M.V.Act - Accident claim -Insurance claim- Medical student aged 19 years - future prospects should be considered as if he is a doctor - age of parents should be considered for multiplications but not deceased - in the absence of evidence , no contributory negligence deduction should be allowed - funeral expenses Rs.25000/- and loss of affection Rs.one lakh should be given - Trial court and High court went wrong - Apex court set aside the same and allowed as above said = CIVIL APPEAL NOS. 8131-8132 OF 2014 (Arising out of SLP(C) NOS. 743-744 OF 2014) ASHVINBHAI JAYANTILAL MODI …APPELLANT Vs. RAMKARAN RAMCHANDRA SHARMA & ANR. ….RESPONDENTS = 2014-Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41960

M.V.Act - Accident claim -Insurance claim- Medical student aged 19 years - future prospects should be considered as if he is a doctor - age of parents should be considered for multiplications but not deceased - in the absence of evidence , no contributory negligence deduction should be allowed - funeral expenses Rs.25000/- and loss of affection Rs.one lakh should be given - Trial court and High court went wrong - Apex court set aside the same and allowed as above said =

the High Court affirmed the  future  income  of
the deceased at Rs.18,000/- per month as  determined  by  the  Tribunal  and
deducted 50% towards personal expenses.
It further held  that  the  Tribunal
had erred in considering the age of the deceased at the time  of  his  death
rather than the age of the parents for determination  of  multiplier,  since
they are the claimants in the case on hand, as per the guidelines laid  down
in Sarla Verma & Ors. v. Delhi Transport Corporation &  Anr.[1].
Therefore,
by applying the appropriate multiplier of 13, the High Court determined  the
loss  of  dependency  at  Rs.14,04,000/-  as   against   Rs.23,04,000/-   as
considered by the Tribunal.
After examining the facts, evidence produced  on
record and circumstances of the case, the High Court was of  the  view  that
the contributory negligence on the part of  the  deceased  was  higher  than
20%, however, it affirmed the contributory negligence as determined  by  the
Tribunal.
Therefore, after 20%  deduction  towards  contributory  negligence
and addition towards other heads, the High Court, by its  impugned  Judgment
and order awarded a compensation under all heads of Rs.11,39,200/-  with  9%
interest per annum. Aggrieved by the same, the  appellant  has  filed  these
appeals.=
The  deceased  was  a
diligent and outstanding student of medicine  who  could  have  pursued  his
M.D. after his  graduation  and  reached  greater  heights.  Today,  medical
practice is one of the most sought after  and  rewarding  professions.  With
the tremendous increase in demand for medical professionals, their  salaries
are also on the rise.  
Therefore, we  have  no  doubt  in  ascertaining  the
future income of the deceased at Rs.25,000/- p.m.  i.e.  Rs.3,00,000/-  p.a.
Further, deducting 1/3rd of the annual income towards personal  expenses  as
per Oriental Insurance Co. Ltd. v. Deo Patodi and Ors[4], and  applying  the
appropriate multiplier of 13, keeping in mind the age of the parent  of  the
deceased, as per the guidelines laid down in Sarla Verma  case  (supra),  we
arrive at a total loss of dependency at Rs.26,00,000/-[(Rs.3,00,000/-  minus
1/3 X Rs.3,00,000/-)X 13]. =
We are of the considered view,  that  to
be able to create this kind of enormous effect on  the  two-wheeler  of  the
deceased, the offending truck must have been travelling  at  a  fairly  high
speed and that its driver did not have sufficient control over his  vehicle.
The driver of the offending  truck  should  have  been  aware  that  he  was
driving the heavy motor vehicle and taken sufficient caution. We do not  see
any direct evidence that shows negligence on the part of the  deceased  that
led to the accident. Therefore, as per the  principles  laid  down  by  this
Court in the case  referred  to  above  in  this  aspect,  the  contributory
negligence apportioned by the courts below on the part of  the  deceased  is
set aside.=
The Tribunal and the  High  Court  have  further  failed  in  awarding  only
Rs.5,000/- towards funeral expenses instead of Rs.25,000/- according to  the
principles laid down by this Court in  Rajesh  &  Ors.  v.  Rajbir  Singh  &
Ors.[7]. Hence, we award Rs.25,000/- towards the same.
In the result, the appellant shall be entitled  to  compensation  under  the
following heads:

|1.       |Loss of dependency         |Rs.26,00,000/-           |
|2.       |Loss of love and affection |Rs.1,00,000/-            |
|3.       |Funeral expenses           |Rs.25,000/-              |
|         |TOTAL                      |Rs.27,25,000/-           |

Thus, the total compensation payable to the  appellant  by  the  respondent-
Insurance Company will be Rs.27,25,000/- with interest at  the  rate  of  9%
p.a. from the date of filing of the application till the date of payment.
 Accordingly,  we  allow  these  appeals  in  awarding  Rs.27,25,000/-  with
interest @9% p.a. The respondent-Insurance Company shall either pay  by  way
of demand draft in  favour  of  the  appellant  or  deposit  the  same  with
interest as  awarded  before  the  Motor  Accidents  Claims  Tribunal  after
deducting the amount already paid to  the  appellant,  if  any,  within  six
weeks from the date of receipt of the copy of this judgment
2014-Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41960

                        IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 8131-8132 OF 2014
                (Arising out of SLP(C) NOS. 743-744 OF 2014)


ASHVINBHAI JAYANTILAL MODI              …APPELLANT

                                     Vs.

RAMKARAN RAMCHANDRA SHARMA & ANR.     ….RESPONDENTS



                               J U D G M E N T



  V. GOPALA GOWDA, J.

These appeals have been filed by the appellant against the  impugned  common
Judgment and order dated 18.6.2013 passed in First Appeal No. 1064  of  2005
with First  Appeal  No.1555  of  2005  by  the  High  Court  of  Gujarat  at
Ahmedabad, wherein the High Court dismissed First  Appeal  No.1064  of  2005
which was filed by the claimant and allowed First  Appeal  No.1555  of  2005
which was filed by the Insurance Company.
The necessary relevant facts are stated hereunder  to  appreciate  the  case
with a view to determine whether the appellant, Ashvinbhai Jayantilal  Modi,
the father of Raj (deceased) is  entitled  for  relief  as  prayed  in  this
appeal.
On 12.07.2002, Raj Ashvinbhai, the deceased was  heading  to  Istanpur  from
Uttamnagar on his two-wheeler. While  on  his  way,  near  Bhadvatnagar  bus
stand,  a  truck  bearing  registration  no.  GQA  7215  belonging  to   the
respondent, Ramkaran Ramchandra  Sharma  crashed  into  the  two-wheeler  on
which Raj was riding. Due to the force created by this accident, Raj’s  two-
wheeler slid for about 25 feet while Raj fell down  and  sustained  grievous
injuries. Thereupon he was taken to L.G. Hospital wherein  he  succumbed  to
his injuries. On the same day,  a  panchnama  was  filed  before  the  Vatva
Police Station, Ahmedabad.
The claimant-appellant filed a claim petition  before  the  Motor  Accidents
Claims  Tribunal  (in  short  ‘the   Tribunal’)   at   Ahmedabad,   claiming
Rs.28,73,000/- as compensation. The Tribunal ascertained the  future  income
of the deceased at Rs.18,000/- per month. 1/3rd of the  monthly  income  was
deducted  towards  personal  expenses.  Therefore,  Rs.12,000/-  per   month
(Rs.1,44,000/- p.a.) was calculated  for  the  loss  of  dependency  to  the
parents of the deceased. Since the age of the deceased at the  time  of  his
death was 19 years, on applying the appropriate multiplier of 16, the  total
compensation towards loss of dependency was  arrived  at  Rs.23,04,000/-.  A
sum of Rs.15,000/- was awarded towards love  and  affection  and  Rs.5,000/-
towards funeral expenses and thus a  total  compensation  of  Rs.23,24,000/-
was arrived at  by  the  Tribunal.  The  Tribunal  apportioned  contributory
negligence at 20% on the part of the deceased and 80% on the driver  of  the
offending truck and thus, after making  20% deduction  towards  contributory
negligence on the part of the deceased the Tribunal  awarded  an  amount  of
Rs.18,59,200/- with interest at the rate of 9% per annum to the appellant.
Being aggrieved by the judgment  and  award  passed  by  the  Tribunal,  the
appellant preferred First Appeal No.1064 of 2005 before the High  Court  for
enhancement of compensation, whereas the  2nd  respondent-Insurance  Company
preferred  First  Appeal  No.1555  of  2005  for  the  reduction   of    the
compensation awarded by the Tribunal.
  After hearing the parties, the High Court affirmed the  future  income  of
the deceased at Rs.18,000/- per month as  determined  by  the  Tribunal  and
deducted 50% towards personal expenses. It further held  that  the  Tribunal
had erred in considering the age of the deceased at the time  of  his  death
rather than the age of the parents for determination  of  multiplier,  since
they are the claimants in the case on hand, as per the guidelines laid  down
in Sarla Verma & Ors. v. Delhi Transport Corporation &  Anr.[1].  Therefore,
by applying the appropriate multiplier of 13, the High Court determined  the
loss  of  dependency  at  Rs.14,04,000/-  as   against   Rs.23,04,000/-   as
considered by the Tribunal. After examining the facts, evidence produced  on
record and circumstances of the case, the High Court was of  the  view  that
the contributory negligence on the part of  the  deceased  was  higher  than
20%, however, it affirmed the contributory negligence as determined  by  the
Tribunal. Therefore, after 20%  deduction  towards  contributory  negligence
and addition towards other heads, the High Court, by its  impugned  Judgment
and order awarded a compensation under all heads of Rs.11,39,200/-  with  9%
interest per annum. Aggrieved by the same, the  appellant  has  filed  these
appeals.

