Sec.9 A of C.P.C.( Maharashtra Amendment ) - an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. - No need to frame an Issue under Or.XIV, Rule 2 of C.P.C as it is specifically framed for quick disposal at interim stage itself - 2015 SC msk lawreports

"9-A. Where at the hearing of application relating to interim  relief  in  a
suit, objection to jurisdiction is taken, such issue to be  decided  by  the
Court as a preliminary issue.- 
(1)  Notwithstanding  anything  contained  in
this Code or any other law for the time being in force, if, at  the  hearing
of any application for granting or  setting  aside  an  order  granting  any
interim relief, whether  by  way  of  stay,  injunction,  appointment  of  a
receiver or otherwise, made in any suit, an objection  to  the  jurisdiction
of the Court to entertain such a suit is taken by any of the parties to  the
suit,  the  Court  shall  proceed  to  determine  at  the  hearing  of  such
application the issue as to the jurisdiction as a preliminary  issue  before
granting or setting aside the order granting the interim  relief.  Any  such
application shall be heard and disposed of by the Court as expeditiously  as
possible and shall not in any case he adjourned to the hearing of the suit.


(2) Notwithstanding anything contained in Sub-section (1),  at  the  hearing
of any such application, the Court may grant such interim relief as  it  may
consider necessary, pending determination by it of the preliminary issue  as
to be jurisdiction."

The
Appellant is a co-operative housing society consisting of owners of  various
flats in the building 'Advent'  which  exists  on  the  suit  property.  The
Appellant filed Suit No.2939/1999 for declaring that Respondent Nos.1-6  and
8 have no rights whatsoever over the suit property and that  they  were  not
entitled to carry out  construction  of  the  building  by  name  of  'Divya
Prabha' within the suit property and for permanently restraining  them  from
doing so. The Appellant also prayed for declaring the  revalidation  of  the
I.O.D.  (Intimation  of  Disapproval)  and   commencement   certificate   by
Respondent No. 7 - Municipal Corporation in 1998, 2004 and  2005  in  favour
of Respondent Nos. 1-6 and 8 to carry out construction of  the  building  by
name of 'Divya Prabha' in the suit property to be illegal.

the  defendant-respondents  had  raised
objection to the maintainability of the suit itself as also on the  question
whether the suit is filed within the period of limitation.

After hearing learned counsel on either side, the Division Bench  held
that the moment the issue of jurisdiction was raised  under  Section  9A  of
Code of Civil Procedure, such issue had to be decided first as the same  was
mandated under Section 9A and as valuable time could be saved in case it  is
found that the court does not have  jurisdiction. 
The  term  "jurisdiction"
under Section 9A was held to have been used in a wider sense and subject  to
any statutory bar on the maintainability of a suit. The Division Bench  held
that the court was bound to dismiss a suit barred by limitation  as  it  had
no jurisdiction to entertain the same.
 The plea of limitation  was  held  to
be a question of law which related to the jurisdiction of the court and  the
court was held to be precluded from adjudicating the matter on  merits  when
the suit was barred by limitation.  

 The Division  Bench  went  on  to  hold
that the  suit  herein,  which  was  filed  on  18.05.1999,  was  barred  by
limitation as the cause of action arose in April, 1994.  
 The  view  of  the
Single Judge that the plaint  initially  did  not  have  any  pleadings  for
availing the benefit under Section 14 of the Limitation  Act  and  that  the
same was incorporated by way  of  an  amendment  in  2005  was  upheld.  
The
Division Bench held that the Appellant  was  not  entitled  to  the  benefit
under Section 14 of the Limitation Act as there was no proof of the  earlier
suit having been prosecuted with due diligence and good faith and  dismissed
the appeal vide the impugned judgment.
  Mr. Nariman, learned senior counsel appearing for  the  appellant  put
heavy reliance on the decision in the case of  Ramesh  B.  Desai  vs.  Bipin
Vadilal Mehta, (2006) 5  SCC  638,  for  the  proposition  that  a  plea  of
limitation cannot be decided as an abstract principle of law  divorced  from
facts as  in  every  case  the  starting  point  of  limitation  has  to  be
ascertained which is entirely a question of fact.  A plea of  limitation  is
a mixed question of law  and  fact.   In  our  considered  opinion,  in  the
aforesaid decision this Court was considering the  provision  of  Order  XIV
Rule 2, CPC.  While interpreting the provision of Order  XIV  Rule  2,  this
Court was of the view that the issue on limitation, being a  mixed  question
of law and fact is to be decided along with  other  issues  as  contemplated
under  Order  XIV,  Rule  2,  CPC.   As  discussed  above,  Section  9A   of
Maharashtra Amendment Act makes a  complete  departure  from  the  procedure
provided under Order 14, Rule 2, CPC.  Section  9A  mandates  the  Court  to
decide the jurisdiction of the Court before proceeding  with  the  suit  and
granting interim relief by way of injunction.

