an offence under Section 302 read with Section 34 IPC for murder = We are of the view, so far as this case is concerned, that the extreme sentence of capital punishment is not warranted. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW1, whose son, daughter-in-law and two grand children were murdered, we are of the view that the appellants deserve no sympathy. Considering the totality of facts and circumstances of this case we hold that imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, we hold that they must serve a minimum of thirty years in jail without remission. The sentence awarded by the trial court and confirmed by the High Court is modified as above. Under such circumstance, we modify the sentence from death to life imprisonment. Applying the principle laid down by this Court in Sandeep (supra), we are of the view that the minimum sentence of thirty years would be an adequate punishment, so far as the facts of this case are concerned. Appeal is partly allowed.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1055 OF 2006

Gurvail  Singh @ Gala & Another              .. Appellants
                                   Versus
State of Punjab                              .. Respondent


                               J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.    This criminal appeal  arises  out  of  the  judgment  dated  22.9.2006
passed by the High Court of Punjab and Haryana in Criminal Appeal  No.  890-
DB of 2005 and Murder Reference No. 10 of 2005.  The  High  Court  dismissed
the appeal of the accused persons and also reference was confirmed.

2.    The appellants, along with two  others,  were  tried  for  an  offence
under Section 302 read with Section 34 IPC for murder of one Kulwant  Singh,
his two sons – Gurwinder Singh and Davinder Singh and his  wife  –  Sarabjit
Kaur on 21.8.2000 at about  1.30  am  and  were  convicted  for  murder  and
awarded death sentence.

3.    The prosecution case, briefly stated, is as follows:
      Balwant Singh and Jaswant Singh are two sons of Sharam Singh  (PW  1).
Both Balwant Singh and Jaswant Singh died prior to the date of the  incident
on 21.8.2000.  Sharam Singh’s  third  son  Kulwant  Singh  had  two  sons  –
Gurwinder Singh and Davinder  Singh.   Sarabjit  Kaur  was  his  wife.   PW1
(Sharam Singh) had 8 acres of land at Village Bhittewad, District  Amritsar,
which was mutated in his name.  In the family partition,  that  8  acres  of
land was divided into four shares, i.e. PW1 gave 2 acres  of  land  each  to
his sons and wife and 2 acres of land was retained by him.    2nd  appellant
Jaj Singh and his brother Satnam Singh –  accused  and  his  mother  Amarjit
Kaur – accused, were pressurising on PW1 to  get  the  land  transferred  in
their names in the Revenue record.  PW1 wanted them to spend the  money  for
mutation, which was not done.  There were  frequent  quarrels  between  PW1,
2nd appellant and Amarjit Kaur on that.   They nurtured a feeling that  PW1,
under the influence of his son Kulwant Singh, would not mutate their  shares
in their names.  About 8 to 9 days prior to  the  incident,  2nd  appellant,
Satnam Singh and 1st appellant Gurvail Singh went to  the  house  of  PW1and
threatened him that in case he did not give their  share  in  the  land  and
mutated in their names, they would kill him and his son Kulwant  Singh.   On
20.8.2000, the appellants and other accused persons were found sitting on  a
cot outside the house of PW1, threatening PW1 and Kulwant  Singh  that  they
would not be spared, since the properties were not mutated in their names.


4.    PW1, on the intervening night of 20-21.8.2000,  was  sleeping  in  the
drawing room of his house and Kulwant Singh, his wife Sarabjir Kaur and  two
sons Gurwinder Singh and Davinder Singh were sleeping in the courtyard.   At
about 1-1.30 a.m. on 21.8.2000, PW1 heard somebody knocking at the  door  of
his house and he saw through the window the  appellants,  Satnam  Singh  and
Amarjit Kaur.  1st appellant was carrying  Toka,  2nd  appellant  was  armed
with Datar and Amarjit Kaur was carrying Kirpan.  2nd  appellant  Jaj  Singh
opened the attack and gave Datar blow  to  Kulwant  Singh  and  his  brother
Satnam Singh and inflicted Kirpan blows on  Sarabjit  Kaur.   1st  appellant
Gurvail Singh, who was armed with Toka, starting assaulting Gurwinder  Singh
and Davinder Singh.  PW1 tried to  intervene  and  avoid  the  incident  and
raised hue and cry, which attracted Dalbag Singh and he opened the  door  of
the Baithak room in which PW1  was  kept  locked.   Due  to  this  incident,
Kulwant Singh, his wife Sarabjit Kaur  and  two  sons  Gurwinder  Singh  and
Davinder Singh were murdered.

5.    PW1 gave the first  information  statement  to  PW7,  SHO,  Police  at
Police Station Raja Sansi.  The statement was recorded  in  the  morning  at
about 8.00 am.  The formal FIR was recorded at about 9.00 am  under  Section
302 read with Section 34 IPC at Police Station Raja Sansi, Amritsar.    S.I.
Mandip Singh, PW7, took up the investigation.  The  inquest  report  of  all
the four dead bodies was prepared and the bodies were sent for  post-mortem.
 The appellants Gurvail Singh and Jaj Singh were arrested on  25.8.2000  and
5.9.2001 respectively.   Satnam Singh was arrested on 25.8.2000 and  Amarjit
Kaur on 26.8.2000.   All the accused were charged for offence under  Section
302 read with Section 34 IPC.

6.    Dr. Gurmanjit Rai, PW2 conducted the  autopsy  on  the  dead  body  of
Kulwant Singh on 21.8.2000.  According to him, all the injuries  were  ante-
mortem in nature and the cause of death of Kulwant Singh  was  severance  of
neck structure. According to him, injury no. 2 sustained  by  Kulwant  Singh
was sufficient for causing death in the ordinary  course  of  nature.    Dr.
Gurmanjit Rai also conducted the post-mortem on the dead  body  of  Sarabjit
Singh on the same day and opined that the cause of death  was  severance  of
neck structure and injury no. 2 was sufficient  for  causing  death  in  the
ordinary course of nature.   Dr. Amarjit Singh PW9 conducted the autopsy  on
the dead bodies of Gurwinder Singh and Davinder Singh and  opined  that  the
death was due to severance of neck structure, which was sufficient to  cause
death  in  the  ordinary  course  of  nature.       On  the  side   of   the
prosecution, PW1 to PW10 were examined and for the defence DW1 to  DW6  were
examined.

7.    The trial Court,  after  considering  all  the  oral  and  documentary
evidence, found all the accused guilty under Section 302 read  with  Section
34 IPC.   The trial Court noticed that Satnam Singh was below  18  years  of
age and was Juvenile and hence he was sent to  the  Juvenile  Justice  Board
for passing the necessary orders in accordance with the  provisions  of  the
Juvenile Justice (Care and Protection of Children) Act,  2000.   So  far  as
Amarjit Kaur is concerned, the Court on evidence found that she  had  played
a prominent role and hence was awarded  life  imprisonment  and  a  fine  of
Rs.2,000/- under Section 302 IPC for each of the murders and, in default  of
payment of fine, to further undergo one year RI and all the  sentences  were
directed to run concurrently.  So far as Gurvail Singh (1st  appellant)  and
Jaj Singh (2nd appellant) are concerned, the trial Court took the view  that
it is they who had mercilessly murdered Kulwant  Singh  and  also  Gurwinder
Singh and Davinder Singh.  The trial Court found no  mitigating  factors  in
their favour and held that the case would fall in the  category  of  “rarest
of rare  cases”.   Consequently,  they  were  convicted  and  awarded  death
sentence.

