34 of the Indian  Penal  Code  (for  short  “the
IPC”)  and  order  of  sentence   sentencing   the   accused-appellants   to
imprisonment for life and to pay a fine of Rs.500/-, in default,  to  suffer
further rigorous imprisonment for one month.  It may be mentioned here  that
the accused-appellants  (hereinafter  referred  to  as  “the  accused”)  had
preferred two separate appeals against  the  common  judgment  but  a  joint
appeal has been preferred from jail.

     2. The facts giving rise to this appeal are that on  17.7.1994,  about
        9.00 p.m., deceased, Sakat Ali, was found lying injured on the road
        side.  
Coming to know about the same, a  large  number  of  persons
        including the father-in-law of the deceased, his  wife  and  others
        came to the spot and at that juncture, the injured Sakat  Ali  told
        them that he was assaulted by the accused persons  along  with  one
        Asiquddin.  
He remained lying on  the  road  side  as  neither  the
        relatives nor his wife could arrange any  conveyance  for  carrying
        him to the hospital and, eventually, he succumbed to  the  injuries
        around 11.00 p.m.  
While he was on the road, his father-in-law went
        to the police station wherein an “ezahar” was recorded.  
After  the
        injured died, an FIR was lodged on 18.7.1994.
After  the  criminal
        law was set in motion, the accused were arrested, the dead body  of
        the deceased was sent for post mortem, statements of nine witnesses
        were recorded under Section 161 of the Code of  Criminal  Procedure
        and, eventually, after completing the  investigation,  the  charge-
        sheet was placed before the competent Court under Section 302/34 of
        the IPC  against  the  accused  persons.  
The  learned  magistrate
        dropped the case against Asiquddin as he had died by that time  and
        committed the matter to the Court of  Session  and  ultimately  the
        case was tried by the learned Additional Sessions Judge, Cachar  at
        Silchar.

     3. The accused abjured their guilt and  desired  to  face  the  trial.
        During the trial, the prosecution, in order to establish its  case,
        examined nine witnesses and brought on exhibit number of documents.
         After completion of the prosecution evidence, the accused  persons
        were examined under Section 313 CrPC.  They had not put  forth  any
        substantial plea except a bald denial and chose not to  adduce  any
        evidence.

     4. The learned trial judge, considering the entire  evidence,  placing
        reliance on the oral dying declaration of the deceased  and  taking
        note of the weapon used and the nature of the injury  caused,  came
        to hold that the prosecution had  been  able  to  substantiate  the
        charge beyond reasonable doubt and, accordingly, convicted them and
        imposed the sentence.

     5. In appeal, the High Court took note of the fact that there  was  no
        direct evidence to implicate the accused and the minor omissions or
        contradictions and discrepancies which had been highlighted by  the
        defence did not create any kind of dent in the prosecution version;
        that ample explanation had been offered by the prosecution for  not
        getting the dying declaration recorded as the deceased was lying on
        the road side and could not be taken to a hospital; and that  there
        was no reason to disbelieve the oral  dying  declaration,  and  the
        same  being  absolutely  credible,  the  judgment  and   conviction
        rendered  by  the  learned  trial  Judge  did   not   warrant   any
        interference.

     6. We have heard Mr. Mithlesh Kumar Singh,  learned  counsel  for  the
        accused-appellants, and Mr. Avijit Roy, learned  counsel  appearing
        for the respondent-State.

     7. Questioning the correctness of the conviction, it is urged  by  Mr.
        Singh, learned counsel for the appellants, that the  learned  trial
        Judge as well as the  High  Court  has  gravely  erred  in  placing
        reliance on the oral dying  declaration  as  it  does  not  inspire
        confidence, for it is highly unnatural that the wife and the father-
        in-law of the deceased coming  to  the  spot  could  not  take  the
        injured to any nearby hospital for treatment though  he  lived  for
        few hours after the assault.   That  apart,  submitted  Mr.  Singh,
        though the police station is quite nearby, yet there was  delay  in
        lodging the FIR which casts a doubt in the case of the  prosecution
        and, eventually, creates a concavity in the testimonies  of  PWs-1,
        2, 3, 5 and 6 who have testified about the oral dying declaration.

     8. Mr. Avijit Roy, learned counsel appearing for  the  State,  on  the
        contrary, contended that the material on  record  do  clearly  show
        that the father-in-law had rushed to the police station and  lodged
        the “ezahar” which was registered and after the death, an  FIR  was
        registered under Section 302/34 of I.P.C. and, hence, the  plea  of
        delay in lodging the FIR has no legs to stand upon.
It is urged by
        him that 
by the time the witnesses arrived on  the  scene,  he  was
        conscious but despite the best efforts,  the  relatives  could  not
        arrange a conveyance to remove  the  deceased  to  a  hospital  for
        treatment and there is no justification to discard the said version
        in the absence of any kind of contradiction or discrepancy in their
        evidence.  The learned counsel for the State would emphatically put
        forth that the present case is one  where  the  courts  below  have
        justifiably given credence to the  oral  dying  declaration  as  it
        inspires unimpeachable and unreproachable confidence.

     9. Before we proceed to dwell upon the issue of acceptability of  oral
        dying declaration in the case at hand, it is apposite to  refer  to
        the post mortem report which has been  proven  by  PW-4,  Dr.  K.K.
        Chakraborty, who has  stated  the  injuries  on  the  body  of  the
        deceased that has caused the death.  They are as follows: -

           “Injuries:

              1) Bandage of right elbow joint remove and found a cut  injury
                 on right elbow medialy  and  along  with  crease  of  elbow
                 measuring 4 c.m. x 2 c.m. x 1 c.m.  with  cut  in  muscles,
                 margins of the wound regular.

              2) Cut injury along the 11th Thorax vertebrae on left  side  1
                 c.m. away from the mid line measuring 3 c.m. x 1 c.m.  x  1
                 c.m. margins of the wound regular.

              3) Cut injury on back side 5 c.m. above the iliac creast and 6
                 c.m. lateral to the 3rd lumber vertebrae with  prolapse  of
                 intestine through the wound measuring 6 c.m.  x  2  c.m.  x
                 abdominal cavity deep.  Margins of the wounds  are  regular
                 and inverted.

              4) Cut injury in front of the abdominal wall ½ c.m. below  the
                 neivous 1 c.m. away from the mid line to right side through
                 which intestine prolapsed.  Measuring 3 c.m.  x  2  c.m.  x
                 abdominal cavity deep.  Margins are inverted and regular.