57.   At the cost of repetition, we observe that Section 9A provides a self-
contained scheme with a non-obstante clause  which  mandates  the  court  to
follow the provision.  It  is  a  complete  departure  from  the  provisions
contained in Order XIV Rule 2 CPC.  In other words, the non-obstante  clause
inserted by Maharashtra Amendment Act of 1977 in Section 9A and the  express
mandate of the Section, the intention of the law  is  to  decide  the  issue
relating  to  jurisdiction   of   the   court   as   a   pre

The CCL is directed to verify the claim of each of the writ petitioners and then after giving adjustment of any amount if already found paid to the writ petitioners against their claim in question, refund the balance amount along with interests at the rate of 6% to the respective writ petitioners (companies). Let this be done within three months.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL Nos.  3399-3400  OF 2015
               (Arising out of S.L.P.(C) Nos.12925-12926/2013)

      S.J. Coke Industries Pvt. Ltd. Etc.          Appellant(s)


                             VERSUS


Central Coalfields Ltd. Etc.            Respondent(s)

                                    WITH

                 Civil Appeal No. 3419  of 2015
(Arising out of S.L.P.(C) No.13286/2013)

Civil Appeal No. 3401 of 2015
(Arising out of S.L.P.(C) No.14148/2013)

Civil Appeal No. 3402  of 2015
(Arising out of S.L.P.(C) No.14430/2013)

Civil Appeal No.  3403  of 2015
(Arising out of S.L.P.(C) No.14576/2013)

Civil Appeal No. 3404  of 2015
(Arising out of S.L.P.(C) No.15985/2013)

Civil Appeal No. 3405  of 2015
(Arising out of S.L.P.(C) No.15986/2013)

Civil Appeal No. 3406  of 2015
(Arising out of S.L.P.(C) No.15987/2013)

Civil Appeal No. 3407  of 2015
(Arising out of S.L.P.(C) No.15989/2013)

Civil Appeal No. 3408  of 2015
(Arising out of S.L.P.(C) No.15990/2013)

Civil Appeal No. 3409  of 2015
(Arising out of S.L.P.(C) No.15991/2013)

Civil Appeal No. 3410  of 2015
(Arising out of S.L.P.(C) No.15992/2013)