8.    Both Gurvail Singh and Satnam Singh  filed  appeals  before  the  High
Court of Punjab and Haryana, which were heard along Murder Reference No.  10
of 2005 and the High Court also concurred with the views of the trial  Court
and took the view that it was a fit case where the  death  sentence  is  the
adequate punishment, since it falls within the category of “rarest  of  rare
cases”, against which this appeal has been preferred.

9.    Shri Rishi Malhotra,  learned  counsel  appearing  on  behalf  of  1st
appellant and Shri Tara Chandra Sharma, learned counsel appearing on  behalf
of 2nd appellant, confined their arguments  more  on  the  sentence,  rather
than on the findings recorded by the Courts  below  on  conviction,  in  our
view  rightly.   We  have  gone  through  the  entire  evidence,  oral   and
documentary and we are of the considered opinion, that no grounds have  been
made out to upset the well considered judgment of the trial  court  as  well
as that of the High Court.  Learned counsel, at  length,  placed  before  us
the various mitigating circumstances which,  according  to  them,  were  not
properly addressed either by the trial Court or the High Court  and  wrongly
awarded the death sentence to both  the  appellants  treating  the  case  as
“rarest of rare cases”.   The  appellant  was  arrested  on  25.8.2000  and,
since then, he is in jail and he was about 34 years of age on  the  date  of
incident and is married and has four children.  2nd appellant  was  aged  22
years at the time of incident.   Looking  to  the  age  of  the  appellants,
learned counsel submitted that the  possibility  of  their  reformation  and
rehabilitation cannot be ruled out.  Further, it is also  pointed  out  that
the antecedents of the appellants are unblemished and they had not  indulged
in any criminal activities and it was property dispute which  culminated  in
the death of few persons.  Learned counsels pointed out that since they  had
already undergone sufficient number of years in jail, they may be set  free.
 Learned counsels also placed reliance on the judgments  of  this  Court  in
Bachan Singh v. State of  Punjab  (1980)  2  SCC  684,  Bachitar  Singh  and
Another v. State of  Punjab  (2002)  8  SCC  125,  Prakash  Dhawal  Khairner
(Patel)  v.  State  of  Maharashtra  (2002)  2   SCC   35,   Santosh   Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498,  Ramesh  and
Others v. State of Rajasthan (2011) 3 SCC 685,  Sandeep  v.  State  of  U.P.
(2012) 6 SCC 107 etc.

10.   Shri Jayant K. Sud, learned  Additional  Advocate  General,  State  of
Punjab, appearing on behalf of the State, on the other hand, submitted  that
the appellants deserve no sympathy, since they  were  instrumental  for  the
death of four persons – Kulwant Singh, his wife Sarabjit Kaur and  two  sons
Gurwinder Singh and Davinder Singh.  Shri Sud submitted that the  appellants
had wiped off the entire family in the presence of PW1 and,  therefore,  the
appellants deserve no sympathy  and  the  case  clearly  calls  for  extreme
penalty of capital punishment.  Shri Sud also submitted that the murder  was
committed in  an  extremely  brutal,  grotesque,  diabolical,  revolting  or
dastardly manner so as to arouse  intense  and  extreme  indication  of  the
community, and hence appellants deserve no  sympathy.   Reference  was  also
made to the judgment of this Court  in  Machhi  Singh  v.  State  of  Punjab
(1983) 3 SCC 470 and submitted that none  of  the  mitigating  circumstances
laid down by the Court would come to the rescue of the appellants so  as  to
escape them from capital punishment.

11.   This Court has recently in Sangeet  &  Another  v.  State  of  Haryana
(2012) 11 SCALE 140 (in which one of us – K. S. Radhakrishnan - was  also  a
member) elaborately discussed the principles which have to be applied  in  a
case when the Court is called upon to determine whether the case  will  fall
under the category  of  “rarest  of  rare  cases”  or  not.   The  issue  of
aggravating and mitigating circumstances has been elaborately dealt with  by
this Court in para 27 of  that  judgment.    This  Court  noticed  that  the
legislative change  and  Bachan  Singh  discarding  proposition  (iv)(a)  of
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, Machhi  Singh  revived  the
“balancing” of aggravating and mitigating circumstances  through  a  balance
sheet theory.  In doing so, it sought to compare  aggravating  circumstances
pertaining to a crime with the  mitigating  circumstances  pertaining  to  a
criminal.  This Court held that these are completely distinct and  different
elements and cannot be compared with one another and a balance sheet  cannot
be drawn up of two distinct  and  different  constituents  of  an  incident.
Reference was also made to the judgment of this Court in Swami  Shraddananda
(2) v. State of Karnataka (2008) 13 SCC 767, and this Court opined that  not
only does the aggravating  and  mitigating  circumstances  approach  need  a
fresh look but the necessity of adopting this approach also  needs  a  fresh
look in the light of the conclusions in  Bachan  Singh.    This  Court  held
that even though Bachan Singh intended “principled  sentencing”,  sentencing
has now really become judge-centric as  highlighted  in  Swamy  Shraddananda
and Bariyar.   The ratio of crime and criminal  has  also  been  elaborately
dealt with in Sangeet, so also the  standardization  and  categorization  of
crimes.  This Court noticed that despite Bachan Singh, the particular  crime
continues to play any more important role than “crime and criminal”.

12.   This Court in Sangeet  noticed  that  the  circumstances  of  criminal
referred to in Bachan Singh appear to have taken a bit of back seat  in  the
sentencing process and took the view, as already indicated,  balancing  test
is not the correct test  in  deciding  whether  the  capital  punishment  be
awarded or not.  We may, in this case, go a little further and  decide  what
will be the test that we can  apply  in  a  case  where  death  sentence  is
proposed.

13.   We notice that, so far as this case is concerned,  appellants  do  not
deserve  death  sentence.   Some  of  the   mitigating   circumstances,   as
enunciated in Machhi Singh, come  to  the  rescue  of  the  appellants.  Age
definitely is a factor which cannot be  ignored,  though  not  determinative
factor in all fact situations.     The probability that the accused  persons
could be reformed and rehabilitated is also a factor to be  borne  in  mind.
To award death sentence, the aggravating circumstances (crime test) have  to
be fully satisfied and there should be no mitigating circumstance  (criminal
test) favouring the accused.  Even  if  both  the  tests  are  satisfied  as
against the accused, even then the Court has to finally apply the Rarest  of
Rare Cases test (R-R Test), which depends on the perception of  the  society
and not “judge-centric”, that  is  whether  the  society  will  approve  the
awarding of death  sentence  to  certain  types  of  crime  or  not.   While
applying this test, the Court has to  look  into  variety  of  factors  like
society’s abhorrence, extreme indignation and antipathy to certain types  of
crimes like rape  and  murder  of  minor  girls,  especially  intellectually
challenged minor girls,  minor  girls  with  physical  disability,  old  and
infirm women with those disabilities etc.  examples  are  only  illustrative
and  not  exhaustive.   Courts  award  death  sentence,  because   situation
demands, due to constitutional compulsion, reflected  by  the  will  of  the
people, and not Judge centric.