It has been contended by the learned Senior Counsel for  the  appellant  Mr.
Fakriddin that the offending truck hit the two-wheeler  from  behind.  As  a
result, the deceased fell down  and  his  two-wheeler  was  dragged  by  the
offending truck up to a distance of about 25 feet. Thus, the finding of  the
Tribunal as well as the High Court towards contributory  negligence  of  the
deceased at 20% is uncalled for. Further it  was  contended  that  the  High
Court has reduced the compensation  from  Rs.18,59,200/-  to  Rs.11,39,200/-
which is contrary to the principles laid down  by  this  Court  in  Sanobanu
Nazirbhai Mirza & Ors.  Vs.  Ahmedabad Municipal Transport Service[2].

On the other hand, the learned Counsel for the  respondents  contended  that
the High Court has rightly reduced the compensation  by  deducting  50%  for
personal expenses of the deceased since he was unmarried at the time of  his
death and adopted a multiplier of 13 by considering the age of  the  parents
as per the guidelines laid down by this Court in the  case  of  Sarla  Verma
(supra).
We have heard the learned counsel for the parties. In our  considered  view,
the deceased was 19 years old and was pursuing his medical degree with  good
marks at the time of the accident. With respect  to  the  future  income  of
students pursuing professional courses we refer to Arvind  Kumar  Mishra  v.
New India Assurance Co. Ltd. and Anr.[3], wherein this Court held as under:-

“14.  On  completion  of  Bachelor  of  Engineering  (Mechanical)  from  the
prestigious institute like B.I.T., it can  be  reasonably  assumed  that  he
would have got a good job. The appellant has stated in his evidence that  in
the campus interview he was selected by Tata as well as Reliance  Industries
and was offered pay package of Rs. 3,50,000/- per annum.  Even  if  that  is
not accepted for want of any evidence in support thereof,  there  would  not
have been any difficulty for him in getting some decent job in  the  private
sector. Had he decided to join  government  service  and  got  selected,  he
would have been put in the pay scale for Assistant Engineer and  would  have
at least earned Rs. 60,000/- per annum. Wherever he joined, he  had  a  fair
chance of some promotion and  remote  chance  of  some  high  position.  But
uncertainties of  life  cannot  be  ignored  taking  relevant  factors  into
consideration. In our opinion, it is  fair  and  reasonable  to  assess  his
future earnings at Rs. 60,000/- per annum taking the salary  and  allowances
payable to an Assistant Engineer in public employment as the basis….”


The Tribunal and the High Court have not  taken  into  proper  consideration
that the deceased was a student of medicine at  the  time  of  the  accident
while  determining  his  future  income.  The  courts  below  have   wrongly
ascertained the future income  of  the  deceased  at  only  Rs.18,000/-  per
month, which in our view is too less for  a  medical  graduate  these  days.
Therefore, the courts below have failed in  following  the  principles  laid
down by this Court in this aspect in the above  case.  The  deceased  was  a
diligent and outstanding student of medicine  who  could  have  pursued  his
M.D. after his  graduation  and  reached  greater  heights.  Today,  medical
practice is one of the most sought after  and  rewarding  professions.  With
the tremendous increase in demand for medical professionals, their  salaries
are also on the rise.  Therefore, we  have  no  doubt  in  ascertaining  the
future income of the deceased at Rs.25,000/- p.m.  i.e.  Rs.3,00,000/-  p.a.
Further, deducting 1/3rd of the annual income towards personal  expenses  as
per Oriental Insurance Co. Ltd. v. Deo Patodi and Ors[4], and  applying  the
appropriate multiplier of 13, keeping in mind the age of the parent  of  the
deceased, as per the guidelines laid down in Sarla Verma  case  (supra),  we
arrive at a total loss of dependency at Rs.26,00,000/-[(Rs.3,00,000/-  minus
1/3 X Rs.3,00,000/-)X 13].
Further, the Tribunal and the High Court have erred  in  not  following  the
principles laid down by this Court in M.  Mansoor  &  Anr  v.  United  India
Insurance Co. Ltd.[5] in awarding a meagre sum  of  just  Rs.15,000/-  under
the heads of loss of love and affection. Accordingly, we award Rs.1,00,000/-
 to the appellant towards the same.
With regard to the apportionment made by the Tribunal and  the  High  Court,
we are of the view,  after  considering  the  facts,  evidence  produced  on
record and circumstances of the case on hand, that there was  no  negligence
on the part of the deceased. The courts below have  failed  to  examine  the
facts of the case on hand with respect to the opinion of  this  Court  given
in Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[6]
      From the evidence produced on record, the two-wheeler of the  deceased
was dragged up to a stretch of about  20-25  feet  on  the  road  after  the
collision with the offending truck. We are of the considered view,  that  to
be able to create this kind of enormous effect on  the  two-wheeler  of  the
deceased, the offending truck must have been travelling  at  a  fairly  high
speed and that its driver did not have sufficient control over his  vehicle.
The driver of the offending  truck  should  have  been  aware  that  he  was
driving the heavy motor vehicle and taken sufficient caution. We do not  see
any direct evidence that shows negligence on the part of the  deceased  that
led to the accident. Therefore, as per the  principles  laid  down  by  this
Court in the case  referred  to  above  in  this  aspect,  the  contributory
negligence apportioned by the courts below on the part of  the  deceased  is
set aside.
The Tribunal and the  High  Court  have  further  failed  in  awarding  only
Rs.5,000/- towards funeral expenses instead of Rs.25,000/- according to  the
principles laid down by this Court in  Rajesh  &  Ors.  v.  Rajbir  Singh  &
Ors.[7]. Hence, we award Rs.25,000/- towards the same.
In the result, the appellant shall be entitled  to  compensation  under  the
following heads:

|1.       |Loss of dependency         |Rs.26,00,000/-           |
|2.       |Loss of love and affection |Rs.1,00,000/-            |
|3.       |Funeral expenses           |Rs.25,000/-              |
|         |TOTAL                      |Rs.27,25,000/-           |

Thus, the total compensation payable to the  appellant  by  the  respondent-
Insurance Company will be Rs.27,25,000/- with interest at  the  rate  of  9%
p.a. from the date of filing of the application till the date of payment.
 Accordingly,  we  allow  these  appeals  in  awarding  Rs.27,25,000/-  with
interest @9% p.a. The respondent-Insurance Company shall either pay  by  way
of demand draft in  favour  of  the  appellant  or  deposit  the  same  with
interest as  awarded  before  the  Motor  Accidents  Claims  Tribunal  after
deducting the amount already paid to  the  appellant,  if  any,  within  six
weeks from the date of receipt of the copy of this judgment. No Costs.




                                                ……………………………………………………………………J.
                        [V.GOPALA GOWDA]



                                                ……………………………………………………………………J.
                        [ADARSH KUMAR GOEL]


New Delhi,
September 25,2014


-----------------------
[1]
      [2] (2009)6 SCC 121
[3]
      [4] (2013) 9 SCR 882
[5]
      [6] (2010) 10  SCC 254
[7]
      [8] (2009)13 SCC 123
[9]
      [10]   2013 (12) SCALE 324
[11]
      [12] (2013)9 SCC 166
[13]
      [14]  (2013) 9 SCC 54

-----------------------
|NON REPORTABLE    |

Sec.302 I.P.C.- Sec.304 Part II I.P.C. - Trial court sentenced under sec.302 , High court confirmed the same - Apex court held that since the scuffle took place in a heat of passion and in absence of cruelty - the accused is entitled for the benefit of Section 300 Exception 4, IPC but not liable to be punished for life - only for 10 years = CRIMINAL APPEAL NO. 111 of 2008 MURLIDHAR SHIVRAM PATEKAR & ANR. ……APPELLANTS VS. STATE OF MAHARASHTRA ……RESPONDENT = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41959

Sec.302 I.P.C.- Sec.304 Part II I.P.C. - Trial court sentenced under sec.302 , High court confirmed the same - Apex court held that since the scuffle took place in a heat of passion and in absence of cruelty - the accused is entitled for the benefit of Section 300 Exception  4,  IPC but not liable to be punished for life - only for 10 years = 

the  inevitable
conclusion is that the act of the accused-appellants was  not  a  cruel  act
and the accused did not take undue advantage of the  deceased.  The  scuffle
took place in the heat of passion and all  the  requirements  under  Section
300 Exception  4,  IPC  have  been  satisfied.  Therefore,  the  benefit  of
Exception 4 under Section 300, IPC is attracted to the fact  situations  and
both the appellants are equally entitled to this benefit.