                 All the injuries are fresh and antemortem caused  by  sharp
                 pointed weapon.

                 THORAX      -    All healthy.

                 ABDOMEN – Peritoneal cavity contain about  2  ½  litrs.  of
                 liquid  and  clotted  blood.  Stomach  congested.    Mouth,
                 pharynx, ocsophagus  healthy.   Cut  injury  in  the  small
                 intestine n the three parts  are  present.   Liver,  splin,
                 kidneys are all healthy.  Scalp, skull, vertebrae membrane,
                 brain – all healthy.

                 MUSCLES, BONES & JOINTS :

                       Muscles injury as described.  Fracture –  not  found.
                 Fresh no abnormality found.”

    10.  The final opinion of the doctor is that the death was  caused  due
        to shock and haemorrhage as a result of the ante mortem injuries in
        the abdomen caused by sharp weapon and homicidal  in  nature.   The
        said opinion was not challenged either before the  trial  Judge  or
        before the High Court.  We may fruitfully note here that  the  said
        witness has not been at all cross-examined.
Whether such a  person
        receiving certain injuries would be in a position to speak  or  not has not been brought out  any  where  in  the  evidence.  
 In  this
        backdrop, the testimonies of the  witnesses  who  have  deposed  in respect of the oral dying declaration are to be scrutinized.

    11. PW-1, Mooti Mia, a relative,  PW-2,  Sarifun  Meesa,  wife  of  the
        deceased, PW-3, Mohd. Abdul Wajid Ali, and  PW-5,  Aftaruddin,  the
        father-in-law of the deceased, have deposed that the  deceased  had
        named three accused persons as assailants.  PW-6, Arafan  Ali,  who
        came later to the place of occurrence, had found that the  deceased
        was not in a position to speak.  PW-8, Faizuluddin, did not support
        the prosecution case in entirety.  Thus, the real witnesses to  the
        oral dying declaration are  PWs-1,  2,  3  and  5  and  hence,  the
        veracity of their version is required to be scrutinised.

    12. Before we proceed to scrutinize the legal acceptability of the oral
        dying declaration, we think it seemly to refer to certain decisions
        in regard to the admissibility and evidentiary  value  of  a  dying
        declaration.  In Khushal Rao v. State of Bombay[1], Kusa  v.  State
        of Orissa[2] and in Meesala Ramakrishan v. State of A.P.[3], it has
        been held that the law is well settled that the conviction  can  be
        founded solely on the  basis  of  dying  declaration  if  the  same
        inspires full confidence.

    13. In Ranjit Singh v. State of Punjab[4], it has been  held  that  the
        conviction can be recorded on the basis of dying declaration alone,
        if the same is wholly reliable, but in the event there  exists  any
        suspicion as regards the correctness or otherwise of the said dying
        declaration, the courts, in arriving at the judgment of conviction,
        shall look for some corroborating evidence.  In  this  context,  we
        may also notice the judgment in Nanhau  Ram  v.  State  of  M.P.[5]
        wherein it has been stated that normally, the court,  in  order  to
        satisfy whether the deceased was in a fit mental condition to  make
        the dying declaration, looks up to the medical opinion.  But  where
        the eye witness said that the deceased was in a fit  and  conscious
        state to make the dying declaration,  the  medical  opinion  cannot
        prevail.

    14. While dealing with  the  evidence  of  the  declarant’s  mind,  the
        Constitution Bench, in Laxman v. State of Maharashtra[6], has  laid
        down thus: -

           “3. The juristic  theory  regarding  acceptability  of  a  dying
           declaration is that such declaration is made in extremity,  when
           the party is at the point of death and when every hope  of  this
           world is gone, when every motive to falsehood is  silenced,  and
           the man is induced by the most powerful consideration  to  speak
           only the truth. Notwithstanding the same, great caution must  be
           exercised in considering the weight to be given to this  species
           of evidence on account of the existence  of  many  circumstances
           which may affect their truth. The situation in which a man is on
           the deathbed is so solemn and serene, is the reason  in  law  to
           accept the veracity of his statement. It is for this reason  the
           requirements of oath and cross-examination are  dispensed  with.
           Since the accused has no power of cross-examination, the  courts
           insist that the dying declaration should be of such a nature  as
           to inspire full confidence of the court in its truthfulness  and
           correctness. The court, however, has always to be  on  guard  to
           see that the statement of the deceased was not as  a  result  of
           either tutoring or prompting or a product  of  imagination.  The
           court also must further decide that the deceased was  in  a  fit
           state of mind and had the opportunity to  observe  and  identify
           the assailant.  Normally,  therefore,  the  court  in  order  to
           satisfy whether the deceased was in a fit  mental  condition  to
           make the dying declaration looks up to the medical opinion.  But
           where the eyewitnesses state that the deceased was in a fit  and
           conscious state to make the  declaration,  the  medical  opinion
           will not prevail, nor can it be said  that  since  there  is  no
           certification of the doctor as to the fitness of the mind of the
           declarant, the dying declaration  is  not  acceptable.  A  dying
           declaration can be oral or in writing and any adequate method of
           communication whether by words or by  signs  or  otherwise  will
           suffice provided the indication is positive and definite.”



15.   In this context, it will be useful to refer to the decision  in  Puran
Chand v. State of Haryana[7] wherein it has been stated  that  a  mechanical
approach in relying upon a dying declaration just because  it  is  there  is
extremely dangerous and it is the duty of  the  court  to  examine  a  dying
declaration scrupulously with a microscopic eye  to  find  out  whether  the
dying declaration is voluntary, truthful, made in a conscious state of  mind
and  without  being  influenced  by  the  relatives  present   or   by   the
investigating agency who may be interested in the success  of  investigation
or which may be negligent while recording the dying declaration.  The  Court
further opined that the law is now well settled  that  a  dying  declaration
which has been found to be voluntary and truthful and  which  is  free  from
any doubts can be the sole basis for convicting the accused.

  16. Regard being had to the  aforesaid  principles,  we  shall  presently
      advert how to weigh the veracity of an oral  dying  declaration.   As
      has been laid down in Laxman (supra) by  the  Constitution  Bench,  a
      dying  declaration  can  be  oral.   The  said  principle  has   been
      reiterated by the Constitution Bench.  Here we may refer  to  a  two-
      Judge Bench decision in  Prakash  and  another  v.  State  of  Madhya
      Pradesh[8] wherein it has been held as follows: -

           “In the ordinary course, the members of the family including the
           father were  expected  to  ask  the  victim  the  names  of  the
           assailants at the first opportunity and if the victim was  in  a
           position to communicate, it is reasonably expected that he would
           give the names of  the  assailants  if  he  had  recognised  the
           assailants. In the instance case there is no  occasion  to  hold
           that the  deceased  was  not  in  a  position  to  identify  the
           assailants because it is nobody's case that the deceased did not
           know the accused persons. It is therefore quite likely  that  on
           being asked the deceased would name the assailants. In the facts
           and circumstances of the case the High Court  has  accepted  the
           dying declaration and we do not think that  such  a  finding  is
           perverse and requires to be interfered with.”