14.   We are of the view, so  far  as  this  case  is  concerned,  that  the
extreme sentence of capital punishment is not warranted.  Due  to  the  fact
that the appellants are instrumental for  the  death  of  four  persons  and
nature of injuries  they  have  inflicted,  in  front  of  PW1,  whose  son,
daughter-in-law and two grand children were murdered, we  are  of  the  view
that the appellants deserve no sympathy.  Considering the totality of  facts
and circumstances of this case we hold that imposition of death sentence  on
the appellants was not warranted but while  awarding  life  imprisonment  to
the appellants, we hold that they must serve a minimum of  thirty  years  in
jail without remission.   The  sentence  awarded  by  the  trial  court  and
confirmed by the High Court is modified as above.  Under such  circumstance,
we modify the sentence from  death  to  life  imprisonment.    Applying  the
principle laid down by this Court in Sandeep (supra), we  are  of  the  view
that the minimum sentence of thirty years would be an  adequate  punishment,
so far as the facts of this case are concerned.
      Appeal is partly allowed.



                                      .......................................
                                      .....J.
                                      (K. S. RADHAKRISHNAN)


                                      .......................................
                                      .....J.
                                      (DIPAK MISRA)
New Delhi,
February 07, 2013

General Education Department of the State of Kerala= students bogus recordical admissions. - whether the High Court was justified in directing the Secretary, General Education Department of the State of Kerala to get the verification of the actual students’ strength in all the aided schools in the State with the assistance of the police and to take appropriate action.- A great responsibility is, therefore, cast on the General Education Department to curb such menace which not only burden the State exchequer but also will give a wrong signal to the society at large. The Management and the Headmaster of the school should be a role model to the young students studying in their schools and if themselves indulge in such bogus admissions and record wrong attendance of students for unlawful gain, how they can imbibe the guidelines of honesty, truth and values in life to the students. We are, however, of the view that the investigation by the police with regard to the verification of the school admission, register etc., particularly with regard to the admissions of the students in the aided schools will give a wrong signal even to the students studying in the school and the presence of the police itself is not conducive to the academic atmosphere of the schools. In such circumstances, we are inclined to set aside the directions given by the Division Bench for police intervention for verification of the students’ strength in all the aided schools. 18. We are, however, inclined to give a direction to the Education Department, State of Kerala to forthwith give effect to a circular dated 12.10.2011 to issue UID Card to all the school children and follow the guidelines and directions contained in their circular. Needless to say, the Government can always adopt, in future, better scientific methods to curb such types of bogus admissions in various aided schools. 19. We, however, find no reason to interfere with the direction given by the DPI to take further action to fix the liabilities for the irregularity committed in the school for the years 2008-09 and 2009-10, for which the appeal is pending before the State Government. The State Government will consider the appeal and take appropriate decision in accordance with law, if it is still pending. Appeal is allowed as above without any order as to costs.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO. 958           OF 2013
                   (Arising out of SLP(C) No.9162 of 2011)

State of Kerala and others                              ….. Appellants

                                   Versus


President, Parent Teacher Assn. SNVUP and others  … Respondents


                               J U D G M E N T




K.S. Radhakrishnan, J.


1.    Leave granted.



2.    We are in this appeal concerned with the  question
 whether  the  High
Court  was  justified  in  directing  the   Secretary,   General   Education
Department of the State of Kerala to get  the  verification  of  the  actual
students’  strength  in  all  the  aided  schools  in  the  State  with  the
assistance of the police and to take appropriate action.



3.    The Assistant Educational Officer (AEO), Valappad had fixed the  staff
strength of S.N.V.U.P. School, Thalikulam for the year 2008-09 based on  the
visit report of High School Association (SS), GHS Kodakara as  per  Rule  12
of Chapter XXIII of  Kerala  Education  Rules  (KER).   Later,  based  on  a
complaint regarding bogus admissions and irregular  fixation  of  staff  for
the year  2008-09  by  the  AEO,  the  Super  Check  Cell,  Malabar  Region,
Kozhikode made a surprise visit in the school on 17.09.2008  and  physically
verified the  strength  of  the  students  and  noticed  undue  shortage  of
attendance on that day.  The strength verified by the Super Check  Cell  was
not sufficient for allowing the divisions and posts sanctioned by  the  AEO.
The Head  Master  of  the  School,  however,  stated  in  writing  that  the
shortfall of attendance on the day of inspection was due to “Badar  Day”  of
Muslim community and due to distribution of rice  consequent  to  that.   In
order to confirm the genuineness of the facts stated  by  the  Head  Master,
the Cell again visited the school on 16.12.2008.  Verification could not  be
done on that day, hence the Cell again visited the school on 02.02.2009  and
physically verified the students’ strength.  On that day  also,  there  were
large number of absentees as noticed  on  17.09.2008.   On  verification  of
attendance register, it was found that  the  class  teachers  of  respective
classes had given bogus presence to all students on  almost  all  the  days.
Enquiry  revealed  that  the  school  authorities  had  obtained  the  staff
fixation order for the year 2008-09 through bogus recordical admissions.



4.     The  Director  of  Public  Instructions   (DPI),   Thiruvananthapuram
consequently issued a notice dated 07.05.2009 to the Manager of  the  School
of his proposal to revise roll strength and revision of  staff  strength  by
reducing one division each in Std. I, II, IV to VII and 2 divisions in  Std.
III and consequent posts of 5 LPSAs, 3 UPSAs in the school during  the  year
2008-09.   The  Manager  of  the  school  responded  to  the   notice   vide
representation dated 27.05.2009 stating that Super Check Officials  did  not
record the attendance particulars of the students in the  visit  record  and
had tampered with the attendance register.  The  Manager  had  also  pointed
out that the Headmaster was not responsible to compensate the loss  suffered
by the Department by way of paying salary to the teachers who had worked  in
the sanctioned posts.  Further, it was  also  pointed  out  that  the  staff
fixation should not be done within the academic  year  and  re-fixation  was
not permissible as per Rule 12E(3) read with Rule 16 of Chapter  XXIII,  KER
and requested not to reduce the class divisions.