20.   Thus, considering the factual background and the  legal  position  set
out above, the inevitable conclusion is that the appropriate  conviction  of
the appellants would be under Section 304 Part II  IPC  instead  of  Section
302 IPC. Hence, the sentence of imprisonment for 10  years  would  meet  the ends of justice.=

2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx filename=41959

REPORTABLE

                  IN      THE       SUPREME       COURT       OF       INDIA

             CRIMINAL APPELLATE JURISDICTION


             CRIMINAL APPEAL NO. 111 of 2008





MURLIDHAR SHIVRAM PATEKAR & ANR.    ……APPELLANTS

                                     VS.

STATE OF MAHARASHTRA                  ……RESPONDENT





                               J U D G M E N T



V. GOPALA GOWDA, J.



This appeal is filed by the appellants against the judgment and order  dated
20.01.2004 passed in Criminal Appeal No. 255 of 1999 by the  High  Court  of
Judicature at Bombay, Bench at Aurangabad, whereby  the  High  Court  upheld
the Trial Court’s decision of convicting the appellants  under  Section  302
of the Indian Penal Code (in short IPC) on  the  charge  of  murder  of  one
Asaram and sentencing them  to  life  imprisonment  along  with  a  fine  of
Rs.1,000/- and in default of payment of  fine,  to  undergo  further  simple
imprisonment for one year. The present appeal is  filed  by  the  appellants
praying to set aside the impugned judgment and  order  of  the  High  Court,
urging various grounds.

2. The necessary relevant facts are briefly stated hereunder:

The accused-appellant Nos. 1 and 2 are husband and  wife  respectively,  who
are the residents of Village Motigavan in Jalgaon District  in  Maharashtra.
They have been charged with the murder of one  Asaram,  as  a  result  of  a
scuffle that took place between the accused and the  deceased.  An  FIR  was
originally lodged by Madhav Gore, the complainant,  who  had  witnessed  the
incident. Initially, the crime was registered under Section  307  read  with
Section 34 of IPC. However,  after  the  death  of  Asaram,  the  crime  was
registered under Section 302 read with Section 34 of IPC.  The  Trial  Court
found both the accused guilty of the offence of murder  and  sentenced  them
to suffer life imprisonment.

3. Aggrieved by the judgment and order of the Trial  Court,  the  appellants
filed an appeal before the High Court of  Bombay,  pleading  provocation  on
the part of the deceased and lack of evidence and  prayed  for  reversal  of
the conviction and sentence. The High Court dismissed the appeal and  upheld
the verdict of the Trial Court. Hence, the present appeal.

4.     It has been contended  by  the  learned  counsel  on  behalf  of  the
appellants that on 27.08.1993 at  about  6.00  p.m.  when  it  was  raining,
Asaram entered the house of the appellants and raped appellant No.2, in  the
absence of her husband-appellant No. 1 and  children.  On  28.08.1993,  when
the accused/appellants were proceeding to report the incident at the  police
station, Asaram allegedly tried to prevent them from doing the same  and  as
a result a scuffle broke between the accused No.1 and  the  deceased-Asaram.
In the scuffle, the wife, accused/appellant No. 2 noticed  that  Asaram  had
over-powered her husband-appellant No.1, she therefore caught  hold  of  the
genitals of Asaram and tried to rescue appellant  No.1.  Thereafter,  Asaram
took out a knife from his pocket and  made  an  attempt  to  stab  appellant
No.1. It is further contended by the learned  counsel,  that  the  deceased-
Asaram during the course of the scuffle, fell on  the  knife,  thus  causing
injuries to himself. The  accused  No.1  removed  the  knife  and  proceeded
towards the police station where he produced  the  kife  before  the  P.S.I.
Andhale (P.W.8) and also lodged an F.I.R  against  the  deceased-Asaram  for
committing rape on his wife-appellant No. 2 under Section 376 of the IPC.

5. In justification of failure to lodge a complaint on the  very  same  day,
it is contended by the learned counsel on behalf of  the  accused-appellants
that it was raining  heavily  on  the  date  of  occurrence  of  the  crime;
therefore, they could not approach any villagers or the police station.

6.      On the other hand, it has been contended  by  the  prosecution  that
the accused-appellant No.2, noticing  that  the  deceased  Asaram  had  over
powered  the  accused-appellant  No.1,  caught  hold  of  his  genitals  and
facilitated accused-appellant No. 1 to give blows with knife. The  incidence
was witnessed originally by the complainant, Madhav  Gore  who  died  during
the pendency of the trial as well as Kishan Mohite (PW-2), Pandurang  (PW-3)
and Prahlad Mohite (PW-4). The deceased was taken to the hospital  at  Jalna
in a tractor. A seizure  Panchanama  was  made.  The  Head-Constable  Babula
Labhange (PW-7), while proceeding towards the said village met  the  injured
and recorded his dying declaration at about 10.45 a.m. on the same day.  The
doctor at Jalna  hospital  directed  that  the  deceased  be  taken  to  the
Government Medical College Hospital at  Aurangabad  as  he  was  in  serious
condition. The deceased was therefore, brought by the police  to  the  Ghati
Hospital at Aurangabad, where, the doctor on  examination  of  the  injured,
declared him dead.

    It is further contended by the prosecution that Madhav, the  complainant
filed his complaint which came to be registered  as  F.I.R  for  an  offence
punishable under Section 307 read with Section 34 of IPC,  which  after  the
death of the deceased Asaram was converted to Section 302 read with  Section
34 of the IPC. The blood stained clothes  of  the  deceased  were  sent  for
chemical analysis along with the weapon (knife) and  the  blood  samples  of
the accused and the deceased. The body was sent for post mortem to Dr.  Anil
Digambarrao Jinturkar (PW-5) on 28.08.1993. The accused came to be  arrested
on the very same day  and  charge-sheet  was  filed  on  completion  of  the
investigation.

7.  The Judicial Magistrate, 1ST Class committed the case  to  the  Sessions
Court at Jalna on 19.02.1994. Charges were framed against both  the  accused
under Section 302 read with  Section  34  of  the  IPC,  which  the  accused
consequently  denied  and  claimed  to  be  tried.  In  addition  to  3  eye
witnesses, panch witness-Fakir Mohite  PW-1,  was  examined  to  prove  spot
punchnama.

8. Dr. Anil Jinturkar (PW-5), in  his  disposition  has  stated  before  the
Trial Court that the injuries had been caused within 6 to  12  hours  before
the post mortem and in his cross examination,  he  specifically  denied  the
suggestion that injuries 1 and 2 were possible my means  of  fall  over  the
knife or during the scuffle. It was contended  that  this  evidence  clearly
supports  the  findings  recorded  by  the  Trial  Court  that  Asaram  died
homicidal death on account of the injuries sustained by him by  means  of  a
sharp weapon like a knife. The cause of death as  described  by  the  doctor
was hemorrhagic shock  due  to  stab  injury  over  the  chest  and  abdomen
involving liver and lung.

It  is  further  contended  by  the  prosecution  that  during   the   cross
examination of PW-3, he has stated that there was no rain during  the  night
of the incident (alleged rape). He also denied that  Asaram  had  taken  out
the knife and assaulted the accused no.1. The  evidence  of  PW-4  and  PW-5
further supported the description of the incident as narrated by PW-3.

9.     Further, as contended by the prosecution  that  the  High  Court  has
rightly held that the defence plea raised  by  the  accused  no.1  has  been
falsified by the ocular evidence of PW-2, PW-3 and  PW-4.  The  evidence  of
the three eyewitnesses is not impaired in any manner and  the  accused  no.2
had contradicted her statement made in the complaint. The  accused-appellant
No. 2 by holding the genitals of the deceased had  virtually  disarmed  him,
giving accused-appellant No. 1 the opportunity to catch hold of  his  collar
and inflict him with blows with the knife. Hence, it was a premeditated  act
to  attack  the  deceased.  The  High  Court  has  further  held  that   the
requirements in the Exception 4 of Section 300 IPC are not attracted in  the
present case as held by this Court in the case of Surinder  Kumar  v.  Union
Territory of Chandigarh[1]. The High Court  further  held  that  the  common
intention of the accused was shared and developed by  them  right  in  their
house. The possession of  the  deadly  weapon  by  accused  no.  1  and  the
injuries inflicted on the deceased that were caused on his vital parts  were
attributed to accused no.1.