  17. It is worthy to note that in the aforesaid case this Court  had  laid
      down that when it is not borne out from the evidence  of  the  doctor
      that the injuries were so grave and the condition of the patient  was
      so critical that it  was  unlikely  that  he  could  make  any  dying
      declaration, there was no justification or  warrant  to  discard  the
      credibility of such a dying declaration.

  18. In Darshana Devi v. State of Punjab[9], this Court  referred  to  the
      evidence of the doctor who had stated that  the  deceased  was  semi-
      conscious, his pulse was not palpable and his blood pressure was  not
      recordable and had certified that he was not in a  fit  condition  to
      make a statement after the police had arrived  at  the  hospital  and
      expressed the view that the deceased could  not  have  made  an  oral
      statement that he had been burnt by his  wife.   Thus,  emphasis  was
      laid on the physical and mental condition of  the  deceased  and  the
      veracity of the testimony of the witnesses who depose as regards  the
      oral dying declaration.

  19. In Pothakamuri Srinivasulu alias Mooga Subbaiah v. State of A.P.[10],
      this Court, while dealing with the  issue  whether  reliance  on  the
      dying declaration made by the deceased to  PWs-1,  2  and  3  therein
      could be believed, observed thus: -

           “7. We find no reason to disbelieve the dying  declaration  made
           by the deceased to the witnesses PWs 1, 2 and 3.  They  are  all
           residents of the same village and are natural witnesses  to  the
           dying declaration made by the deceased. No reason  is  assigned,
           nor even suggested to any of the three witnesses, as to  why  at
           all any of them would tell a lie and attribute falsely  a  dying
           declaration to the deceased implicating  the  accused-appellant.
           Though each of the three witnesses has been  cross-examined  but
           there is nothing brought out in their statements to shake  their
           veracity.”



      We may also note with profit that the Court did not  accept  that  the
injured could not have been in a conscious state on the ground that no  such
suggestion had been made to any of the witnesses including  the  doctor  who
conducted the post mortem examination of the deceased.

  20. Coming to the case at hand, the wife, the father-in-law and  the  two
      other relatives have clearly stated that the  deceased  had  informed
      them about the names of  the  assailants.   Nothing  worth  has  been
      elicited  in  the  cross-examination.   
They  have   deposed   in   a
      categorical manner that by the time they  arrived  at  the  place  of
      occurrence, the deceased was in a fit state of health  to  speak  and
      make a statement and, in fact, he did make  a  statement  as  to  who
      assaulted him.
Nothing has been suggested to these  witnesses  about
      the condition of the deceased.
As has been mentioned earlier,  PW-4,
      the doctor, who had performed the post mortem, has  not  been  cross- examined.  In this backdrop, it can  safely  be  concluded  that  the deceased was in a conscious state and in a position to speak.   Thus,
      it is difficult to accept that the wife, the father-in-law and  other
      close relatives would implicate the accused-appellants by attributing
      the oral dying declaration to  the  deceased.   That  apart,  in  the
      absence of any real discrepancy or material contradiction or omission
      and additionally non cross-examination of the doctor in  this  regard
      makes the dying declaration absolutely credible  and  the  conviction
      based on the same really cannot be faulted.

  21. Having said that the discrepancies which have been  brought  out  are
      not material, we may address to the issue of delay in lodging of  the
      F.I.R.  It is perceptible from the evidence that the father-in-law of
      the deceased had gone to the police station  and  lodged  the  ezahar
      and, thereafter, an FIR was lodged.   The  learned  trial  Judge  has
      analysed the said aspect in an extremely careful and cautious  manner
      and on a closer scrutiny, we find that the analysis made  by  him  is
      impeccable.

  22. In view of our aforesaid analysis, we  conclude  and  hold  that  the
      appeal is sans substratum and, accordingly, the same has to pave  the
      path of dismissal which we direct.


                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]

New Delhi;
January 07, 2013
-----------------------
[1] AIR 1958 SC 22
[2] AIR 1980 SC 559
[3] (1994) 4 SCC 182
[4] (2006) 13 SCC 130
[5] 1988 Supp SCC 152
[6] (2002) 6 SCC 710
[7] (2010) 6 SCC 566
[8] (1992) 4 SCC 225
[9] 1995 Supp (4) SCC 126
[10] (2002) 6 SCC 399