5.    The DPI elaborately heard the lawyers  appearing  for  the  Headmaster
and the Manager of the school, affected teachers as well  as  the  officials
of the Super Check Cell.  Having heard the  submissions  made  and  perusing
the records made available, the DPI found that the  staff  fixation  of  the
school for the year  2008-09  was  obtained  through  bogus  admissions  and
misrepresentation of facts.  DPI noticed that the roll strength  during  the
year 2008-09 was 1196.  There were 404 absentees on the first visit  of  the
Cell on 17.09.2008.  The Super  Check  Cell  again  visited  the  school  on
16.12.2008 and 02.02.2009 and it was found that among  404  students  absent
on the first day, 179  names  were  bogus  and  irregular  retentions.   The
physical presence of 179 students could not be verified  on  all  the  three
occasions.  DPI, therefore, passed an order revising the staff  fixation  of
the school for the year 2008-09 as per Rule  12(3)  read  with  Rule  16  of
Chapter XXIII of KER.  Consequently, the total number of  divisions  in  the
school was reduced to 23 from 31.  In the Order dated  08.09.2009,  the  DIP
had stated as follows:



        “The Headmaster is responsible for  the  admission,  removals,  and
        maintenance  of  records  and  for  the  supervision  of  work   of
        subordinates.  It is the duty of the verification officer to verify
        the strength correctly and to unearth the irregularities.   Due  to
        the irregular fixation of staff, the State exchequer  has  incurred
        additional and unnecessary expenditure by way of pay and allowances
        for 8 teachers and expenditure incurred in connection with  payment
        of various scholarships, lump-sum grant, noon-feeding,  free  books
        etc to the bogus students.  These loss sustained to the  Government
        will be recovered from the Headmaster of the school  who  alone  is
        responsible for all the above irregularities.”





6.    The DPI also directed to take further action to  fix  the  liabilities
and recover the amount from the Headmaster under intimation to DPI  and  the
Super Check Officer, Kozhikode.  The Headmaster and Manager of  the  school,
aggrieved by the above-mentioned order, filed  a  revision  petition  before
the State Government.  The High Court vide its judgment dated  7.12.2009  in
Writ Petition (C) No.  35135  of  2009  directed  the  State  Government  to
dispose of the revision petition.



7.    The higher level verification was also conducted in  the  school  with
regard to the staff fixation for the year 2009-10 and  on  verification,  it
was found that many of the students in the school records  were  only  bogus
recordical admissions.  Following that, the AEO issued staff fixation  order
for the year 2009-10 vide proceedings dated 27.03.2010.



8.     Meanwhile,  the  President  of  the   Parent   Teachers   Association
(Respondent No.1 herein) filed WP (C) No. 12285  of  2010  before  the  High
Court seeking a direction to the AEO to reckon the entire  students  present
in the school on the 6th  working  day  and  higher  level  verification  of
District Education Officer (DEO) on 13.01.2010  for  the  purpose  of  staff
fixation for the year 2009-10 and also for a declaration that the  exclusion
of the students who were present on the day of higher level verification  on
13.01.2010 from the staff fixation order 2009-10 was illegal  and  also  for
other consequential reliefs.



9.    Learned Single Judge of the High Court dismissed the Writ Petition  on
07.04.2010 stating that  the  Parent  Teachers  Association  have  no  locus
standi  in  challenging  the  staff  fixation  order.   The   judgment   was
challenged in  W.A  No.1195  of  2010  by  the  President,  Parent  Teachers
Association before the Division Bench  of  the  High  Court  and  the  Bench
passed an interim order on 14.07.2010.  The operative portion  of  the  same
reads as follows:-



        “The inspection team has recorded that  as  many  as  179  students
        whose  names  and  particulars  are  furnished,   represent   bogus
        admissions  for  record  purposes.   If   admission   register   is
        manipulated by recording bogus  admissions  in  the  name  of  non-
        existing students  or  students  of  other  institutions,  we  fell
        criminal action also is called for against the school  authorities.
        Since appellant has denied the findings in the  inspection  report,
        we fell a police enquiry is called for  the  in  the  matter.   We,
        therefore,  direct  the  Superintendent  of  Police,  Thrissur   to
        constitute a team of Police Officers to go through  Ext.P1,  verify
        the registered maintained  by  the  school  authorities,  take  the
        addresses as shown in the school records and conduct field  enquiry
        as to whether the students are real persons and if so, whether they
        are really studying in this school or elsewhere.  In  other  words,
        the result of the enquiry is to confirm to this court  whether  the
        students whose names are in the record of the school are  real  and
        if so, whether they are  students  in  this  school  or  any  other
        school.”



The Bench also directed to  the  Superintendent  of  Police  to  submit  his
report within one month.



10.   The Superintendent of Police, following the  direction  given  by  the
High Court, constituted a team under the leadership of the Circle  Inspector
of Police, Valappad and the team conducted detailed enquiry  in  respect  of
all the matters directed to be examined by the police.   The  Superintendent
of Police submitted the report dated 20.09.2010 which reads as follows:



        “On the enquiry about the 187 students (179+8) which  were  alleged
        as bogus admissions as per Ext.P1, it  is  revealed  that  only  72
        students were studied in S.N.V.U.P. School during the period  2008-
        09 and 80  students  were  studied  in  some  other  schools.   The
        addresses of 23 students have not been traced  out  even  with  the
        help of postman of the concerned area.  On the enquiry it  is  also
        revealed that 4 students vide  the  admission  Nos.  13008,  11875,
        12883 and 13876 mentioned in Ext.P1, have not been studied anywhere
        during that period.




        The details of the  187  students,  revealed  in  the  enquiry  are
        mentioned below:-

        1. Actual No. of students studied in SNVUP
        School, Thalikulam during 2008-2009            72


        2. No. of Students studied in some other schools     80


        3. No. of students whose address
           have not been trace out                           23


        4. No. of students have not been studied
        anywhere                                       04


        5. No. of students removed from the rolls.
        Immediately after strength inspection                         08

                                                  -----
                    Total                                     187
                                                              -----

        The report of the enquiry, submitted by  the  Circle  Inspector  of
        Police, Valappad showing the  details  of  each  students  is  also
        produced herewith.”







11.   The Division Bench  of  the  High  Court  after  perusing  the  report
submitted by the Superintendent of Police found that neither the finding  of
the DPI based on inspections by Super  Check  Cell  nor  the  claim  of  the
Parent Teachers Association was correct since the police had found  that  at
least 72 out of 187 students declared bogus by the DPI  were  real  students
of the school.  The High Court, therefore,  concluded  manipulation  by  the
school management was obvious, though not to the extent found by  the  Super
Check Cell based on which DPI had passed the impugned order.   The  Division
Bench expressed  anguish  that  the  management  had  included  80  students
studying in other schools as students of the present school.   It  was  also
noticed that as many as 23 students could not be traced by the  police  with
the help of the postman, were also included in the register.



12.   The Division Bench concluded that since  the  Super  Check  Cell,  the
Education Department lacked the investigating  skill  or  the  authority  to
collect information from  the  field,  it  would  be  appropriate  that  the
verification of actual students in all the aided schools in the State  would
be done through the police.  Holding so, the High Court gave  the  following
direction:



        “We, therefore, feel as in this case Police should be entrusted  to
        assist the Education Department by  conducting  enquiry  about  the
        actual and real students studying in  every  aided  school  in  the
        State and pass on the same to the Education Department for them  to
        fix or re-fix the staff strength based on the data furnished by the
        Police.   We,  therefore,  direct  the  Secretary,  Department   of
        Education, to get verification of the actual students  studying  in
        all the  aided  schools  in  the  State  done  through  the  police
        authorities and take appropriate action.  It would be open  to  the
        Government to  consider  photo  or  finger  identification  of  the
        students for avoiding manipulation in the  school  registers.   The
        Government is directed to complete the process by the end  of  this
        academic year and file a report in this court.”