10. On the basis of the aforesaid rival legal contentions, evidence  of  the
prosecution witnesses on record  and  the  reasoning  taken  by  the  courts
below, the following points would arise for consideration of this Court:

1. Whether the death of Asaram was homicidal in the light  of  the  evidence
produced by Prosecution Witnesses?

2. Whether the appellants in furtherance of their common intention, to  take
revenge of the alleged rape on accused No. 2, murdered  Asaram  and  whether
the accused are entitled to the benefit under Exception 4  of  Section  300,
IPC?

3. What order?



Answer to Point No.1:



11. The prosecution has relied on the evidence of PW-5, Dr.  Jinturkar,  who
examined and conducted the post-mortem of Asaram’s body. In  his  deposition
before the Trial Court, PW-5 stated as under:

   “External Injuries:

 An elliptical obliquely placed stab wound over the chest  and  right  side,
anteriorly in the 8th intercostals space, at midclavicular line, it  was  2”
x 0.75” x lung deep, it was directed medially  and  upwards,  torn  tags  of
under lying pleura were found to be protruding out of the wound,  there  was
oozing of dark reddish colour blood through the wound,  margins  clean  cut,
inverted, surrounding skin shows blood stains.

 An elliptical  obliquely  placed  stab  wound  over  the  chest  and  right
hypochohorium of the abdomen just about ½” below and lateral to  the  injury
No.1 and in the 9th intercostal space, it was  2”  x  0.75”  x  liver  deep,
directed medially downwards in slightly oblique  manner,  underlying  tissue
and dark reddish blood oozing out of the wound substance. Margins clean  cut
inverted, bevelling noticed at life margin  of  wound,  dried  blood  stains
seen over the skin in vicinity.

I.V. injections sites seen at cubital fosse.



INTERNAL INJURIES

 On internal examination I found congestion of meanings, brain was pale.

 The thorasix wall on the right side showed  corresponding  elliptical  stab
wound at all layers beneath injury no. 1 and no. 2  of  col.  No.17.  Pleura
shows clean cut elliptical stab below injury no. 1 and  2  as  described  in
col. No.17, with collection of 310 ml. of reddish fluid blood in  the  right
plural cavity, trachea contains reddish blood.

 Right lung shows collapsed appearance and an oblique stab  wound  of  2”  x
0.75” in size at its lower lobe, dark adherent  blood  clots  seen  at  this
site, involved tissue was friable.

 Left lung was pale in appearance, pericardium showed petechial hemorrhage.

 The Heart was contracted and right side contained  scanty  blood  and  left
side was empty.

 He further stated that the walls showed corresponding stab  injury  at  all
layers beneath injury No.2 of col. No.17. Peritoneum was  cut  obliquely  at
right hypondrium, measuring 2”  x  0.75”  in  dimension,  Peritoneal  cavity
contained about 450 ml of dark reddish blood  and  plenty  of  blood  clots.
Liver showed clean cut through stab injury of size 2” x 0.75” at  its  super
lateral aspect of right lobe of liver. The right lung was also  damaged.  He
further stated that these injuries were possible by means  of  a  knife  and
they were sufficient in ordinary course of nature to cause death.

He has further stated that these injuries would have been  caused  within  6
to 12 hours before the post mortem. According to him the cause of death  was
heamorrhagic shock due to stab  injuries  on  chest  and  abdomen  involving
liver and right lung and accordingly he issued post-mortem notes at  Exh.32.
he also issued provisional death certificate at Exh.33.

Further, PW-5 has categorically denied the suggestions that injuries  1  and
2 were possible by means of fall over  the  knife  or  in  scuffle  or  self
inflicted.”



In Black’s Law Dictionary, Abridged 6th Edition, 1991 at  page  819,  it  is
stated that:

“Preponderance of evidence is evidence which is of greater  weight  or  more
convincing than the evidence which is offered  in  opposition  to  it;  i.e.
evidence which as a whole shows that the fact sought to be  proved  is  more
probable than not.”



Thus, it is stated that the medical  evidence  acts  as  a  check  upon  the
testimony of eye witnesses and also as independent evidence in so far as  it
establishes  facts,  example,  nature  and  grievousness  of  the   injuries
suffered by the deceased. Therefore, the above mentioned  findings  of  PW-5
clearly supports the findings recorded by the Trial Court that the death  of
Asaram was homicidal on account of the injuries sustained by  him  by  means
of a sharp weapon like knife on 28.08.1993.



Answer to Point Nos.2 & 3 :



12. Now we have to examine whether the appellant  in  furtherance  of  their
common intention, to take revenge of the alleged  rape  on  accused  No.  2,
murdered Asaram.  For  this  purpose  the  prosecution  has  relied  on  the
following evidence:

Direct evidence of PW-2 Kisan, PW-3 Pandurang and PW-4 prahlad.

Dying declaration of the deceased Asaram at Exb.40

Evidence of Accused No.2 and circumstantial evidence on record.



Black’s Law Dictionary, Abridged 6th  Edition,  1991  at  page  819  further
states that:

“A person, who deposes before the Court a fact which he states he saw,  must
either speak truly or must have invented the story. Test  of  Proof  is  the
test of probabilities upon which a prudent man may base his opinion.”



Adverting to the  ocular  evidence  of  PW-2,  who  along  with  complainant
Madhavrao was sitting in front of their drawing room,  heard  the  shout  of
deceased Asaram and rushed to the said place of  incidence  and  found  that
the accused no.2 had caught hold of  the  genitals  of  the  deceased  while
accused no. 1 had caught hold of the collar of the  deceased.  PW-2  further
disclosed that the accused no.1 had a knife in his hand and he  inflicted  2
knife blows into the chest and stomach of Asaram, who  fell  on  the  ground
and the accused no. 1 and 2, went away.

    The testimony of PW-2 is fully corroborated with the testimonies of  PW-
3, which was further corroborated by the testimony of  PW-4,  who  had  also
stated the same version as deposed by PW-2 and PW-3.

13. Thus, the evidence on record led  by  the  prosecution  eyewitnesses  is
sufficient to show that the accused nos.  1  and  2  are  the  persons,  who
caused injuries on the vital parts of the body of the deceased.

14.  After hearing the learned counsel for both the  parties  and  carefully
examining the ocular evidence on record, we  would  like  to  bring  certain
relevant  facts  into  light  that  were  deposed  by  the  above  mentioned
witnesses in their testimony and cross examination,  which  the  High  Court
and the Trial Court have failed to notice the same.

     The fact that all the above witnesses saw the incidence of  scuffle  is
not disputed; however they entered the  scene  only  after  they  heard  the
shout of Asaram. What transpired prior to that, between the accused and  the
deceased has not been corroborated by anyone save the accused  no.  2.  None
of the witnesses seem to know the cause of  the  scuffle  and  neither  were
they able to hear the altercation that was going on between them.

     Further, all the  witnesses  saw  accused  no.1  inflicting  injury  to
deceased-Asaram by way of a knife that was  later  produced  as  the  murder
weapon. However, none of the witnesses have stated anywhere that  the  knife
belonged to the  accused  no.  1,  therefore,  the  question  that  who  had
actually possessed the knife first is still unknown.

15. Further, the evidence of PW-4 cannot be completely relied upon. This  is
because of the fact that in his cross  examination  he  has  clearly  stated
that the incident was already over by the time he  reached  the  said  place
where the scuffle had taken place.  The  facts  and  circumstances  must  be
reasonable and proximate and not conjectural and remote and the  prosecution
has failed to satisfy this Court beyond any reasonable doubt the reason  and
intent of the accused that resulted in the death of Asaram.

16. Now, we move on to the aspect of dying declaration. The evidence of  the
deceased at Exb.39 which was reduced to writing by PW-8 at Exb.40,  who  has
recorded the statement of Asaram at 10.45 a.m.,  stated  that  on  enquiring
about the assault, Asaram had stated that the accused  assaulted  him  under
the pretext that he had entered their house. Asaram had further stated  that
the accused assaulted him in the  morning  at  about  8  a.m.  There  is  no
infirmity in recording the statement of the said  dying  declaration  as  it
was recorded on the way when the injured  was  being  taken  to  the  police
station and from there to the hospital.