- Service matter = the Division Bench concurred with the view expressed by the learned single Judge in CWP No. 1383 of 2009 whereunder the respondents were held entitled for grant of Assured Career Progression Scale (for short “the ACP Scale”) on completion of ten years of service which included training as apprentice.-invoked the writ jurisdiction of the High Court claiming the benefit of the second ACP Scale on completion of twenty years of service on the base that their period of training as apprentice had to be taken into consideration. Such a claim was founded on the assertion that they had joined as trainees between 17.4.1987 to 30.4.1987 and were subsequently absorbed and brought into the cadre. - On completion of ten years from the date they entered the service as trainees, the first ACP Scale was granted to them. However, when conferring of the benefit of the second ACP Scale arose, the same was not extended to them. = whether any of the clarificatory letters/circulars conferred any benefit on these employees so that they could be treated to be in regular service. On a perusal of the notification issued by the Board, it is clear as crystal that it relates to two categories of direct recruits who shall undergo training for a period of two years in the regular pay scale. Thus, the said notification has no application to apprentices who avail the training. In the clarification issued on 27.3.1991, there is a mention with regard to the regular pay scale in the notification dated 13.9.1990. The query was limited to the issue whether the training period of such a trainee would be counted for all intents and purposes or not. In that context, it was clarified that the period spent by the apprentice of all categories shall be treated as duty for all intents and purposes, i.e., for grant of increment in accordance with the provisions as contained in the policy, leave and seniority, i.e., from the date of joining in this cadre. It is worth noting that the Board had issued further clarification that the benefit of grant of annual increment under the provisions as contained in the letter dated 27.3.1991 was to be given to the trainees of all categories whose services had been regularized on 29.1.1991 or thereafter, and the consequential benefit should accrue only from the date on which the regular pay scale has been granted to the trainees of all categories. Clause 5 of the ACP Scheme which provides for eligibility criteria, in its note stipulates that for the purpose of the scheme, regular satisfactory service would mean continuous service counting towards seniority under the Board including the continuous service in PSEB before reorganization. It has been clearly stated that period spent on ad hoc basis, work charged basis, contingent basis and daily wages would not be counted for the purpose of counting the prescribed length of regular satisfactory service for the scheme. The respondents, as is evident, were appointed on different dates, i.e., 30.10.1988, 17.10.1988 and 25.10.1988 respectively as Technicians Grade-II in the pay scale on regular basis. Their period of probation was for two years. The letter/circular dated 27.3.1991 emphasizes the terms from the date of joining in the cadre. As is perceptible from the clarificatory letter dated 27.3.1991, the trainees of all categories have been granted regular pay scale from 21.1.1990 and decision had been taken that the training period or period spent as trainees of all categories shall be treated as duty for all intents and purposes. On 20th of January, 1992, it was further clarified that the period spent by the trainees of all categories on training would be counted as experience in service for the purposes of promotion. On a scrutiny of the promotion policy, the ACP Scheme and the communications, we find that the High Court has erred in its appreciation of the contents of the promotion policy and the conditions incorporated in the scheme and the clarificatory letters issued from time to time and their essential purport. The Board, on 14.3.1990, substituted and added certain clauses to the recruitment and promotion policy. We have reproduced the same earlier and on a proper scrutiny, it is perceivable that 50% posts are to be filled by direct recruitment from amongst persons who have passed 2 years ITI course with Matric as minimum qualification and such directly recruited Plant Attendants Grade-II would remain on training for a period of two years on the regular pay scale of Plant Attendant Grade-II to be allowed by the Board from time to time, and the other 50% is be filled up by direct recruitment from amongst persons who have passed two years ITI course with middle examination with two years experience or ITI one year course with middle examination and with three years experience of similar works. Such directly recruited Technician Grade-II shall remain on training for a period of two years in the regular pay scale. The clarificatory letter has to be read in the said context and we are disposed to think so as the persons appointed under the policy in the regular pay scale are required to go on training. The clarification sought related to grant of increment and computation of period that is spent as trainee in the capacity of Plant Attendant Grade-II and in that context, the clarification issued was that the training of all categories on training would be counted. It is worthy to note that the respondents were not recruited under the said policy. They were appointed as apprentices ITI trainee on 28.3.1987 and they were not given any kind of post. It is only mentioned that they may be appointed as Plant Attendant Grade- II/Technician Grade-II. Thereafter, they were appointed on different dates as Officiating Technician Grade-II. The regular pay scale was given from the date of appointment. Prior to that, it was a fixed pay. They were not working on a post. They did not belong to any cadre. In fact, they were not recruited and, hence, the term trainee which has been referred to in various clarificatory letters has been misconstrued by the High Court. 29. In view of the aforesaid analysis, we conclude and hold that the judgments rendered by the learned single Judge as well as by the Division Bench are unsustainable and are, accordingly, set aside. However, we clarify that if any financial benefit had been availed by the respondents, the same shall not be recovered, but their dates for grant of ACP Scale shall remain as determined by the appellants. Accordingly, the appeal is disposed of. The parties shall bear their respective costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 100      OF 2013
                (Arising out of S.L.P. (C) No. 29987 of 2010)


Haryana Power Generation Corporation
Limited and Others                                       ... Appellants

                                   Versus

Harkesh Chand and Others                           ...Respondents










                               J U D G M E N T


Dipak Misra, J.


      Leave granted.

2.    The present appeal by special leave is directed against  the  judgment
and order dated 26th July, 2010 passed by  the  High  Court  of  Punjab  and
Haryana at Chandigarh in LPA No. 865 of  2010  whereby  the  Division  Bench
concurred with the view expressed by the learned single  Judge  in  CWP  No.
1383 of 2009 
whereunder the respondents were  held  entitled  for  grant  of
Assured Career Progression Scale (for short “the ACP Scale”)  on  completion of ten years of service which included training as apprentice.

3.    The facts as  have  been  undraped  are  that  the  three  respondents
invoked the writ jurisdiction of the High Court claiming the benefit of  the
second ACP Scale on completion of twenty years of service on the  base  that
their period of training as apprentice had to be taken  into  consideration.
Such a claim was founded on the assertion that they had joined  as  trainees
between 17.4.1987 to 30.4.1987 and were subsequently  absorbed  and  brought
into the cadre.
On completion of ten years from the date they  entered  the
service as trainees, the first ACP Scale  was  granted  to  them.   However,
when conferring of the benefit of the second ACP Scale arose, the  same  was not extended to them.  
The said action of the  employer  compelled  them  to
knock at the doors of the High Court and during the  pendency  of  the  writ
petition, by proceeding dated 23.4.2009, the benefits  conferred  under  the
first ACP  Scale  was  withdrawn  referring  to  a  notification  issued  on
11.3.1990 which stipulated in clause  (4)  that  the  trainees  referred  to
therein would be entitled to increment  only  on  successful  completion  of
their training and in case of Plant Attendant Grade-II and Technician Grade-
II, increment on successful completion of  training  would  be  granted  but
without arrears.  Though the writ petition was  confined  to  grant  of  the
second ACP Scale, yet the learned single  Judge  required  the  counsel  for
both the sides to address about the  justifiability  of  withdrawal  of  the
benefit of the first ACP Scale  and  decided  both  the  facets.   The  said
exercise was undertaken by the learned single Judge as the primal  issue  in
respect of both the ACP Scales rested on the  question  whether  the  period
spent during training could be counted towards regular satisfactory  service
or not.