Civil Appeal No. 3411  of 2015
(Arising out of S.L.P.(C) No.15993/2013)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    Leave granted.
2.    These appeals are filed against the common judgment  and  order  dated
14.12.2012 passed by the High Court of Judicature at Patna  in  L.P.A.  Nos.
1574, 1581, 1504, 1571, 1597 and  1591  of  2012  and  judgment/order  dated
18.01.2013 in L.P.A. No. 85 of 2013  whereby  the  High  Court  allowed  the
appeals filed by the Central Coalfields Ltd.  (hereinafter  referred  to  as
"the CCL") and while setting aside the judgment  and  order  of  the  Single
Judge dismissed the writ petitions filed by the S.J.  Coke  Industries  Pvt.
Ltd. Etc.Etc.(hereinafter referred to as "the Companies").
3.    In order to appreciate the issues involved in  these  appeals,  it  is
necessary to state the background of the facts, which led to filing  of  the
writ petitions by the Companies, which have given rise to these appeals.
4.    These Companies are private limited  companies  registered  under  the
Companies Act, 1956. They are engaged in the business of sale  and  purchase
of various grades of Coal. The CCL is a Public  Sector  Undertaking  of  the
Government of India engaged in the business of producing various  grades  of
Coal. The CCL sells coal  to  several  bulk  coal  consumers  including  the
present Companies, who are linked consumer of the Coal. The  Coal  being  an
essential commodity, its prices and mode of disposal  are  governed  by  the
Acts/Regulations/Control  Orders  and  the  Policies  made  by  the  Central
Government/Coal Companies from time to time.
5.    With a view to further streamline the sale  and  distribution  of  the
Coal to its consumers all over the Country, the Union  of  India  enacted  a
Scheme in the year 2004-2005 for sale of  Coal  by  electronic  auction  (e-
auction). The Scheme inter alia provided the manner and  the  mode  relating
to sale, distribution and pricing of various grades of coal. The Coal  India
Ltd and its several subsidiary  companies  including  the  CCL  adopted  the
Scheme for its implementation.
6.    The legality and validity of the Scheme was challenged by filing  writ
petitions in various High Courts  by  the  traders,  and  several  companies
dealing with coal. So far as the  present  Companies  were  concerned,  they
filed writ petitions before the Jharkhand High Court.  During  the  pendency
of  the  writ  petitions,  different  High  Courts  passed  interim   orders
directing the writ petitioners to furnish  indemnity  bonds/Bank  Guarantees
for the amount of  difference  between  the  notified  price  and  e-auction
weighted average price of the Coal fixed in the Scheme.
7.    Some High Courts decided the writ  petitions  finally  on  merits  and
while allowing the  writ  petitions  declared  the  Scheme  as  ultra  vires
whereas some High Courts dismissed the writ petitions and upheld the  Scheme
as being legal and proper. In some High Courts, the writ petitions  remained
pending.  The appeals were filed in this Court arising out of  the  disposed
of matters by both parties.  This  Court  then  passed  an  order  directing
transfer of all pending writ petitions in various High Courts to this  Court
and tagged them with a bunch of the writ petitions/appeals pending  in  this
Court and made Ashoka Smokeless Coal Industries (P) Ltd. & Ors.   vs.  Union
of India & Ors. as the main matter for disposal.
8.    Accordingly,  Ashoka Smokeless Coal India (P) Ltd. was  taken  up  for
consideration  along  with  other  connected  matters  to  decide  the  main
question as to whether e-auction Scheme framed by the  Union  of  India  was
legal or not.  In other words, the question  was  which  view  of  the  High
Court was correct - the one that held the Scheme as legal or the other  that
held the Scheme as bad in law?
9.    This Court passed one common interim order  on  12.12.2005  in  Ashoka
Smokeless Coal Industries (P) Ltd. & Ors.   Vs.   Union   of  India  &  Ors.
(2006) 9 SCC 228 by modifying several  interim  orders,  directed  the  writ
petitioners to go on paying the price in addition to the notified  price  of
the coal 33-1/3% of the enhanced price each  time  they  claimed  supply  of
coal and to furnish security for the balance 66-2/3% of the  enhanced  price
of the Coal fixed in the Scheme.
10.   This Court by its final decision rendered  in  Ashoka  Smokeless  Coal
Industries (P) Ltd. & Ors. Vs. Union of India & Ors. on  01.12.2006,  (2007)
2 SCC 640 allowed the writ petitions and held that  the  e-  auction  Scheme