17.  Now we come to the evidence of accused  no.  2,  the  wife,  which  was
outrightly disregarded by the High Court as well as the Trial Court. In  her
deposition, she has clearly stated that the deceased Asaram had entered  her
house and had pressed her neck and put a knife over her chest rendering  her
defenceless and making it impossible for her to raise her voice and  thereby
he committed rape. She further stated that the incident took place when  her
husband and children were not at home. She has also  stated  that  when  her
husband reached home after a while she disclosed the  incident  of  rape  to
him. However, they could not approach the police station or the Sarpanch  on
the very same night as it was  raining  but  proceeded  towards  the  police
station the next morning at 8.00 a.m. She further stated  that  Asaram,  who
was sitting with the other prosecution witnesses, rushed  towards  them  and
prevented them  from  proceeding  further.  Thereby,  the  deceased  started
assaulting the accused. She has further stated that the  deceased  had  over
powered her husband and none of the  prosecution  witnesses  came  to  their
rescue. Then she caught hold of the testicles of  Asaram  and   her  husband
snatched the knife from the hand of the deceased who had pierced himself  in
the  stomach  during  the  scuffle  with  the  knife.  Her  husband  thereby
proceeded towards the police station  and  narrated  the  incidence  of  the
scuffle and lodged a complaint of rape against the deceased.

18.  Further, on the question of not raising the voice by  the  accused  no.
2, in our opinion, it  is  understandable  under  this  situation  that  the
accused no.2 could have been in a state of shock and scared and hence  would
not have been in a position to reveal the incident of the  rape  to  anyone.
Thus, the contention made by the prosecution that the delay in  lodging  the
complaint or revealing the same to the  Sarpanch  was  premeditated  on  the
part of the accused cannot be accepted by us on the fact  and  circumstances
of the case. Even for the sake of argument, if we consider  that  the  delay
in lodging the complaint  was  a  premeditated  plan  on  the  part  of  the
accused, then the accused would not have delayed  confronting  the  deceased
until 8.00 a.m. the next morning. Premeditation calls for construction of  a
plan to execute a certain act. If the accused  had  planned  on  confronting
and eventually committing the act of murder against the deceased, then  they
would not have  executed  the  same  in  their  own  neighbourhood,  in  the
presence of a number of witnesses. Hence, we are of the opinion  that  there
was no premeditation on the part of the accused and the scuffle  took  place
due to sudden provocation on the part  of  the  deceased.  This  is  further
corroborated by the fact that the  accused  themselves  reached  the  police
station and lodged a complaint against the deceased  and  confessed  to  the
scuffle, thereby submitting the knife (the  murder  weapon)  at  the  police
station.

19. The question however still remains as  to  the  nature  of  the  offence
committed by the accused and whether it falls under Exception 4  of  Section
300, IPC.

   In the case of Surinder Kumar  (supra), this Court has held as under:-

“7. To invoke this Exception four requirements must  be  satisfied,  namely,
(i) it was a sudden fight; (ii) there was no premeditation;  (iii)  the  act
was done in a heat of passion; and  (iv)The  assailant  had  not  taken  any
undue advantage or acted in a cruel manner. The cause of the quarrel is  not
relevant nor is it relevant who  offered  the  provocation  or  started  the
assault. The number  of  wounds  caused  during  the  occurrence  is  not  a
decisive factor but what is important is that the occurrence must have  been
sudden and unpremeditated and the offender must  have  acted  in  a  fit  of
anger. Of course, the offender must not have taken any  undue  advantage  or
acted in a cruel manner. Where, on a sudden quarrel, a person  in  the  heat
of the moment picks up a weapon which is handy and causes injuries,  one  of
which proves fatal, he would be entitled to the benefit  of  this  Exception
provided he has not acted cruelly.”

                                                         (emphasis supplied)

Further in the case of Arumugam v. State,[2] in support of  the  proposition
of law that under what circumstances Exception 4 to Section 300, IPC can  be
invoked if death is caused, it has been explained as under:-

“18. The help of Exception 4 can be invoked if death is caused  (a)  without
premeditation; (b) in a sudden fight;  (c)  without  the  offender’s  having
taken undue advantage or acted in a cruel or unusual  manner;  and  (d)  the
fight must have been  with  the  person  killed.  To  bring  a  case  within
Exception 4 all the ingredients mentioned in it must be found. It is  to  be
noted that the ‘fight’ occurring in Exception 4 to Section 300  IPC  is  not
defined in the Penal Code, 1860. It takes two  to  make  a  fight.  Heat  of
passion requires that there must be no time for the passions  to  cool  down
and in this case, the parties had worked themselves into a fury  on  account
of the verbal altercation in the beginning. A fight is a combat between  two
and more persons whether with or without weapons.  It  is  not  possible  to
enunciate any general rule as to  what  shall  be  deemed  to  be  a  sudden
quarrel. It is a question of fact and whether a quarrel  is  sudden  or  not
must necessarily depend  upon  the  proved  facts  of  each  case.  For  the
application of Exception 4, it is not sufficient to show that  there  was  a
sudden quarrel and there was no premeditation.  It  must  further  be  shown
that the offender has not  taken  undue  advantage  or  acted  in  cruel  or
unusual manner. The expression ‘undue advantage’ as used  in  the  provision
means ‘unfair advantage’.”



Further in the case of Satish Narayan Sawant v. State of Goa,[3] this  Court
has held as under:

“   24. …….Section 300 IPC further provides for the  Exceptions  which  will
constitute culpable homicide not amounting to murder  and  punishable  under
Section 304. When and if there is intent and knowledge then the  same  would
be a case of Section 304 Part I and if it is only a case  of  knowledge  and
not the intention to cause murder and bodily injury, then the same would  be
a case of Section 304 Part II.

28. ………Records clearly establish that there was  indeed  a  scuffle  between
the parties with regard to the availability of electricity in  a  particular
room and during the course of scuffle the appellant also received an  injury
which was simple in nature and that there was heated exchange of  words  and
scuffle between the parties before the  actual  incident  of  stabbing  took
place. There is, therefore, provocation and the  incident  happened  at  the
spur of the  moment.  That  being  the  factual  position,  we  are  of  the
considered view that the present case cannot be said  to  be  a  case  under
Section 302 IPC but it is a case falling under Section304 Part  II  IPC.  It
is trite law that Section 304 Part II comes into  play  when  the  death  is
caused by doing an act with knowledge that it is likely to cause  death  but
there is no intention on the part of the accused either to  cause  death  or
to cause such bodily injury as is likely to cause death.”



Thus, if there is intent and knowledge then the same  would  be  a  case  of
Section 304 Part I and if it is only a case of knowledge and  not  intention
to cause murder and bodily injury then the same  would  fall  under  Section
304  Part  II.  We  are  inclined  to  the  view  that  in  the  facts   and
circumstances  of  the  present  case,  it   cannot   be   said   that   the
appellants/accused had any intention of causing the death  of  the  deceased
when they committed the act in question.  The incident  took  place  out  of
grave and sudden provocation and hence  the  accused  are  entitled  to  the
benefit of Section 300 Exception 4 of IPC.

Thus, in entirety, considering the factual scenario of  the  case  on  hand,
the legal evidence on record and in the background of legal principles  laid
down  by  this  Court  in  the  cases  referred  to  supra,  the  inevitable
conclusion is that the act of the accused-appellants was  not  a  cruel  act
and the accused did not take undue advantage of the  deceased.  The  scuffle
took place in the heat of passion and all  the  requirements  under  Section
300 Exception  4,  IPC  have  been  satisfied.  Therefore,  the  benefit  of
Exception 4 under Section 300, IPC is attracted to the fact  situations  and
both the appellants are equally entitled to this benefit.

20.   Thus, considering the factual background and the  legal  position  set
out above, the inevitable conclusion is that the appropriate  conviction  of
the appellants would be under Section 304 Part II  IPC  instead  of  Section
302 IPC. Hence, the sentence of imprisonment for 10  years  would  meet  the
ends of justice.



21.   The appeal is disposed of in the above said terms.



                                                ……………………………………………………………………J.
                     [DIPAK MISRA]





                                                ……………………………………………………………………J.
                [V.GOPALA GOWDA]



New Delhi,                                         September 25, 2014

-----------------------
[1]

      [2] (1989) 2 SCC 217

[3]

          [4]      (2008)     15     SCC     590,      at      page      595








                                                      ?