13.   The State of Kerala, aggrieved by the various directions given by  the
Division Bench, has preferred this appeal.  Ms. Liz Mathew, learned  counsel
appearing for the State of Kerala submitted that  the  High  Court  was  not
justified in giving a direction to the Secretary,  Education  Department  in
entrusting the task to State Police for  verification  of  actual  students’
strength in all the aided schools, while the enquiry is being  conducted  by
the Education Department.   Learned counsel submitted that Kerala  Education
Act and Rules did not prescribe any mechanism for  conducting  enquiries  by
the police at the time of staff fixation.  The method to be adopted  in  the
fixation of staff in various schools is prescribed under  Chapter  XXIII  of
KER and police have no role.  The Rules empower the AEO,  the  DEO  and  the
Super Check Cell etc. to conduct enquiries but not by the  police.   Learned
counsel also pointed out that the presence of the police  personnel  in  the
aided schools in the States  would  not  only  cause  embarrassment  to  the
students studying in the school but would also cast wrong impression on  the
minds of the students about the conduct of their  Headmaster,  teachers  and
staff of the school.



14.   We notice that the State itself had  admitted  in  the  petition  that
there should be a better mechanism to ascertain the number  of  students  in
the aided schools which could be  done  by  finger  printing  or  any  other
modern system so that the students could be properly  identified  and  staff
fixation could be done on  the  basis  of  relevant  data.   We,  therefore,
directed the State to evolve a better mechanism to overcome situations  like
the one which has occurred in the school.   Fact  finding  authorities  have
categorically found that the school authorities had  made  bogus  admissions
and made wrong recording of  attendance  which  led  to  the  irregular  and
illegal fixation of staff strength of the school for the years  2008-09  and
2009-10.



15.   An additional affidavit has been filed by the State of Kerala  stating
that the Government  after  much  thought  and  deliberations  formulated  a
scientific method to resolve the issue emanating from staff fixation  orders
every year.  The affidavit says that the number of students  in  the  school
can be determined through Unique Identification Card  (UID)  technology  and
the number of divisions could be arrived at on the basis  of  revised  pupil
teacher ratio.  Further, it is also pointed out  that  after  implementation
of UID as a part of scientific  package,  the  government  will  remand  the
matter of identification of bogus  admission  to  the  DPI  for  considering
issues afresh after corroborating the findings of Super Check Cell with  UID
details of the students.  The State  has  issued  a  circular  No.  NEP  (3)
66183/2011 dated 12.10.2011 which, according to the State, would  take  care
of such situations happening in various aided schools in the State.



16.   We are of the view even though the Division Bench  was  not  justified
in directing police intervention, the situation that has  unfolded  in  this
case is the one that we get in many aided schools in  the  State.  
 Many  of
the aided schools in the State, though not all, obtain staff fixation  order
through bogus  admissions  and  misrepresentation  of  facts.   
Due  to  the
irregular fixation of staff, the  State  exchequer  incurs  heavy  financial
burden by way of pay and allowances.  
The State has also  to  expend  public
money in connection with  the  payment  of  various  scholarships,  lump-sum
grant, noon-feeding, free books etc. to the bogus students.



17.   A great responsibility is, therefore, cast on  the  General  Education
Department to curb such menace which not only  burden  the  State  exchequer
but also will give a wrong signal to the society at large.  
 The  Management
and the Headmaster of the school  should  be  a  role  model  to  the  young
students studying in their schools and if themselves indulge in  such  bogus
admissions and record wrong attendance of students for  unlawful  gain,  how
they can imbibe the guidelines of honesty, truth and values in life  to  the
students.    
We are, however, of the view  that  the  investigation  by  the
police with regard to the verification of  the  school  admission,  register
etc., particularly with regard to the admissions  of  the  students  in  the
aided schools will give a wrong signal even to the students studying in  the
school and the presence of  the  police  itself  is  not  conducive  to  the
academic atmosphere of the schools.  
In such circumstances, we are  inclined
to set  aside  the  directions  given  by  the  Division  Bench  for  police
intervention for verification of the students’ strength  in  all  the  aided
schools.



18.   We are, however,  inclined  to  give  a  direction  to  the  Education
Department, State of Kerala to forthwith give effect  to  a  circular  dated
12.10.2011 to issue UID Card to all  the  school  children  and  follow  the
guidelines and directions contained in their  circular.   Needless  to  say,
the Government can always adopt, in future,  better  scientific  methods  to
curb such types of bogus admissions in various aided schools.



19.   We, however, find no reason to interfere with the direction  given  by
the DPI to take further action to fix the liabilities for  the  irregularity
committed in the school for the years 2008-09 and  2009-10,  for  which  the
appeal is pending before the State Government.  The  State  Government  will
consider the appeal and take appropriate decision in  accordance  with  law,
if it is still pending.  Appeal is allowed as above without any order as  to
costs.







                                             ………………………….J.
                                             (K.S. Radhakrishnan)




                                             ………………………….J.
                                             (Dipak Misra)

New Delhi,

February 6, 2013

service matter = The controversy in hand is yet another illustration of the denial of a legitimate claim, of an innocent citizen. Rather than appreciating the claim raised by the respondent before the High Court through SWP no.1156 of 2009, to which the appellants failed to even file their response, the same was ordered to be closed by an order dated 5.4.2010. = a waiting list was valid for one year. The fact that the prevalent rules envisaged, that the merit list of candidates in continuation of those offered appointment, would constitute the waiting list, and would be valid for a period of one year, was not disputed even before us.= it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade-II. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondent will be entitled to seniority immediately below those who were appointed from the same process of selection. Since Sat Pal has not discharged his duties, he would be entitled to wages only with effect from the date of the instant order.

                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 938-939 OF  2013
              (Arising out of SLP (C) Nos. 31591-31592 of 2012)


State of J&K & Ors.                                …. Appellants

                                   Versus

Sat Pal                                            …. Respondent


                               J U D G M E N T


JAGDISH SINGH KHEHAR, J.