was violative of Article 14 of the Constitution  of  India  and,  therefore,
ultra  vires  to  the  Constitution.  The  entire   e-auction   Scheme   was
accordingly quashed. In the light of this decision,  the  judgments  of  the
High Courts which had upheld the Scheme were set aside whereas  those  which
had declared the Scheme as ultra vires were upheld.  As  a  result,  several
writ petitions pending in various High Courts were disposed of in the  light
of  this  decision.  Thereafter  by  order  dated  30.10.2007  in   Transfer
Petitions/Contempt Petitions, this Court directed refund  of  excess  amount
to the writ petitioners for which  the  sureties/Bank  Guarantees  had  been
furnished.   So far as the present companies were concerned, their claim  in
the writ petitions was for the months of April, July and October, 2005.
11.   The decision rendered in Ashoka  Smokeless  Coal  India  Ltd.  (supra)
gave rise to filing of several writ petitions  by  similarly  situated  coal
consumers in different High Courts such as Patna, Calcutta,  Jharkhand  etc.
seeking mandamus against the Coal Companies  to  refund  the  excess  amount
with interest which was realized by  the  coal  companies  pursuant  to  the
Scheme from the writ petitioners.
12.   The Single Judge of the Patna High Court  by  order  dated  01.07.2009
passed in Bhagwati Coke Industries Pvt. Ltd. & Ors. vs.  Central  Coalfields
Ltd. & Ors. (CWJC 7753/2008) allowed the  writ  petition  and  directed  the
Central  Coalfields  Ltd.  to  refund  the  entire  amount  which  they  had
collected from the writ petitioners in excess of the notified price  of  the
coal pursuant to the Scheme along with 12% interest.
13.   Feeling aggrieved by this order, the CCL  filed  L.P.A.  No.  1094  of
2009. By order dated 17.02.2010,  the  Division  Bench  of  the  High  Court
dismissed the appeal but reduced the rate  of  interest  payable  on  excess
refund amount from 12% to 6%. Dissatisfied with the said order, the  Central
Coalfields Ltd. filed Special Leave Petition (c) No. 17406/2010 before  this
Court. By order dated 19.07.2010, this Court  dismissed  the  special  leave
petition in limine and confirmed the order passed by the Division Bench.
14.   It may be pertinent to mention here that  similar  writ  petition  was
filed in the Calcutta High Court by the coal trader (Tetulia Coke Plant  (P)
Ltd.)  seeking refund of excess amount paid by them pursuant to  the  Scheme
to Eastern Coalfields Ltd.  with interest. The Division Bench  of  the  said
High Court by order dated 04.10.2010 allowed the writ petition and issued  a
mandamus directing the Eastern Coalfields Ltd. to refund the  entire  amount
which they had collected in excess from the writ petitioner pursuant to  the
Scheme. Felt aggrieved, the Eastern  Coalfields  Ltd.  filed  Special  Leave
Petition before this Court. By reasoned order dated  10.08.2011  in  Eastern
Coalfields Ltd. Vs. Tetulia Coke Plant Private Ltd. &  Ors.  (2011)  14  SCC
624, this Court dismissed the appeal and affirmed the order of the  Calcutta
High Court.
15.   It is with these background facts in relation to the legality  of  the
e-auction  Scheme  which  finally  terminated  in  writ  petitioners'  (coal
consumer/trader/supplier) favour on 1.12.2006 when this  Court  struck  down
the e-auction Scheme in the Case of Ashoka Smokeless Coal India (Supra)  and
on 19.07.2010 when this Court dismissed the SLP filed by Central  Coalfields
Ltd.  and confirmed the order of the Patna High  Court  which  had  directed
refund of excess amount recovered  by  the  Coal  Companies  from  the  writ
petitioners with interests at the rate of 6% which  had  become  payable  to
writ petitioners consequent upon the scheme - being declared bad in  law  in
Ashoka Smokeless Coal India (Supra)  and  lastly  again  on  10.08.2011   in
Eastern Coalfields Ltd. Vs. Tetulia Coke Plant Private  Ltd.  &  Ors.(supra)
when this Court dismissed the appeal filed by the  Eastern  Coalfields  Ltd.
which arose out of the order passed  by  the  Calcutta  High  Court  on  the
similar  issue  of  refund  of  excess  amount  which  had  become   payable
consequent upon declaration of e-auction Scheme as bad in law,  the  present
Companies filed  writ petitions on 10.08.2010  and  07.09.2010  against  the
Central Coalfields Ltd. before the High Court of Patna out  of  which  these
appeals arise and claimed refund of entire excess amount of  the  difference
paid between the notified prices of the Coal and the one fixed  pursuant  to