Service matter - appointment of private teachers - DEO refused to approve - challanged - High court allowed the writs - Apex court held that since the appointments are made against the procedure , the order of High court is liable to be set aside - further held that The Management had required the private respondents to discharge their duties, without the prior approval of the State Government. The Management should therefore bear the responsibility of shouldering the emoluments payable to the private respondents. We therefore, hereby direct the Management of the Doaba Arya Senior Secondary School, Nawanshahr to pay all emoluments (if the same are still unpaid) to the private respondents, within two months from the date of receipt of a copy of this order.= CIVIL APPEAL NOS.7983-7986 OF 2009 State of Punjab and others ..Appellants versus Anita and others ..Respondents = 2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=42029

   Service matter - appointment of private teachers - DEO refused to approve  - challanged - High court allowed the writs - Apex court held that since the appointments are made against the procedure , the order of High court is liable to be set aside - further held that The Management had  required  the  private respondents to discharge their duties, without the  prior  approval  of  the State Government. The Management should therefore  bear  the  responsibility of shouldering  the  emoluments  payable  to  the  private  respondents.  We therefore, hereby direct the  Management of the Doaba Arya Senior  Secondary School, Nawanshahr to pay all emoluments (if the same are still  unpaid)  to the private respondents, within two months from the date  of  receipt  of  a  copy of this order.=

 Wanted following  dedicated,  talented,  trained  and  experienced  teachers
against six vacant JBT/ETT aided posts  preferably  one  M.A.  English,  one
M.Sc. Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A.  Eco  and  one
Watchman. Apply Principal afresh within  ten  days  alongwith  testimonials.
Reservation exists as per Govt. rules.
                                                                        Sd/-
                                                   Principal, Doaba Arya Sr. Sec. School,
                                                                           Nawanshahr. =
The  private  respondents  were  selected   against   the   six
advertised posts, by the Managing Committee of the  above  school.   Despite
their selection and consequential appointment, the State Government did  not accord its approval.=

It is therefore, that the District Education  Officer,
Nawanshahr (hereinafter referred to as the  'DEO')  passed  an  order  dated
04.4.2005, declining the claim of the private  respondents.   A  perusal  of
the speaking order passed by the DEO, inter alia, reveals, that the  private
respondents  had  been  appointed  in  violation  of  the  statutory   rules
regulating appointments to privately managed  recognised  schools.   It  was
also indicated in the order dated 04.4.2005, that the selection process  was
not  in consonance with  the statutory rules.
            The order passed by the DEO dated 04.4.2005 was assailed by  the
private respondents  before the High Court by  filing  Civil  Writ  Petition
No. 15599 of 2006.=
 we are of  the  view,
that the private respondents do  not  satisfy  the  pre-condition  of  valid
appointment expressed therein,  inasmuch  as,  it  was  imperative  for  the
Selection  Committee,  in  the  first  instance,  to  consider  only   those
candidates who possessed the qualification of JBT/ETT, and thereupon,  posts
that remained unfilled could be filled up  with  persons  possessing  higher
qualifications,  i.e.,  graduate/post  graduate  qualifications  along  with
B.Ed..  That was not the procedure which came to be adopted in  the  present
controversy.  Therefore  per  se,  no  benefit  can  flow  to  the   private
respondents, from the government instructions relied  upon  by  the  learned
counsel. Be that as it may, it needs to be emphasised, that para  6  of  the
Government Instructions dated 20.12.1995, are  in  clear  violation  of  the
statutory process of selection and appointment  postulated  under  the  1981
Rules.  Even if  the  above  Government  Instructions  would  have  bestowed
validity on the selection process, through  which  the  private  respondents
came to be appointed, the  same  could  not  have  been  acceded  to,  since
Government Instructions in violation of the statutory rules, are  a  nullity
in law. In view of the foregoing reasons, it  is  not  possible  for  us  to
bestow legitimacy/legality to the appointment of the respondents as  JBT/ETT
teachers.
            For the reasons recorded hereinabove, we are satisfied that  the
impugned order passed by the High Court dated 2.7.2007 is liable to  be  set
aside.  The same is accordingly hereby set aside.
            We were informed,  that  the  private  respondents  came  to  be
appointed by the Management of  the  Doaba  Arya  Senior  Secondary  School,
Nawanshahr, in the year 2002.  We  were  also  informed,  that  the  private
respondents have continued to be in the employment of the Doaba Arya  Senior
Secondary School, Nawanshahr, till date.  No fault whatsoever lies with  the
private respondents.  The fault, if at all, lies  with  the   Management  of
the Doaba Arya  Senior  Secondary  School,  Nawanshahr.  Unfortunately,  the
Management of the Doaba Arya Senior Secondary School, Nawanshahr, issued  an advertisement in violation of the 1981 Rules.   The  procedure  depicted  in
the 1981 Rules was also not followed while making appointments, to  the  six
vacant posts of JBT/ETT teachers. The Management had  required  the  private
respondents to discharge their duties, without the  prior  approval  of  the
State Government. The Management should therefore  bear  the  responsibility
of shouldering  the  emoluments  payable  to  the  private  respondents.  We
therefore, hereby direct the  Management of the Doaba Arya Senior  Secondary
School, Nawanshahr to pay all emoluments (if the same are still  unpaid)  to
the private respondents, within two months from the date  of  receipt  of  a
certified copy of this order.
            The instant civil appeals are accordingly allowed in  the  above
terms.
        2014 - Sept.Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=42029            
                              REPORTABLE
                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NOS.7983-7986 OF 2009


State of Punjab and others                        ..Appellants

                       versus

Anita and others                                  ..Respondents
                                  WITH

                 CIVIL APPEAL NOS.7970-7971 OF 2009


                            J U D G M E N T


J.S.KHEHAR, J.


            The Management  of  the  Doaba  Arya  Senior  Secondary  School,
Nawanshahr, issued an advertisement in the Indian Express dated  25.05.2002,
inviting applications for six vacant posts of JBT/ETT teachers.   Since  the
controversy, being adjudicated upon, is substantially to  be  determined  on
the basis of the contents of  the  advertisement,  the  above  advertisement
dated 25.05.2002 is being extracted hereunder:
“Doaba Arya Senior Secondary School, Nawanshahr

Wanted following  dedicated,  talented,  trained  and  experienced  teachers
against six vacant JBT/ETT aided posts  preferably  one  M.A.  English,  one
M.Sc. Chem., One M.Sc. Bio, M.Com., one M.Sc. Maths, one M.A.  Eco  and  one
Watchman. Apply Principal afresh within  ten  days  alongwith  testimonials.
Reservation exists as per Govt. rules.
                                                                        Sd/-
Principal, Doaba Arya Sr. Sec. School,
                            Nawanshahr.


             The  private  respondents  were  selected   against   the   six
advertised posts, by the Managing Committee of the  above  school.   Despite
their selection and consequential appointment, the State Government did  not accord its approval. It is in the aforesaid circumstances, that the  private
respondents, i.e., the selected  JBT/ETT  teachers   issue  a  notice  dated
1.2.2004, wherein they sought approval of the  State  Government,  as  also,
wages for the period they had been discharging their  duties.   Since,  they
did not receive any  response  to  the  legal  notice  dated  1.2.2004,  the
private respondents approached the High  Court  of  Punjab  and  Haryana  at
Chandigarh (hereinafter referred to as the 'High  Court')  by  filing  Civil
Writ Petition No.6789 of 2004.  Rather than  examining  the  merits  of  the
controversy, the High Court by its  order  dated  27.04.2004,  required  the
State Government to take a decision on  the  legal  notice,  issued  by  the
private respondents.  It is therefore, that the District Education  Officer,
Nawanshahr (hereinafter referred to as the  'DEO')  passed  an  order  dated
04.4.2005, declining the claim of the private  respondents.   A  perusal  of
the speaking order passed by the DEO, inter alia, reveals, that the  private
respondents  had  been  appointed  in  violation  of  the  statutory   rules
regulating appointments to privately managed  recognised  schools.   It  was
also indicated in the order dated 04.4.2005, that the selection process  was
not  in consonance with  the statutory rules.
            The order passed by the DEO dated 04.4.2005 was assailed by  the
private respondents  before the High Court by  filing  Civil  Writ  Petition
No. 15599 of 2006.  The same came to be allowed by the impugned order  dated
2.7.2007.  A perusal of the impugned order  reveals,  that  the  High  Court
emphatically placed reliance on an earlier  litigation  in  respect  of  the
same selection process, wherein a Division Bench of the  High  Court,  while
disposing of  civil  writ  petition  No.  13979  of  2002  (by  order  dated
16.2.2004),  had  found  the  petitioner  therein  not  possessing  superior
qualifications to the private respondent no.4, whose  selection  was  sought
to be assailed.  The High Court had also,  while  disposing  of  civil  writ
petition no.13979 of 2002, rejected the contention advanced at the hands  of
the petitioner therein, that  the  process  of  selection  was  vitiated  on
account of bias.
            Since the order passed in civil writ petition no. 13979 of  2002
was affirmed by this Court, the special leave  petition  filed  against  the
said order before this Court was dismissed. The  High  Court  inferred  from
the above dismissal, that the selection process had been  approved  by  this
Court.
            We will first endeavour to deal with the basis  adopted  by  the
High Court in affirming the selection process of  the  private  respondents,
consequent whereof they came to be appointed as JBT/ETT teachers.  It  would
be  relevant  to  mention,  that  the  qualifications  prescribed  for   the
advertised  JBT/ETT  posts  were  not  at  all   the   subject   matter   of
consideration in writ petition no. 13979 of  2002,  nor  was  the  selection
process a matter for consideration.  In the above view, it  was  not  proper
for the High Court to approve  the  selection  process,  by  which  the  six
private respondents came to be appointed  as  JBT/ETT  teachers.   Moreover,
the issues which are now raised were not examined by the High Court,  or  by
this Court, during the previous  litigation.   We  are,  therefore,  of  the
considered view, that the High  Court  should  have  addressed  the  pointed
questions raised before it,  while  examining  the  legality  of  the  order
passed by the DEO dated 04.4.2005.  Unfortunately, the High  Court  did  not
deal with any of the reasons recorded by the DEO (while rejecting the  claim
raised by the private respondents).
            We shall now deal with the pointed issues recorded  by  the  DEO
in his order dated 04.4.2005.  It is not a matter of dispute,  that  insofar
as the selection and appointments to privately  managed  recognised  schools
in the State of Punjab is concerned, the same are regulated  by  the  Punjab
Privately Managed Recognised Schools Employees (Security of Service)  Rules,
1981 (hereinafter  referred  to  as  the  '1981  Rules').   Rule  6  of  the
aforesaid Rules lays down the qualifications for different posts,  and  Rule
7 the manner/method of appointment. Rules 6 and 7  of  the  1981  Rules  are
reproduced hereunder:
“6. Qualification – (1) No person shall  be  appointed  to  an  aided  post,
unless he possess the qualifications and  experience  as  specified  against
that post in the Appendix to these rules.