1.    Leave granted.
2.    The Public Works Department of the State of Jammu & Kashmir  conducted
a process  of  selection,  for  recruitment  against  the  posts  of  Junior
Engineer (Civil) Grade-II.  
Sat Pal, the respondent herein  participated  in
the aforesaid process of selection.  He  was  successful,  inasmuch  as,  he
figured in the  final  merit/select  list  of  scheduled  caste  candidates,
prepared at the culmination of the selection process.   
Having  learnt  that
some scheduled cast candidates above him in the merit/select  list  had  not joined inspite of having been  offered  appointment,  Sat  Pal  addressed  a representation to the appellants seeking appointment  against  an  available vacancy. 
In his representation, he mentioned the name  of  Trilok  Nath  as
one of the selected candidates, who had been offered  appointment,  but  had
not joined.  
In his  representation,  he  also  pointed  out,  that  in  the
merit/select list  pertaining  for  scheduled  caste  candidates,  his  name
figured immediately after the name of the said Trilok Nath.
3.    Since the representation filed by the respondent  remained  undecided,
he approached the High Court  of  Jammu  &  Kashmir  at  Jammu  (hereinafter
referred to as, the High Court) by filing SWP no. 1156 of 2009.  
Before  the
High Court, the respondent Sat Pal reiterated the factual position  asserted
by him in his representation.  
To substantiate his assertion  pertaining  to
Trilok Nath, that although  the  aforesaid  Trilok  Nath  had  been  offered
appointment  against  the  post  of  Junior  Engineer  (Civil)  Grade-II  on
22.4.2008, Trilok Nath had not joined against the same,   he  placed  before
the High Court a communication dated 5.5.2008 issued by the  Chief  Engineer
(R&B) Department, Jammu, narrating that Trilok Nath was  not  interested  to
join against the post of Junior Engineer (Civil) Grade-II.
4.    Before the High Court, the respondent relied upon the prevalent  rule,
whereunder, 
a waiting list was valid  for  one  year.   The  fact  that  the prevalent  rules  envisaged,  that  the  merit   list   of   candidates   in continuation of those offered  appointment,  would  constitute  the  waiting list, and would be valid for a period of one year,  was  not  disputed  even before us.
5.    Despite the High Court having issued notice to  the  State  Government
in SWP no.1156 of 2009, and had required it to  file  pleadings,  the  State
Government i.e.,  the  appellants  before  this  Court,  did  not  file  any
objections.  The right of the appellants to file objections  was  closed  by
an order dated 5.4.2010.
In the  aforesaid  view  of  the  matter,  it  was
natural for the High Court  to  infer,  that  the  assertions  made  by  the
respondent  before  it,  were  truthful   and   acceptable   for   a   final
determination of the controversy.  
Despite the aforesaid, the  High  Court
disposed  of  the  aforesaid  writ  petition  at  the  admission  stage,  by
directing the appointing authority to examine the claim of  the  respondent,
for appointment against the post of Junior  Engineer  (Civil)  Grade-II,  by
keeping in mind  the  communication  dated  5.5.2008  issued  by  the  Chief
Engineer (R&B) Department,  Jammu,  affirming  that  Trilok  Nath,  who  was
offered appointment against the post under reference, had declined to  join.
 The High Court required the appellants herein to take a final  decision  in
respect of the appointment  of  the  respondent,  within  a  period  of  two
months, from the date a copy of  the  order  of  the  High  Court  was  made
available.
6.    In compliance of the directions issued by the High  Court  vide  order
dated 9.8.2010 in SWP no. 1156 of 2009, the appellants passed  an  order  on
23.8.2011.
By the said order dated 23.8.2011, the claim of  the  respondent
for appointment against the post of Junior  Engineer  (Civil)  Grade-II  was
rejected for the following reasons:-
      “(i)  In view of the fact that the waiting list issued in  respect  of
           the recruitment has outlived its validity way back in May,  2008
           itself, he cannot be granted appointment in accordance with  the
           same.

      (ii)  And that for the abovesaid reason, vacancies cannot be filled at
           a belated stage.”

7.     Aggrieved  by  the  rejection  order  dated  23.8.2011,  rather  than
assailing the same by way of a fresh writ  petition,  the  respondent  filed
Contempt (SWP) no.  157  of  2011.   
The  aforesaid  contempt  petition  was
disposed of by  the  High  Court  vide  order  dated  29.10.2011,  with  the
following observations:-
      “The claim of the petitioner for his appointment  as  Junior  Engineer
      (Civil) Grade-II arose during the validity of select  list/wait  list.
      The duty was cast on the competent authority, who was  seized  of  the
      select list/wait list to fill up the vacancies from the wait list, but
      it failed to perform its duty.  It is not the fault of the  petitioner
      that his claim for appointment was not considered during the  validity
      of select list/wait list.  The fault is committed by the authority and
      the petitioner cannot penalized  for  the  same.   The  claim  of  the
      petitioner on merits deserved to be allowed for being appointed on the
      post of Junior Engineer (Civil) Grade-II when  select  list/wait  list
      was in operation.  Same having not been done  despite  request  having
      been made, his right of consideration for being appointed  would  thus
      survive though such claim was considered by the Government  after  the
      expiry of the validity period of select list/wait list.

            Consideration order issued by the  Government  does  not  comply
      with the court directions.  Before initiating action for framing  rule
      in this contempt  petition,  it  will  be  appropriate  to  afford  an
      opportunity to the respondents to consider the whole  issue  and  pass
      orders in accordance with judgment of the Court.  Four week’s time  is
      granted to the respondents to reconsider the whole issue in the  light
      of the observations made hereinabove and file compliance report by  or
      before next date.”