the e-auction Scheme with interest .
16.   According to the Companies,  they  were  entitled  to  get  refund  of
excess amount with interest from  the  CCL  consequent  upon  the  e-auction
Scheme being declared bad in law by this Court and further in the  light  of
law laid down in two decisions  of  this  Court  rendered  in  the  case  of
Central Coalfields Ltd. (supra) and Eastern Coalfields Ltd. (supra)  because
their cases  were  identical  in  nature  in  all  respects  with  the  writ
petitioners of these two cases decided by this  Court.  Other  traders  like
the present Companies  also  filed  writ  petitions  claiming  same  reliefs
against the respective Coalfield companies.
17.   The CCL contested the writ petitions essentially on  two  grounds.  In
the first place, it was contented that the writ petition was  liable  to  be
dismissed on the ground of  delay  and  laches  on  the  part  of  the  writ
petitioners because it was filed to claim refund of excess payment  made  in
April 2005 to October 2005 in the year 2010. In the  second  place,  it  was
contended that keeping in view the principle of undue  enrichment  operating
against the writ petitioners involving disputed issues of  facts,  the  writ
petitioners were not entitled to claim refund of any excess amount  in  writ
jurisdiction.
18.   The Single Judge repelled both the contentions of the  CCL  and  while
allowing the writ petitions issued a mandamus directing the  CCL  to  refund
the entire excess amount paid by the writ petitioners to CCL pursuant to  e-
auction Scheme to the writ petitioners with interest payable on such  amount
at the rate of 6%.
19.   Felt aggrieved, the CCL filed LPAs before the High Court of Patna  out
of which these appeals arise. By impugned order, the Division Bench  allowed
the appeals and while setting aside the order of the Single Judge  dismissed
the writ petitions filed by the Companies on the grounds that  firstly,  the
claim of the writ petitioners was not based on any fundamental or  statutory
right but was based on contract  and  hence  it  was  not  maintainable  and
secondly, the claim was not based on any  direction  issued  by  this  Court
or/and the High Court to refund the amount in question and lastly  the  writ
petition was barred by limitation. So far  as  the  contention  of  the  CCL
relating to principle of undue enrichment was concerned, the  same  did  not
find favour to the Division Bench and was accordingly  decided  against  CCL
holding that  since  the  writ  petitioners'  claim  does  not  involve  any
adjudication  of  disputed  facts,  therefore,  it  was  capable  of   being
entertained in the writ petitions.
20.   It is apposite to reproduce the finding of the Division Bench  on  the
aforementioned issues infra.
"We are unable to agree with Mr. Parasharan as  to  the  maintainability  of
the writ petitions on the ground of disputed questions of  fact.   The  writ
petitioners have made categorical statements that  prior  to  12th  December
2005 they did purchase coal from the appellants at the rate determined by e-
auction  i.e.  at  the  rate  higher  than  the  notified  rate.   The  writ
petitioners have also brought on record the particulars of the sale  orders,
the date and quantity of supply, the price paid and the amount liable to  be
refunded.  The said specific statements made in the writ petitions  are  not
categorically denied by the appellants.  A  bare  statement  that  the  writ
petitions involved disputed questions of fact will not  take  the  petitions
out of the jurisdiction of this Court.  In absence of specific  denial,  the
contention ought to be rejected and is rejected.  We are also not  impressed
by the argument that the claim  of  the  writ  petitioners  requires  to  be
rejected on the principles of unjust enrichment.  The matter at  hand  is  a
purely  commercial  transaction  between  the   appellant   and   the   writ
petitioners.  The principle of  unjust  enrichment  has  been  developed  in
respect of the statutory dues payable to the Government by way  of  a  tax/a
duty/a fee.  The principle has not  yet  been  extended  to  the  commercial
transactions of the Government which are governed by  terms  and  conditions
of the contract.  We do not propose to expand the horizons.  The  contention
is rejected.
..............................................................................
...............................................
In our opinion, in any view of the matter,  the  writ  petitioners  are  not
entitled to the relief for,