4.     It  is  not  in  dispute  that  the  respondents  were  appointed  as
Apprentice ITI Trainees by the erstwhile  Haryana  State  Electricity  Board
(for short “the Board”) for a period of two years on fixed pay  of  Rs.350/-
per month in 1987.  The Board,  vide  Office  Order  No.  706/Finance  dated
27.2.1998, set out the eligibility criteria for  conferment  of  benefit  of
the ACP Scales.   There  is  no  dispute  that  the  respondents,  who  were
Technicians Grade-II, were not excluded from the application  of  the  same.
The only question that really emerged for consideration before  the  learned
single Judge as well as by the Division Bench was  the  relevant  date  from
which the regular satisfactory service was to be computed for grant  of  ACP
Scales.  The learned single Judge, after referring to  the  clause  and  the
communications issued by the Board from time to time, came to hold that  the
regular satisfactory service would include the period spent by  the  persons
as trainees.  As regards the withdrawal of the first ACP Scale, the  learned
single Judge, referring to the notification dated 14.3.1990  and  especially
to clause (4) which dealt with grant of increment  and  thereafter  applying
the same reasoning, came to hold that clause (4) would have no operation  to
override the Office Order dated 27.2.1998 which  provides  how  the  regular
satisfactory service could be reckoned and, eventually, came  to  hold  that
the ACP Scale that had been  withdrawn  during  the  pendency  of  the  writ
petition was absolutely erroneous.  Being  of  this  view,  he  quashed  the
withdrawal order and issued a writ of mandamus  commanding  the  respondents
therein to grant both the first and second ACP Scales reckoning  the  period
of training towards the regular satisfactory service.

5.    In the Letters Patent Appeal, the Division Bench analysed the  anatomy
of clause  3(q)  dealing  with  grant  of  the  second  ACP  Scale  and  the
eligibility criteria, placed reliance  on  the  memorandum  dated  27.3.1991
circulated to all the departments to the effect that the period of  training
of all employees should be treated as duty for  all  intents  and  purposes,
referred to the  memo  dated  2.1.1992  which  stated  that  the  period  of
training shall be treated as  duty  for  all  intents  and  purposes,  i.e.,
seniority, leave, etc. and for experience in  service  for  the  purpose  of
promotion and further relying on the memorandum dated  20.1.1992  which  has
laid down that such period would be counted as  experience  in  service  for
the purposes of promotion, concurred  with  the  opinion  expressed  by  the
learned single Judge and declined  to  entertain  the  appeal.   Hence,  the
present appeal by the appellants.

6.     We  have  heard  Mr.  Shivendra  Dwivedi,  learned  counsel  for  the
appellants,  and  Mr.  R.K.  Kapoor,  learned  counsel  appearing  for   the
respondents.

7.    At the very outset, we may note that the respondents were granted  the
first ACP Scale on 16.6.1997,  13.1.1999  and  30.6.1998  with  effect  from
1.5.1997 instead of 1.11.1998 as on that date, they completed ten  years  of
service.  The same was withdrawn during the pendency of  the  writ  petition
where the grievance pertained to non-grant of the second ACP Scale in  terms
of the Scheme dated 27.2.1998 introduced by the Board.  It is  also  apt  to
note here that the respondents have already been granted  second  ACP  Scale
with effect from 1.11.2008.  Thus, the only grievance  is  that  the  period
shall differ in respect of each respondent if the  training  period  is  not
computed.

8.    In the backdrop of the  aforesaid  narrow  controversy,  we  think  it
apposite to scrutinize the various documents brought on record and how  they
are to be understood, appreciated and interpreted regard being  had  to  the
contextual meaning of the term ‘training’.

9.    The respondent No. 1 was appointed  as  Apprentice  ITI  Trainee  vide
letter dated 28.3.1987 by the Board.  It was stipulated in the  said  letter
that during the period of training, he would get a  fixed  pay  of  Rs.350/-
per month and on successful completion of the training, he may be  appointed
as Plant Attendant Grade-II/Technician Grade-II in the scale  of  Rs.400-700
on temporary basis and  he  would  be  exclusively  posted  in  the  Thermal
Organisation.  It was also stipulated therein that he would  enter  into  an
agreement with the Board that he would serve the Board  for  at  least  five
years after successful completion of training and in  case  he  would  leave
the service of the Board, he would remit the entire  cost  incurred  by  the
Board in connection with the  training  during  the  period  and  thereafter
during the course  of  his  appointment  together  with  interest.   Similar
letter  was  issued  to  the  other  respondents.   Vide  Office  Order  No.
303/EOM/G-263 dated 6.6.1989, number of persons  including  the  respondents
were appointed as Officiating Technicians Grade-II in the pay-scale of  950-
20-1150-ED-25-1500 with  effect  from  the  dates  mentioned  against  their
names.  The respondents were appointed on regular  basis  with  effect  from
30.10.1988, 17.10.1988 and  25.10.1988  respectively  with  the  stipulation
that they would remain on probation for a period of two years.

10.   As the factual narration would exposit,  the  Board,  in  exercise  of
power under Section 79 of the  Electricity  (Supply)  Act,  1948,  issued  a
notification on 14.3.1990 by bringing certain amendments in the  recruitment
and  promotion  for  employees  working  in  Thermal  Power  Projects.   The
relevant part of the amendment reads as follows: -

           “Para 3(i) of Part-A shall be substituted and read as follows:

           50% posts shall be filled-up by direct recruitment from  amongst
           persons having passed 2 years ITI Course with Matric as  minimum
           qualification.  Such directly recruited  Plant  attendant  Gr-II
           shall remain on training for a period of two  years  in  regular
           pay scale of Plant Attendant Gr-II to be allowed  by  the  Board
           from time to time.  The Competent Authority  may  terminate  the
           services of a Plant Attendant Gr-II (Trainee) without notice and
           without assigning any reason, if his work and conduct during the
           period of training is not found satisfactory.”




           “Para-3 (i) of Part-B shall be substituted and read as follows:

           50% posts shall be filled-up by direct recruitment from  amongst
           persons having passed 2 years ITI Course with Middle examination
           with 2 years experience  or  ITI  one  year  course  and  Middle
           Examination and with 3 years experience on similar works.   Such
           directly recruitment Technician Gr-II shall remain  on  training
           for a period of two years in the regular pay scale to be allowed
           by the Board from time to time.   The  Competent  Authority  may
           terminate the services of a Technician Gr-II  (Trainee)  without
           notice and without assigning any reason, if his work and conduct
           during period of training, is not found satisfactory.

                 The trainees referred to above shall be  entitled  to  the
           increment only on successful completion of their  training.   In
           case of Plant attendant Gr-II and Technician Gr-II, increment on
           successful completion of training shall be granted, but  without
           arrears.”

                                                       [underlining is ours]

11.   We have referred to the substituted clauses in extenso  to  appreciate
the use of the word ‘training’ therein after appointment to a post  and  the
stipulation relating to the grant of increment.   In  the  context  of  this
notification, the policy relating to ACP Scale granted under the ACP  Scheme
and the clarificatory communications are to be understood.