8.    The appellants herein were aggrieved by the order passed by  the  High
Court in Contempt (SWP) no. 157 of 2011 filed by the respondent,  since  the
appellants felt, that the directions in the  nature  recorded  by  the  High
Court  (in  the  order  extracted  hereinabove),  were  not  permissible  in
exercise of contempt jurisdiction.  It is, therefore,  that  the  appellants
preferred a letters patent appeal (LPAC no.2 of 2012) to  assail  the  order
dated 29.10.2011 passed by the High Court  in  Contempt  (SWP)  no.  157  of
2011.  The letters patent bench, by its order dated 3.4.2012, held the  said
letters patent appeal as not maintainable.  The orders passed  by  the  High
Court dated 29.10.2011 and 3.4.2012 have been  assailed  by  the  appellants
before this Court, by way of present appeals.
9.    The controversy in hand is yet another illustration of the  denial  of
a legitimate claim, of an innocent citizen.  Rather  than  appreciating  the
claim raised by the respondent before the High Court through SWP no.1156  of
2009, to which the appellants failed to even file their response,  the  same
was ordered to be closed by an order dated  5.4.2010. 
 Thereupon  appellants
have chosen to pursue a course, which would sideline the  main  controversy.
The course adopted would neither serve their own purpose,  nor  the  purpose
of the respondent Sat Pal.
10.         It is not a matter of  dispute,  that  the  respondent  Sat  Pal
participated in a process of selection for recruitment against the  post  of
Junior Engineer (Civil) Grade-II.
It is also not in dispute, that his  name
figured in the merit/select list  of  scheduled  caste  candidates.
 Trilok
Nath, who had been offered appointment against the post of  Junior  Engineer
(Civil) Grade-II on 22.4.2008, did not  join,  despite  the  said  offer  of
appointment.
The instant fact is fully substantiated from the  order  dated
5.5.2008 issued by the Chief Engineer (R&B) Department, Jammu.  Even  though
candidates who were higher in merit, were offered appointment  to  the  post
of Junior Engineer (Civil) Grade-II, for which recruitment  was  held,  some
of such posts remained vacant on account of the fact that persons higher  in
merit to the respondent Sat Pal had declined to join,  despite  having  been
offered appointment.
Atleast one such vacancy offered to Trilok Nath  never
came to be filled up.  In such a situation, the claim of the respondent  Sat
Pal whose name figured in the merit/select list, ought to have been  offered
appointment against the said post.
The claim of respondent  Sat  Pal  could
not have been repudiated, specially on account of his  assertion,  that  his
name  in  the  merit/select  list   amongst   Scheduled   Caste   candidates
immediately below the name of Trilok Nath, was  not  disputed  even  in  the
pleadings before this Court.  It is not the case of  the  appellants  before
this  Court,  that  any  other  candidate  higher  than  Sat  Pal   in   the
merit/select list is available out of Scheduled Caste  candidates,  and  can
be offered the post against which Trilok Nath had not joined.
11.   In view of  the  factual  position  noticed  hereinabove,  the  reason
indicated by the appellants in declining the claim  of  the  respondent  Sat
Pal for appointment out of the  waiting  list  is  clearly  unjustified.   A
waiting list would start to operate only  after  the  posts  for  which  the
recruitment is  conducted,  have  been  completed.   A  waiting  list  would
commence to operate, when offers of appointment have been  issued  to  those
emerging on the top of the merit list.  The existence  of  a  waiting  list,
allows room to the appointing authority to fill  up  vacancies  which  arise
during the subsistence of the waiting list.  A  waiting  list  commences  to
operate, after the vacancies for which  the  recruitment  process  has  been
conducted have been filled up.  In the  instant  controversy  the  aforesaid
situation for operating the waiting list had not arisen, because one of  the
posts of Junior Engineer (Civil) Grade-II for which the recruitment  process
was conducted was actually never filled up. For the reason that Trilok  Nath
had not  assumed  charge,  one  of  the  posts  for  which  the  process  of
recruitment was conducted, had remained vacant.  That apart, even if  it  is
assumed for arguments sake, that all the posts  for  which  the  process  of
selection was conducted were duly filled up,  it  cannot  be  disputed  that
Trilok Nath who had participated  in  the  same  selection  process  as  the
respondent herein, was  offered  appointment  against  the  post  of  Junior
Engineer (Civil) Grade-II on  22.4.2008.   The  aforesaid  offer  was  made,
consequent upon his selection in  the  said  process  of  recruitment.   The
validity of the waiting  list,  in  the  facts  of  this  case,  has  to  be
determined with reference to 22.4.2008, because the vacancy was  offered  to
Trilok Nath on 22.4.2008.
 It is the said vacancy, for which the  respondent
had approached the  High  Court.   As  against  the  aforesaid,  it  is  the
acknowledged position recorded by  the  appellants  in  the  impugned  order
dated 23.8.2011 (extracted above), that the  waiting  list  was  valid  till
May, 2008. If Trilok Nath was found eligible  for  appointment  against  the
vacancy in question out of the same  waiting  list,  the  respondent  herein
would be equally eligible for appointment against the  said  vacancy.
 This
would be the unquestionable  legal  position,  in  so  far  as  the  present
controversy is concerned.
12.   The date of filing of the  representation  by  the  parties  concerned
and/or the date on which the competent authority  chooses  to  fill  up  the
vacancy in question, is of no consequence  whatsoever.  
The  only  relevant
date is the date of arising of the vacancy.  It would be a  different  legal
proposition,  if  the  appointing  authority  decides  not  to  fill  up  an
available vacancy, despite the availability of  candidates  on  the  waiting
list.
The offer made to Trilok Nath on 22.4.2008 by  itself,  leads  to  the
inference that the vacancy under reference arose within the  period  of  one
year, i.e., during the period of validity of the waiting list postulated  by
the  rules.  
The  offer  of  the  vacancy  to  Trilok  Nath,  negates   the
proposition posed above, i.e., the desire of the employer  not  to  fill  up
the vacancy.
Herein, the appellants wished to fill  up  the  vacancy  under
reference.  Moreover, this is not a case where the  respondent  was  seeking
appointment against a vacancy, over  and  above  the  posts  for  which  the
process of selection/ recruitment was  conducted.  Based  on  the  aforesaid
inference, we have no hesitation in concluding that the appellants ought  to
have appointed the  respondent  Sat  Pal,  against  the  vacancy  which  was
offered to Trilok Nath.
13.    The  issue  arising  for  consideration  herein,  has  already   been
adjudicated upon by this Court.  In the  first  instance  reference  may  be
made to the decision rendered by this Court in Virender S. Hooda   v.  State
of  Haryana  (1999)  3  SCC  696.   In  the  instant   case   administrative
instructions envisaged, that vacancies which came into existence within  six
months of the date of  recommendation  by  the  Public  Service  Commission,
could be filled up from the earlier process of selection.  The  observations
made by this Court on the  instant issue,  in  the   aforesaid   background,
are being  extracted below:
      “…..The fact that there were further vacancies available  and  when  9
      vacancies were advertised to be filled  up  within  a  period  of  six
      months after announcement of the previous selection cannot be disputed
      at all.  In terms  of  the  circulars  issued  by  the  Government  on
      22.3.1957 and 26.5.1972 when such vacancies arise  within  six  months
      from  the  receipt  of  the  recommendation  of  the  Public   Service
      Commission they  have  to  be  filled  up  out  of  the  waiting  list
      maintained by the Commission.  In respect of the vacancies which arise
      after the expiry of six months it is necessary to send the requisition
      to the Commission.  It is also made clear that if the Commission makes
      recommendations regarding a post  to  the  Department  and  additional
      vacancies occur in the Department within a period of six months on the
      receipt of the recommendations, then the vacancies which  occur  later
      on can be filled in from amongst the additional candidates recommended
      by the Commission.  It is urged  on  behalf  of  the  appellants  that
      letter dated 7.1.1992 indicated that the cadre strength in the Haryana
      Civil Service (Executive Branch) was  440  and  the  officers  filling
      these posts were around 129 and there was a shortfall of  111  and  23
      posts had to be filled up by direct recruitment.  Thus  12  posts  for
      direct recruitment were vacant when the advertisement for  recruitment
      was made which was held in  1991.   Therefore,  the  appellants’  case
      ought to have been considered when some  of  the  vacancies  arose  by
      reason of non-appointment of some of the candidates.   Therefore,  the
      Government ought to have considered the case of the appellants as  per
      the rank obtained by them and the appellants had to  be  appointed  if
      they came within the range of selection.  Thus  when  these  vacancies
      arise within the period of  six  months  from  the  date  of  previous
      selection the circulars are attracted and hence the view of  the  High
      Court that vacancies arose after selection process  commenced  has  no
      relevance and is contrary to the declared policy of the Government  in
      the matter to fill up such posts from the waiting list.”