(2) Unless otherwise specified in the Appendix to these rules,  an  employee
who has not  attained  the  knowledge  of  Hindi  and  Punjabi  language  of
matriculation standard or its equivalent, shall have  to  acquire  the  same
within a period of two years  from  the  date  of  his  appointment  of  the
commencement of these rules, whichever is earlier, failing  which  he  shall
not earn his first grade increments till he  acquires  such  knowledge  when
the increments shall be released retrospectively :

Provided that he shall not be entitled to get arrears of the released  grade
increments for the period during which he could not  acquire  the  aforesaid
knowledge.

7. Appointing authority and method of appointment – All appointments to  the
aided posts shall be  made  by  the  managing  committee  in  the  following
manner:

(i) Appointing authority shall advertise  in  both  English  and  vernacular
daily newspapers in the State, vacancy or  vacancies  to  be  filled  in  by
giving full particulars  thereof  including  the  requisite  qualifications,
number of vacancies to  be  filled  in  and  the  last  date  by  which  the
applications may be submitted;

(ii) The recommendations for appointment of the candidates shall be made  by
a sub-committee consisting five members of the managing committee.

(2) The members of the sub-committee shall  be  appointed  by  the  managing
committee.”


A perusal of Rule  6  reveals,  that  qualifications  for  posts  under  the
purview of the 1981 Rules have been expressed in the appendix  to  the  1981
Rules. Insofar as the post of JBT teacher is concerned, the same figures  at
serial no.10 of the appendix, wherein the prescribed qualifications  are  as
under:
                                  APPENDIX
                                (See Rule 6)

|Serial  |Designation of Post         |Qualifications and experiences       |
|No.     |                            |                                     |
|1       |2                           |3                                    |
|10.     |J.B.T. Teacher              |(i) Martic with two years course in  |
|        |                            |J.B.T. Training; and                 |
|        |                            |                                     |
|        |                            |(ii) Knowledge of Punjabi and Hindi  |
|        |                            |Language of Matriculation Standard or|
|        |                            |its equivalent.                      |


Under the  1981  Rules,  for  the  post  of  JBT  teachers,  the  prescribed
qualification is, matriculation with two years course in JBT  training.   In
addition thereto, a candidate should have knowledge  of  Punjabi  and  Hindi
language of matriculation standard, or its equivalent.
            The issue which  requires  our  consideration  is,  whether  the
advertisement issued by the Doaba Arya Senior Secondary School,  Nawanshahr,
had invited applications by truly reflecting the prescribed  qualifications,
and  also  whether,  the  private  respondents  possess  the   qualification
prescribed for the  post  of  JBT/ETT  teachers,  which  was  advertised  on
25.2.2002.
            While examining the  advertisement,  which  has  been  extracted
hereinabove, we are  satisfied  that  applications  were  not  invited  from
candidates possessing the qualification depicted  in  the  appendix  to  the
1981 Rules, pertaining to  the  posts  of  JBT/ETT  teachers.   It  is  also
apparent, that none of the private respondents possess the qualification  of
JBT/ETT, and as such, none  of  them  can  be  stated  to  be  possessed  of
qualifications statutorily prescribed and delineated in the appendix of  the
1981 Rules.  None of the private respondents was therefore per  se  eligible
for appointment to the posts of JBT/ETT  teachers.   This  was  one  of  the
pointed reasons why the State Government did not grant its approval  to  the
selection and appointment of the  private  respondents.  In  our  considered
view, no infirmity can be found in the aforesaid determination at the  hands
of the State Government.
            Insofar as the issue in hand  is  concerned,  reference  may  be
made to the decision rendered by this Court in P.M. Latha  and  another  vs.
State of Kerala and others (2003) 3 SCC 541,  wherein  this  Court  held  as
under:
We find absolutely no force in the  argument  advances  by  the  respondents
that BEd qualification is a higher qualification than TTC and therefore  the
BEd candidates should be held to be eligible to compete  for  the  post.  On
behalf of  the  appellants,  it  is  pointed  out  before  us  that  Trained
Teacher's Certificate is given to teachers specially trained to teach  small
children in primary classes whereas for BEd degree,  the  training  imparted
is  to  teach  students  of  classes  above   primary.  BEd  degree-holders,
therefore, cannot necessarily be held to be holding  qualification  suitable
for appointment as teachers in primary schools.  Whether  for  a  particular
post, the source of recruitment should  be  from  the  candidates  with  TTC
qualification or BEd qualification, is a matter of  recruitment  policy.  We
find  sufficient  logic  and  justification   in   the   State   prescribing
qualification for the post of primary teachers as  only  TTC  and  not  BEd.
Whether BEd qualification can also be prescribed for primary teachers  is  a
question to be  considered  by  the  authorities  concerned  but  we  cannot
consider  BEd  candidates,  for  the  present   vacancies   advertised,   as
eligible.”

                                             (emphasis is ours)

Reference may also be made to the decision rendered by this Court in  Yogesh
Kumar and others vs. Government of NCT of Delhi  and  others  (2003)  3  SCC
548, wherein this Court held as under:
“The Division Bench of the Delhi High Court in  the  impugned  judgment  has
dealt with the above two  arguments  in  great  detail.  In  our  considered
opinion, it has rightly come  to  the  conclusion  that  BEd  qualification,
although a well-recognised  qualification  in  the  field  of  teaching  and
education being not prescribed in the advertisement, only some  of  the  BEd
candidates who took a chance to apply for the post cannot be given entry  in
the field of selection. We also find that the High  Court  rightly  came  to
the conclusion that teacher training imparted to  teachers  for  BEd  course
equips them for teaching higher classes. A  specialized  training  given  to
teachers for teaching small children at primary  level  cannot  be  compared
with  training  given  for  awarding  BEd  degree.  Merely  because  primary
teachers can also earn promotion to the post of  teachers  to  teach  higher
classes and for which BEd is the  prescribed  qualification,  it  cannot  be
held that BEd is a higher qualification than TTC. Looking to  the  different
nature of TTC qualification, the High Court rightly  held  that  it  is  not
comparable with BEd degree qualification and the latter  cannot  be  treated
as higher qualification to the former.”

                                       (emphasis is ours)

A perusal of the aforesaid judgments leave no room for any  doubt,  that  it
is  imperative  for  candidates  to  possess  the  statutory   qualification
prescribed  for  appointment  to  the  posts,  to  which  they  are  seeking
appointment.    In  view  of  the   position   declared   by   this   Court,
qualifications of B.Ed and other qualifications  possessed  by  the  private
respondents, namely, M.A., M.Sc, M.Com. Etc. cannot  be  treated  as  higher
qualifications with reference  to  the  prescribed  qualifications(JBT/ETT).
We, therefore, find the reasons recorded by the DEO in  the  impugned  order
dated 04.4.2005 were fully justified,  and  in  consonance  with  the  legal
position declared by this Court, as has been noticed hereinabove.
            To be fair to the learned counsel for the  private  respondents,
we may also make a reference to the  decision  rendered  by  this  Court  in
Jyoti K.K. and others  vs.  Kerala  Public  Service  Commission  and  others
(2010) 15 SCC 596.  Learned counsel had invited our attention  to  paragraph
7 thereof, wherein it was observed as under:
“It is no doubt true, as stated by the High Court that when a  qualification
has been set out under the relevant Rules, the same cannot be in any  manner
whittled down and a different qualification  cannot  be  adopted.  The  High
Court is also justified  in  stating  that  the  higher  qualification  must
clearly indicate or presuppose the acquisition of the  lower  qualifications
prescribed for the post shall also be sufficient for the post. If  a  person
has acquired higher qualifications in the same Faculty, such  qualifications
can  certainly  be  stated  to  presuppose  the  acquisition  of  the  lower
qualifications prescribed for the post. In the case it may not be  necessary
to seek far.”