12.   Coming back to the narration,  recruitment  and  promotion  policy  as
amended, the F.A. & C.A.O., PTPS, HSE, Panipat, vide  Memo  dated  7.12.1990
sought certain clarification  in  relation  to  grant  of  increments.   The
clarification sought was to the following effect: -

           “In this connection it  may  please  be  clarified  whether  the
           period  of  training  in  all  the  cases  will  count   towards
           increment, leave salary and pension.   The  above  clarification
           may please be issued at the earliest so that the cases are dealt
           with accordingly on account of  grant  of  increment  and  leave
           salary etc.”

13.   On 27.3.1991, the Secretary, HSEB, clarified the position  by  stating
as follows: -

           “Board vide its notification No. 57, 58, 59,  60/Reg-137,  dated
           14.03.1990 and Notification No. 76/Reg-39/L, dated 13.09.90 have
           granted regular pay scales to the trainee(s) of  all  categories
           w.e.f. 29.1.1990.  In  this  respect  the  Field  Officers  have
           sought for a clarification  whether  the  period  spent  by  the
           trainee on training is to be treated as duty for all intents and
           purposes or not.

                 After considering the pros and cons of the  case,  it  has
           been decided that the period spent  by  the  trainee(s)  of  all
           categories on training shall be treated as duty for all  intents
           and purposes i.e. grant of  increment  in  accordance  with  the
           provisions as contained in the Policy, leave and seniority  i.e.
           from the date of joining in this cadre.”

                                                         [emphasis supplied]

14.   In  continuation  of  the  aforesaid  clarificatory  memorandum  dated
27.3.1991, the Board issued another  memorandum  on  22.11.1991.   The  said
clarification related to grant of regular pay scale to the trainees  of  all
categories and in that letter, it has been stated as follows: -

           “In this connection, it is stated that some field  offices  have
           sought for a clarification as to whether  the  benefit  for  the
           grant of annual increment under the provisions as  contained  in
           letter dated 27.3.91 is to be given to all trainee(s), who  were
           appointed during the year, 1987, 1988 & 1989 etc.”

15.   After referring to the issue which required clarification,  the  Board
clarified that it has decided that monetary benefits of  regular  pay  scale
had to be granted to the trainee(s)  of  all  categories  with  effect  from
29.1.1990 but the benefit of grant of annual increment under the  provisions
as contained in letter dated 27.3.1991 has to be given to the trainee(s)  of
all  categories  whose  services  have  been  regularized  on  29.1.1991  or
thereafter.  It had been further  stated  that  the  consequential  benefits
would accrue only from the date on which the  regular  pay  scale  has  been
granted to the trainees of all categories.

16.   As the facts have been further uncurtained, on  27.1.1998,  the  Board
introduced the  Assured  Career  Progression  Scheme  (for  short  “the  ACP
Scheme”) with the objective to provide such Board employees who fall  within
the scope of the Scheme at least two financial  upgradations  including  the
financial upgradation,  if  any,  availed  by  such  Board  employees  as  a
consequence  of  the  functional  promotion.   Clause  2  excludes   certain
categories of employees, namely, appointed on ad  hoc  basis,  work  charged
basis, part time paid out of contingencies and a daily  wager  from  getting
the benefit of the  Scheme.   Clause  3  deals  with  the  definitions.   It
defines in Clause 3(b) “direct recruit  fresh  entrant”.   The  same,  being
relevant, is reproduced below: -

           “(b)  “Direct Recruited Fresh Entrant” with reference to a  post
           or a Board Employee means the post on which such Board  employee
           was recruited as a regular and direct  recruitee  in  the  Board
           service and is in continuous  employment  of  Board  since  such
           recruitment;”

17.   Clause 5 deals with the eligibility for grant  of  ACP  Scales.   That
being the thrust of the controversy the relevant part of the said clause  is
reproduced below: -

           “5.   Eligibility for Grant of ACP Scales:

           (1)   Every Board employee who,  after  a  regular  satisfactory
                 service for a minimum period of 10 years, has not  got  any
                 financial upgradation in terms of  grant  of  a  pay  scale
                 higher than the functional pay  scale  prescribed  for  the
                 post as on 31.12.1995, on which he was recruited as  direct
                 recruited fresh entrant: -

                 (a)   either as a consequence of his  functional  promotion
                       in the hierarchy, or

                 (b)   as a consequence of the revision of pay scale for the
                       same post, or

                 (c)   as a consequence of any other event through which the
                       functional pay scale of the post has  been  upgraded,
                       with respect to the functional pay  scale  prescribed
                       for the post as on 31.12.1995, shall for the purposes
                       of drawal of pay; be eligible for placement into  the
                       First ACP scale with reference to him.

           (2)   Every Board employee who,  after  a  regular  satisfactory
                 service for a minimum period of 20 years, has not got  more
                 than one financial upgradation in terms  of  grant  of  pay
                 scale higher than the functional pay scale  prescribed  for
                 the post as on 31.12.1995 on which he was  recruited  as  a
                 direct recruited fresh entrant: -

                 (a)   either as a consequence of his  functional  promotion
                       in the hierarchy, or

                 (b)   as a consequence of the revision of pay scale for the
                       same post, or

                 (c)   as a consequences of any other  event  through  which
                       the  functional  pay  scale  of  the  post  has  been
                       upgraded, with respect to the  functional  pay  scale
                       prescribed for the post as on 31.12.1995,  shall  for
                       the purposes  of  drawal  of  pay;  be  eligible  for
                       placement into the First ACP scale with reference  to
                       him.

                 Provided that grant of ACP scale shall also  be  considered
                 financial upgradation for the purpose of this para.

           NOTE : For the purposes  of  this  scheme  regular  satisfactory
           service would mean continuous service counting towards seniority
           under H.S.E.B. including continuous service in  P.S.E.B.  before
           reorganization, commencing from the  date  on  which  the  board
           employee joined his service after being  recruited  through  the
           prescribed procedure  or  rules  regulations  etc.  for  regular
           recruitment, in the cadre in which he is working at the time  of
           being considered his eligibility for grant of ACP  scales  under
           this  scheme  and  further  fulfilling  all   the   recruitments
           prescribed for determining  the  suitability  of  grant  of  ACP
           scales.  The period spent on ad hoc basis; work  charged  basis;
           contingent basis and daily wages will not  be  counted  for  the
           purpose  of  counting   of   prescribed   length   of   “Regular
           Satisfactory Service” for this scheme.”