(i)    The claim for refund made by the writ     petitioners  is  not  based
on a fundamental or a statutory right;

the refund claimed by the writ petitioners arise from  a  contract  of  sale
and purchase;
the claim is not supported by  any  direction  of  the  High  Court  or  the
Hon'ble Supreme Court for refund of such amounts; the question of  honouring
the direction of the Hon'ble Supreme  Court  or  the  High  Court  does  not
arise, and;
indisputably, the claim has been made after expiry of period  of  limitation
prescribed for bringing a civil action."
21.   Feeling aggrieved, both parties i.e. writ petitioners (companies)  and
the Central Coalfields Ltd.  (CCL)  have  filed  these  appeals  by  way  of
special leave before this Court.
22.   So far as the writ petitioners (companies) are  concerned,  they  have
filed appeals against the findings, which resulted  in  dismissal  of  their
writ petitions whereas so far as Central Coalfields Ltd (CCL) is  concerned,
they have challenged the finding of undue enrichment, which was  decided  by
the Division Bench against them.
23.   This is how the entire controversy is now under challenge before  this
Court in these appeals  at the instance of both the parties to the  original
writ petitions.
24.   Heard learned counsel for the parties.
25.    Mr.  S.D.  Sanjay,  learned  Senior   Counsel   appearing   for   the
Companies(writ petitioners) while assailing the legality and correctness  of
the  impugned  judgment  of  the  Division  Bench  urged  five  submissions.
Firstly, he contended that the Division Bench erred in allowing the  appeals
filed by the CCL thereby erred in dismissing the writ petitions, which  were
rightly allowed by the Single Judge (writ  court).  According  to  him,  the
appeals of the CCL should have been dismissed by upholding the order of  the
Single Judge.
26.   Secondly, learned senior counsel contended  that  the  Division  Bench
erred in holding that the writ petitions filed by  the  Companies  were  not
maintainable because the claim for which the writ petitions were  filed  was
not based on any statutory or  fundamental  rights  but  was  based  on  the
contractual rights of the  Companies.  According  to  learned  counsel,  the
finding on this issue is entirely untenable because this issue  was  already
considered and dealt with by this Court in the case  of  Eastern  Coalfields
Ltd.(supra) and was rejected finding no merit therein.  It  was,  therefore,
his  submission  that  the  finding  of  this  Court  rendered  in   Eastern
Coalfields Ltd.(supra) was binding on the High  Court,  which  unfortunately
was neither noticed much less given effect to while deciding the issue.
27.   Thirdly, learned counsel contended that the Division  Bench  erred  in
holding that the writ petitions  filed  by  the  Companies  were  barred  by
limitation because they were filed beyond the period  of  three  years  from
the date of accrual of cause of action. According to learned  Counsel,  this
finding is equally untenable in law for the reason that firstly  this  issue
was considered, dealt with and  then  rejected  by  this  Court  in  Eastern
Coalfields Case; secondly, the cause of action to  file  writ  petition  for
claiming refund of excess amount arose on 19.07.2010 when the SLP  filed  by
the Central Coalfields (CCL) was dismissed (Annexure-14) by  this  Court  in
limine thereby finally settling the controversy relating to claim of  refund
of excess amount; thirdly, though law of limitation did  not  apply  to  the
writ petitions yet the Companies filed the writ petitions within  one  month
(10.08.2010) from the date of dismissal of SLP by  this  Court  (19.07.2010)
in the case of CCL and hence the writ petitions should  have  been  held  to
have been filed within reasonable time from the date of accrual of cause  of
action.  In other words, it should not have been dismissed on the ground  of
delay and laches.
28.   Fourthly, learned Counsel contended that once the issues  in  question
at the instance of similarly situated person  were  settled  by  this  Court
then every one alike was entitled  to  get  the  benefit  of  such  decision
against the State or/and its instrumentality on the  principle  of  equality
enshrined  under  Article  14.  Since  the  cases  of  the  Companies  (writ
petitioners) were identical  to  the  case  of  writ  petitioners  who  were
parties to the case of Central Coalfields Ltd. and Eastern  Coalfields  Ltd.
wherein all the issues raised by the CCL  were  discussed  thread  bear  and
eventually rejected by this Court, the CCL was not  entitled  to  raise  the
same pleas again in these appeals to persuade this Court to take a  contrary
view to the one taken in Eastern Coalfields  Ltd.  (supra)  case  except  to
accept the verdict  of  this  Court  rendered  in  Eastern  Coalfields  Ltd.
(supra) case for grant of same benefit to  all  similarly  situated  persons
such as the appellants herein.
29.   Fifthly, learned counsel contended that  the  Division  Bench  rightly
decided the issue of undue enrichment against the CCL because this Court  in
Eastern Coalfields Ltd.(supra) has already rejected the  said  plea  finding
no merit therein. In other words, the submission was  that  the  finding  of
the Division Bench on the issue of undue enrichment was in  conformity  with
the law laid down by this Court in Eastern  Coalfields  Ltd.  and  hence  it
should be upheld by this Court by dismissing the appeals filed by  the  CCL.
In the alternative, it was also urged that the  appeals  filed  by  the  CCL