                                       (emphasis is ours)

It is no doubt true, that this Court  held  in  the  afore-stated  judgment,
that if a person had acquired higher qualifications  in  the  same  faculty,
such qualifications can certainly  be stated to presuppose  the  acquisition
of the  lower  qualification.   Possession  of  higher  qualification  would
therefore, according to learned counsel, make a candidate eligible  for  the
post,  even  though,  the  candidate  does  not   possess   the   prescribed
qualification. The question however is, whether the above  position  can  be
applied to the present case?
            It was sought to be asserted  on  the  basis  of  the  aforesaid
observations,  that   since   the   private   respondents   possess   higher
qualifications, then the qualification of JBT/ETT, they  should  be  treated
as having fulfilled the qualification stipulated for the  posts  of  JBT/ETT
teachers.  It is not possible for us to accept the aforesaid  submission  of
the learned counsel for  the  private  respondents,  because  the  statutory
rules which were taken into consideration by this Court while recording  the
aforesaid  observations  in  Jyoti  K.K.'s  case  (supra),   permitted   the
aforesaid course.  The statutory rule,  in the decision  relied  on  by  the
learned counsel for the private respondents, is extracted hereunder:
6. Rule 10(a)(ii) reads as follows :

“10.(a)(ii) Notwithstanding anything contained in  these  Rules  or  in  the
Special  Rules,  the  qualifications  recognised  by  executive  orders   or
standing orders of Government as equivalent  to  a  qualification  specified
for a post in the Special Rules and  such  of  those  higher  qualifications
which presuppose the acquisition of the lower qualification  prescribed  for
the post shall also be sufficient for the post.”
                                                          (emphasis is ours)

A perusal of the  rule  clearly  reveals,  that  the  possession  of  higher
qualification would presuppose the acquisition of  the  lower  qualification
prescribed for the posts.  Insofar as the present controversy is  concerned,
there is no similar  statutory  provision  authorizing  the  appointment  of
persons with higher qualifications.   Moreover,  in  view  of  the  decision
rendered by this Court in P.M. Latha's case (supra) and  in  Yogesh  Kumar's
case (supra) lead to the clear an unambiguous conclusion that  none  of  the
private respondents  could  be  considered  as  eligible  for  selection  or
appointment to the advertised posts of JBT/ETT teachers.
             It  is  also  necessary  for  us  to  take  into  consideration
Government Instructions dated 20.12.1995, which were relied upon by  learned
counsel, so as to contend, that the private respondents who  possess  higher
qualifications including the qualifications depicted as preferential in  the
advertisement,  should be treated as  eligible.   Relevant  extract  of  the
aforesaid Government  Instructions  dated  20.12.1995  is  being  reproduced
hereunder:
“6.   Vide letter No.1/18/95-3Edu-7/20602, dated 14.09.1995  the  Government
has taken the decision that in future the appointment of J.B.T. Teachers  in
the Government Schools  may  be  done  in  two  parts.  In  first  part  the
candidates  who  are  possessing  the  qualification  of  J.B.T./E.T.T.   or
equivalent shall  be  considered.  Thereafter,  in  case  it  emerges  that,
J.B.T./E.T.T.  qualified  candidates  are  not  available,  in  that  event,
appointments may be made by adopting second part. It should be mentioned  in
the  advertisement,  that  in  case  candidates   with    J.B.T./E.T.T.   or
equivalent  qualification  are  not  available,  then  candidates  who  have
graduation/post  graduation  qualifications  with   B.Ed.   will   also   be
considered. But  the  candidates  having  qualification  of  graduation/post
graduation/ along with B.Ed. shall be paid the  scale  of  J.B.T.  only.  In
such cases, an affidavit will be furnished  by  the  candidates  that  after
selection, being graduates/post graduates candidates,  will  not  claim  any
other benefit or higher scale, and in this regard, at the  time  of  sending
the  requisition  of  posts,  this  shall  also  be  incorporated   in   the
advertisement.”


            Having given our thoughtful  consideration  to  the  submissions
advanced at the hands of the learned counsel for  the  private  respondents,
based on the government instructions dated 20.12.1995, we are of  the  view,
that the private respondents do  not  satisfy  the  pre-condition  of  valid
appointment expressed therein,  inasmuch  as,  it  was  imperative  for  the
Selection  Committee,  in  the  first  instance,  to  consider  only   those
candidates who possessed the qualification of JBT/ETT, and thereupon,  posts
that remained unfilled could be filled up  with  persons  possessing  higher
qualifications,  i.e.,  graduate/post  graduate  qualifications  along  with
B.Ed..  That was not the procedure which came to be adopted in  the  present
controversy.  Therefore  per  se,  no  benefit  can  flow  to  the   private
respondents, from the government instructions relied  upon  by  the  learned
counsel. Be that as it may, it needs to be emphasised, that para  6  of  the
Government Instructions dated 20.12.1995, are  in  clear  violation  of  the
statutory process of selection and appointment  postulated  under  the  1981
Rules.  Even if  the  above  Government  Instructions  would  have  bestowed
validity on the selection process, through  which  the  private  respondents
came to be appointed, the  same  could  not  have  been  acceded  to,  since
Government Instructions in violation of the statutory rules, are  a  nullity
in law. In view of the foregoing reasons, it  is  not  possible  for  us  to
bestow legitimacy/legality to the appointment of the respondents as  JBT/ETT
teachers.
            For the reasons recorded hereinabove, we are satisfied that  the
impugned order passed by the High Court dated 2.7.2007 is liable to  be  set
aside.  The same is accordingly hereby set aside.
            We were informed,  that  the  private  respondents  came  to  be
appointed by the Management of  the  Doaba  Arya  Senior  Secondary  School,
Nawanshahr, in the year 2002.  We  were  also  informed,  that  the  private
respondents have continued to be in the employment of the Doaba Arya  Senior
Secondary School, Nawanshahr, till date.  No fault whatsoever lies with  the
private respondents.  The fault, if at all, lies  with  the   Management  of
the Doaba Arya  Senior  Secondary  School,  Nawanshahr.  Unfortunately,  the
Management of the Doaba Arya Senior Secondary School, Nawanshahr, issued  an
advertisement in violation of the 1981 Rules.   The  procedure  depicted  in
the 1981 Rules was also not followed while making appointments, to  the  six
vacant posts of JBT/ETT teachers. The Management had  required  the  private
respondents to discharge their duties, without the  prior  approval  of  the
State Government. The Management should therefore  bear  the  responsibility
of shouldering  the  emoluments  payable  to  the  private  respondents.  We
therefore, hereby direct the  Management of the Doaba Arya Senior  Secondary
School, Nawanshahr to pay all emoluments (if the same are still  unpaid)  to
the private respondents, within two months from the date  of  receipt  of  a
certified copy of this order.
            The instant civil appeals are accordingly allowed in  the  above
terms.       As  a  sequel  to  the   above,   all   pending   interlocutory
applications are disposed of.

            Civil Appeal Nos. 7970-7971 of 2009
            It is not a matter  of  dispute  that  the  controversy  in  the
present civil appeals is identical to the one adjudicated upon by us in  the
case of State of Punjab and  others  vs.  Anita  and  others  (Civil  Appeal
Nos.7983-7986 of 2009) decided on 24.09.2014.
            In view of  the  above,  the  instant  civil  appeals  are  also
allowed in the same terms.

                                       …..........................J.
                                       [JAGDISH SINGH KHEHAR]


NEW DELHI;                        …..........................J.
SEPTEMBER 24, 2014.                    [ARUN MISHRA]




ITEM NO.104               COURT NO.7               SECTION IV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  7983-7986/2009

STATE OF PUNJAB & ORS.                             Appellant(s)

                                VERSUS
ANITA AND ORS                                      Respondent(s)
(with appln(s) for exemption from filing OT and application for  transposing
and impleadment of non-official appellants as respondents)
WITH
C.A. No. 7970-7971/2009
(With Office Report)

Date : 24/09/2014 These appeals were called on for hearing
        today.

CORAM :
         HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
         HON'BLE MR. JUSTICE ARUN MISHRA


For Appellant(s)       Mr. Sanchar Anand, AAG
                       Mr. Piyush Hands, Adv.
                    for Mr. Kuldip Singh,AOR(NP)
                       for Mr. Ajay Pal,AOR(NP)

For Respondent(s)      Mr. A.V. Palli, Adv.
                       Mr. Anupanm Raina, Adv.
                    for Mrs. Rekha Palli,AOR(NP)

                    Ms. S. Janani,Adv.
                       Mr. Deepak Goel, Adv.

          UPON hearing the counsel the Court made the following
                             O R D E R

            The appeals are allowed in terms of the Reportable Signed
Judgment, which is placed on the file.

            All pending interlocutory applications are disposed of.


(Parveen Kr. Chawla)                         (Phoolan Wati Arora)
    Court Master                                   Assistant Registrar