                                                         [emphasis supplied]

18.   In this backdrop, it is  to  be  seen  whether  the  period  spent  in
apprenticeship would be counted towards regular satisfactory  service.   The
learned single Judge as well as the Division Bench has  returned  a  finding
in favour of the respondents  solely  on  the  basis  of  the  clarificatory
letters and communications.  Before we advert to  the  quintessential  tenor
of the said communications, it is necessitous to understand  the  nature  of
appointment, the concept of an apprentice, his rights under the law and  the
basic ingredients of regular satisfactory service.

19.   As  has  been  stated  earlier,  the  respondents  were  appointed  as
apprentices ITI trainee for a period of two years.  Each of them  were  paid
a fixed salary of Rs.350/-.   After  completion  of  the  training,  it  was
mentioned in the letter of appointment that they may  be  appointed  to  the
post of Officiating Technical Grade-II in the pay  scale  of  Rs.400/700  on
temporary basis.

20.   Section 2(aa) of the Apprentices Act, 1961 (for short “the 1961  Act”)
defines “apprentice” which means a person who is  undergoing  apprenticeship
training in pursuance of a contract of apprenticeship.

21.   Section 2(aaa) defines “apprenticeship training” which means a  course
of training in any industry or establishment undergone  in  pursuance  of  a
contract of apprenticeship and under prescribed terms and  conditions  which
may be different  for  different  categories  of  apprentices.   Section  18
clearly states that apprentices are trainees and not workers.

22.   In U.P. State Electricity Board v. Shiv Mohan  Singh  and  Another[1],
A.K. Mathur, J., speaking for Hegde, J. and himself, while dealing with  the
status of apprentice, has stated thus: -
          “Therefore a combined reading of the sections as  well  as  Rules
          makes it clear  that  apprentices  are  only  persons  undergoing
          training and during that training they  are  entitled  to  get  a
          particular stipend, they have to work for fixed hours and at  the
          end of period of training they have to appear in the test  and  a
          certificate is issued to them. There is no obligation on the part
          of the employer to  give  them  any  employment  whatsoever.  The
          position of the apprentice remains as an apprentice  trainee  and
          during the period  of  training  they  will  not  be  treated  as
          workmen. Only obligation on the part of the employer is to impart
          them training as per provisions of the Act and Rules and  to  pay
          them stipend as required under Rule 11 and beyond that  there  is
          no obligation on the part of the employer to accept them  as  his
          employees and give them  the  status  of  workmen.  There  is  no
          relation of master and servant or employer and employee.”

23.   Be it noted, in the said case, in paragraph 51, it has been laid  down
that the 1961 Act is a  complete  code  in  itself  and  it  lays  down  the
conditions of the apprentices, their tenure, their terms and conditions  and
their obligations and what are the obligations  of  the  employer.  It  also
lays down that the apprentices are trainees  and  not  workmen  and  if  any
dispute arises, then the settlement has to be  made  by  the  Apprenticeship
Advisor as per Section 20 of the Apprentices  Act,  1961  and  his  decision
thereof is final. The nature and character of the apprentice is nothing  but
that of a trainee and he is supposed to enter into a contract and by  virtue
of that contract, he is to serve for a fixed period on a fixed  stipend  and
that does not change the character of the apprentice to that  of  a  workman
under the employer where he is undergoing the apprenticeship training.  Sub-
section (4) of Section 4  only  lays  down  that  such  contract  should  be
registered with the Apprenticeship Adviser, but by non-registration  of  the
contract, the position of the  apprentice  is  not  changed  to  that  of  a
workman. From the scheme of the Act, the apprentice  is  recruited  for  the
purpose of training as defined in Section  2(aa)  of  the  Apprentices  Act,
1961 and from the language employed in Sections 6 and 7,  it  is  more  than
clear that the nature and character of the apprentice is that of  a  trainee
only  and  on  the  expiry  of  the  training,  there  is  no  corresponding
obligation on the part of the employer to employ him.

24.   Thereafter, the majority, referring to Section 22 of the  Act,  opined
as follows: -
          “Section 22 makes it abundantly clear that  at  the  end  of  the
          apprenticeship training, it is not obligatory on the part of  the
          employer  to  offer  an  employment  to  an  apprentice  who  has
          completed the period of apprenticeship. It is only if  the  terms
          of the contract of the apprenticeship lay down a  condition  that
          on  successful  completion  of  an  apprenticeship  training,  an
          employer will offer him an employment then it  is  obligatory  on
          the part of the employer to do so. If there is no such  condition
          stipulated in  the  apprenticeship  contract  then  the  employer
          cannot be compelled to offer employment to  such  apprentice.  At
          the same time, it is not obligatory on the part of the apprentice
          to serve that employer if there is no such  stipulation  to  this
          effect. So it is a mutual thing and it depends on  the  terms  of
          contract. The survey of all these provisions of the Acts and  the
          Rules as mentioned above, makes it clear that the  character  and
          status of apprentice remains the same  and  he  does  not  become
          workman and labour laws are not attracted.”


      S.B. Sinha, J., in his concurring opinion, has stated thus: -
          “Moreover in terms of Section 22 of the Act, the employer has  no
          statutory liability to give employment to an apprentice.”


25.   In Narinder Kumar and Others v. The State of Punjab and  Others[2],  a
two-Judge Bench dwelt upon the letter  of  appointment  of  apprentices  and
came to hold that the employer was bound to appoint the apprentices  in  the
available vacancies because of  Section  22(2)  of  the  1961  Act  and  the
contractual obligations arising out of para 2 of the letter  of  appointment
which stated that the apprentices shall be absorbed  in  the  department  if
there are vacancies.  Be it noted, emphasis was laid on the  nature  of  the
contract.

26.   In Dhampur Sugar Mills Ltd. v. Bhola Singh[3], while dealing  with  an
award passed by the Labour Court under  the  U.P.  Industrial  Disputes  Act
relating to apprentices, a two-Judge Bench opined thus: -
          “14. If the respondent was appointed in terms of the  Apprentices
          Act, 1961, he will not be a workman, as has  been  held  by  this
          Court in Mukesh K. Tripathi v. Senior Divisional Manager,  LIC[4]
          and U.P. SEB v. Shiv Mohan Singh (supra).


          15. In terms of the provisions of the Apprentices  Act,  1961,  a
          trainee  or  an  apprentice  has  no  right  to  be  absorbed  in
          services.”