This Court has  also  considered  the  same  issue  wherein  there  were  no
rules/administrative instructions for filling up vacancies from the  waiting
list.
While examining the aforesaid issue this Court  in  Mukul  Saikia  v.
State of Assam, (2009) 1 SCC 386, held as under:
      “At the outset it should be noticed that the select list  prepared  by
      APSC could be used to fill  the  notified  vacancies  and  not  future
      vacancies.  If the requisition  and  advertisement  was  only  for  27
      posts, the  State  cannot  appoint  more  than  the  number  of  posts
      advertised, even  though  APSC  had  prepared  a  select  list  of  64
      candidates.  The select list got exhausted when all the 27 posts  were
      filled.  Thereafter, the candidates below the 27 appointed  candidates
      have no right to claim appointment to any vacancy in regard  to  which
      selection was not held.   The fact that evidently and  admittedly  the
      names of the appellants appeared in the select  list  dated  17.7.2000
      below the persons who have been appointed on merit against the said 27
      vacancies, and as such they could not have been appointed in excess of
      the number of posts advertised as the  currency  of  select  list  had
      expired as soon as the number  of  posts  advertised  are  filled  up,
      therefore, appointment beyond the number  of  posts  advertised  would
      amount to filling up future vacancies meant for direct  candidates  in
      violation of quota rules.  Therefore, the appellants are not  entitled
      to claim any relief for themselves.  The  question  that  remains  for
      consideration is whether there  is  any  ground  for  challenging  the
      regularisation of the private respondents.”


The determination  rendered  by  this  Court  in  the  aforesaid  judgments,
substantiates the view expressed by us in the foregoing paragraphs.
14.   It is in the background of the aforesaid factual and  legal  position,
that  the  High  Court  recorded  some  observations  in  its  order   dated
29.10.2011  passed  in  Contempt  (SWP  no.157  of  2011).   The   aforesaid
observations  were  advisory  in  nature.   Rather  than  initiating  action
against the appellants for having missed the point,  while  considering  the
claim of the respondent in contempt jurisdiction,  the  High  Court  in  its
wisdom required the appellants to  correct  the  mistake  committed  by  the
appellants.  The High Court did not, in the  first  instance,  initiate  any
coercive action against the  appellants.   In  the  aforesaid  view  of  the
matter it  is  apparent,  that  the  appellants  unnecessarily  preferred  a
letters  patent  appeal  to  assail  the  order  of  the  High  Court  dated
29.10.2011, on a technical plea, that the High  Court  in  exercise  of  its
contempt jurisdiction could not have dealt with the merits of the  claim  of
the respondent.  The same issue is being pursued now before us on  technical
grounds of maintainability of the letters patent  appeal  preferred  by  the
appellants before the High Court (out of  which  the  instant  appeals  have
arisen).
15.   In so far as the technical objections  raised  by  the  appellants  is
concerned, reliance, in  the  first  instance  was  placed  by  the  learned
counsel on Prithawi Nath Ram v. State of Jharkhand & Others,  (2004)  7  SCC
261, wherein this Court opined, that a court in  exercise  of  its  contempt
jurisdiction, dealing with an application alleging  non  compliance  of  its
earlier order, could not examine the rightness or wrongness of  that  order,
nor could it issue further directions.
 Reliance was  also  placed  on  V.M.
Manohar Prasad v. N. Ratnam Raju & Anr., (2004) 13  SCC  610,  
wherein  this
Court held, that a contempt court was precluded  from  adjudicating  on  the
merits of a controversy by passing any supplemental order,  in  addition  to
the order non compliance of which, was  the  basis  of  initiating  contempt
proceedings.  
Finally, reliance was placed on Midnapore Peoples’ Coop.  Bank
Ltd. & others v. Chunilal Nanda & Others (2006) 5 SCC 399, dealing with  the
maintainability of an intra-court appeal against  an  order  passed  by  the
High Court in exercise of its contempt jurisdiction.
16.   It is not as if the pleas raised at the hands of  the  appellants  are
not fully legitimate.  
In the facts and  circumstances  of  this  case,  for
reasons which would emerge from our  instant  order,  we  would  decline  to
invoke the jurisdiction vested in us under Article 136 of  the  Constitution
of India, for debating and deciding the  technical  pleas  advanced  by  the
appellants.  
We would rather invoke our jurisdiction under  Article  142  of
the Constitution of India for doing complete justice in the cause  in  hand.
Entertaining the instant appeals would defeat the ends of justice for  which
the respondent Sat Pal had approached  the  High  Court.   
Entertaining  the
objections filed by the  appellants  would  result  in  deviating  from  the
merits of the claim raised by  the  respondent  Sat  Pal,  before  the  High
Court.
17.   It gives us no pleasure to record that the State is not an  adversary,
and ought not have behaved in the manner it has  chosen  in  the  facts  and
circumstances of this case.  
In the first instance, it failed to  even  file
a response before the High Court, to the  writ  petition  preferred  by  the
respondent Sat Pal.  
The matter could have been adjudicated on  merits,  had
the High Court chosen to do so. 
 In order to  ensure  that  justice  to  the
respondent  was  not  delayed,  the  High  Court  considered  it  just   and
appropriate to direct the appointing authority to consider the claim of  the
respondent, consequent upon Trilok Nath having declined to join the post  of
Junior Engineer (Civil) Grade-II.  
Mainly because, the  respondent  Sat  Pal
had approached the High Court for relief, the appellants rejected his  claim
for wholly unreasonable grounds.  
Rather than focusing on the merits of  the
claim raised by  respondent  Sat  Pal,  the  appellants  chose  to  initiate
proceedings which would deviate the legal process from  the  merits  of  the
claim of respondent.  
Had we issued notice to respondent Sat  Pal  based  on
the technical pleas raised by the appellants, the  respondent  Sat  Pal  may
not even have been in a  position  to  defend  himself  before  this  Court.
Litigation  before  this  Court,  is  an  expensive  proposition.   
A   poor
scheduled caste candidate cannot be subjected to unnecessary  harassment  at
the hands of the mighty State.  
It is for the aforesaid  reasons,  that  the
instant order is being passed, for doing complete  justice  in  the  instant
cause.
18.    In  view  of  the  factual  and  legal  position  discussed   by   us
hereinabove, we are of the view, that in  the  facts  and  circumstances  of
this case, 
it would be just and appropriate  to  direct  the  appellants  to
appoint the respondent Sat Pal against the post of Junior  Engineer  (Civil)Grade-II.  The aforesaid offer  of  appointment  will  relate  back  to  the permissible date contemplated under the  rules  laying  down  conditions  of service of the cadre to which the respondent  Sat  Pal  will  be  appointed.
Naturally, the respondent will be entitled to  seniority  immediately  below those who were appointed from the same process of selection.  
Since Sat  Pal has not discharged his duties, he would  be  entitled  to  wages  only  with effect from the date of the instant order.
15.   Disposed of in the aforesaid terms.

                                       …………………………….J.
                                        (P. Sathasivam)



                                        …………………………….J.
                                        (Jagdish Singh Khehar)
New Delhi;
February 5, 2013.
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