27. We have referred to the aforesaid pronouncements solely for the  purpose
   that an  apprentice  does  not  have  a  statutory  right  to  claim  an
   appointment and the employer is not under any  statutory  obligation  to
   give  him  employment.   However,  if  the  terms  of  the  contract  of
   apprenticeship lay down a condition that  on  successful  completion  of
   apprenticeship an employer would offer him an  employment,  then  it  is
   obligatory on his part to do so.  In the absence of  such  a  condition,
   there is no obligation.  It depends on the terms of  the  contract.   In
   the case at hand, as the letter of appointment would show, the  employer
   had only stated that on  successful  completion  of  the  training,  the
   apprentice may be  appointed  as  Plant  Attendant/Technician  Grade-II.
   Thus, it was not a mandatory term incorporated in the agreement  casting
   an obligation on the employer to appoint him.

28. Having dealt with the rights of an apprentice, we may presently  proceed
   to  dwell  upon   the   issue  
whether   any   of   the   clarificatory
   letters/circulars conferred any benefit on these employees so that  they
   could be treated to  be  in  regular  service.   
On  a  perusal  of  the
   notification issued by the Board, it is clear as crystal that it relates
   to two categories of direct recruits who shall undergo  training  for  a
   period  of  two  years  in  the  regular  pay  scale.   
Thus,  the  said
   notification has no application to apprentices who avail  the  training.
   In the clarification issued on 27.3.1991, there is a mention with regard
   to the regular pay scale in the notification dated 13.9.1990.  
The query
   was limited to the issue whether the training period of such  a  trainee
   would be counted for all intents and purposes or not.  
In that  context,
   it was clarified  that  the  period  spent  by  the  apprentice  of  all
   categories shall be treated as duty for all intents and purposes,  i.e.,
   for grant of increment in accordance with the provisions as contained in
   the policy, leave and seniority, i.e., from the date of joining in  this
   cadre.   
It  is  worth  noting  that  the  Board  had   issued   further
   clarification that the benefit of grant of annual  increment  under  the
   provisions as contained in the letter dated 27.3.1991 was to be given to
   the trainees of all categories whose services had  been  regularized  on
   29.1.1991 or thereafter, and the  consequential  benefit  should  accrue
   only from the date on which the regular pay scale has  been  granted  to
   the trainees of all categories.   
Clause  5  of  the  ACP  Scheme  which
   provides for eligibility criteria, in its note stipulates that  for  the
   purpose  of  the  scheme,  regular  satisfactory  service   would   mean continuous service counting towards seniority under the Board  including the continuous service in  PSEB  before  reorganization.  
It  has  been
 clearly stated that period spent on ad hoc basis,  work  charged  basis, contingent basis and daily wages would not be counted for the purpose of counting the prescribed length of regular satisfactory service  for  the scheme.
The respondents, as is evident,  were  appointed  on  different
   dates, i.e.,  30.10.1988,  17.10.1988  and  25.10.1988  respectively  as
   Technicians Grade-II in the pay scale on regular basis.  

Their period of probation was  for  two  years.  
The  letter/circular  dated  27.3.1991
   emphasizes the terms from the date of  joining  in  the  cadre.   As  is
   perceptible from the clarificatory letter dated 27.3.1991, the  trainees
   of all categories have been granted regular pay scale from 21.1.1990 and
   decision had been taken that the training  period  or  period  spent  as
   trainees of all categories shall be treated as duty for all intents  and
   purposes.  
On 20th of January, 1992, it was further clarified  that  the
   period spent by the trainees of all  categories  on  training  would  be
   counted as experience in service for the purposes of  promotion.   
On  a
   scrutiny of the promotion policy, the ACP Scheme and the communications,
   we find that the High  Court  has  erred  in  its  appreciation  of  the
   contents of the promotion policy and the conditions incorporated in  the
   scheme and the clarificatory letters issued from time to time and  their
   essential purport.
The  Board,  on  14.3.1990,  substituted  and  added
   certain clauses to  the  recruitment  and  promotion  policy.  
We  have
   reproduced the same earlier and on a proper scrutiny, it is  perceivable
   that 50% posts are to be  filled  by  direct  recruitment  from  amongst
   persons who have passed 2  years  ITI  course  with  Matric  as  minimum
   qualification and such  directly  recruited  Plant  Attendants  Grade-II
   would remain on training for a period of two years on  the  regular  pay
   scale of Plant Attendant Grade-II to be allowed by the Board  from  time
   to time, and the other 50% is be filled up by  direct  recruitment  from
   amongst persons who  have  passed  two  years  ITI  course  with  middle
   examination with two years experience or ITI one year course with middle
   examination and with three years  experience  of  similar  works.  
Such
   directly recruited Technician Grade-II shall remain on  training  for  a
   period of two years in the regular pay scale.  The clarificatory  letter
   has to be read in the said context and we are disposed to  think  so  as
   the persons appointed under the policy in  the  regular  pay  scale  are
   required to go on training.  The clarification sought related  to  grant
   of increment and computation of period that is spent as trainee  in  the
   capacity  of  Plant  Attendant  Grade-II  and  in  that   context,   the
   clarification issued was that the training of all categories on training
   would be counted.  It is worthy to note that the  respondents  were  not
   recruited under the said policy.  They were appointed as apprentices ITI
   trainee on 28.3.1987 and they were not given any kind of  post.   It  is
   only mentioned that they may be  appointed  as  Plant  Attendant  Grade-
   II/Technician Grade-II.  Thereafter, they were  appointed  on  different
   dates as Officiating Technician Grade-II.  The  regular  pay  scale  was
   given from the date of appointment.  Prior to that, it was a fixed  pay.
   They were not working on a post.  They did not belong to any cadre.   In
   fact, they were not recruited and, hence, the  term  trainee  which  has
   been referred to in various clarificatory letters has been  misconstrued
   by the High Court.

29. In view of the  aforesaid  analysis,  we  conclude  and  hold  that  the
   judgments rendered by the  learned  single  Judge  as  well  as  by  the
   Division Bench  are  unsustainable  and  are,  accordingly,  set  aside.
   However, we clarify that if any financial benefit had  been  availed  by
   the respondents, the same shall not be recovered, but  their  dates  for
   grant of ACP  Scale  shall  remain  as  determined  by  the  appellants.
   Accordingly, the appeal is disposed of.  The parties  shall  bear  their
   respective costs.



                                                             ……………………………….J.
                            [K. S. Radhakrishnan]



                                                             ……………………………….J.
                                                     [Dipak Misra]

New Delhi;
January  07, 2013

-----------------------
[1]    (2004) 8 SCC 402
[2]    AIR 1985 SC 275
[3]    (2005) 2 SCC 470
[4]    (2004) 8 SCC 387

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