were not maintainable because when  the  entire  impugned  judgment  was  in
their favour which resulted in allowing their appeal, then in such event  no
appeal would lie against the finding only.
30.   Mr.  Gaurav  Agrawal,  learned  counsel  appearing  for  some  of  the
companies while pointing out some factual distinguishable  features  in  his
appeals, adopted the aforesaid arguments of Mr. S.D. Sanjay, learned  senior
counsel appearing for other Companies.
31.   In contra,  learned  counsel  appearing  for  the  CCL  supported  the
impugned judgment on the reasoning and the eventual  conclusion  reached  by
the Division Bench and contended that both deserves to  be  upheld.  Learned
counsel further urged in support of their appeals that  the  Division  Bench
erred in deciding the issue of undue enrichment against the  CCL.  According
to learned counsel,  it  should  have  been  decided  in  their  favour  for
dismissal of the writ petitions.
32.   Having heard the learned Counsel the parties and  on  perusal  of  the
record of the case, we find force in the submissions of learned counsel  for
the Companies (writ  petitioners)  and  hence  are  inclined  to  allow  the
appeals filed by the writ petitioners (companies).
33.   In our  considered  view,  all  the  issues  arising  in  these  cases
including the submissions urged by the learned counsel for  the  parties  as
mentioned above were already decided by this Court in the  case  of  Eastern
Coalfields Ltd. (supra)  and  hence  the  writ  petitions  and  the  appeals
arising therefrom should have  been  decided  by  the  writ  court  and  the
appellate court (Division Bench) in the light of the law laid  down  in  the
said decision.
34.   It is really unfortunate that though the decision  of  this  Court  in
the Eastern  Coalfields  Ltd.(supra)  was  holding  the  field  having  been
rendered during the pendency of the writ petition on 10.08.2011 yet  neither
the Single Judge who decided the writ petition on  02.04.2012  and  nor  the
Division Bench who decided  the  appeal  on  14.12.2012  took  note  of  the
decision much less referred to it in their respective judgments. We  cannot,
therefore, countenance the approach of the two courts below in deciding  the
issue though it was of reversal.
35.   Article 141 of the Constitution provides  that  the  law  declared  by
this Court shall be binding on all Courts within  the  territory  of  India.
Therefore, once this  Court  decided  the  issue  in  the  case  of  Eastern
Coalfields  Ltd.(supra)  on  10.08.2011  by  passing  a  reasoned  order,  a
fortiori, the ratio decidendi declared in the said decision was  binding  on
all the Courts in the country for giving effect to  it  while  deciding  the
lis of the same nature. Both the Courts below were, therefore,  under  legal
obligation to have taken note of the said  decision  and  then  should  have
decided the writ petition/appeal  in  conformity  with  the  law  laid  down
therein. It was more so because controversy involved in both the  cases  was
similar in nature.
36.   As observed supra, both the Courts failed to do so  thereby  rendering
the impugned decision bad in law.
37.   When we peruse the decision of Eastern Coalfields  Ltd.,  we  find  no
factual distinction between the facts of  the  case  in  hand  and  the  one
involved in Eastern Coal Fields Ltd.. It is apposite to quote paragraphs  9,
10 and 11 of the judgment in Eastern Coalfields (supra) which will show  the
similarity in these two cases :
"9. There is no dispute with regard to the fact that  the  legality  of  the
scheme of e-auction was challenged by filing writ petitions in various  High
Courts by the traders  and  companies  dealing  with  coal.  Some  of  those
petitions were transferred to this Court pursuant  to  the  orders  of  this
Court, the leading case being Ashoka Smokeless Coal India (P)  Ltd.(2007)  2
SCC 640 which was taken up for consideration along  with  connected  matters
and the same were disposed of by this Court and the  said  decision  is  now
reported in Ashoka Smokeless. By the  aforesaid  judgment,  this  Court  has
upheld the challenge of the writ petitioners to the legality of  the  scheme
of e-auction. The aforesaid prayer of the writ petitioners was accepted  and
this Court held that the scheme of e-auction was invalid  and  violative  of
Article 14 of the Constitution of India and, therefore, it was  declared  to
be ultra vires to the Constitution and  this  Court  quashed  the  e-auction
scheme.
10. It must be indicated herein that the present respondent also  filed  the
writ petition in question in the Calcutta High Court  before  the  aforesaid
decision was rendered and in his case also an interim order  was  passed  by
the Calcutta High Court. After the disposal of Ashoka Smokeless  Coal  India
(P) Ltd., the writ  petition  filed  by  the  respondent  herein  which  was
pending was also considered and the same was allowed following the  decision
of this Court in Ashoka Smokeless Coal India (P) Ltd. as by  that  decision,
this Court has declared the entire scheme to be invalid and ultra  vires  to
the Constitution. Therefore, any action taken pursuant to  the  said  scheme
is also illegal and null and void. Following the ratio of the said  decision
this Court directed the coal companies to refund the price of the coal  paid
in excess  of  the  notified  price  under  the  e-auction  scheme.  Certain
guidelines were also laid down as to how such payments are to be  made.  The
said decision of the learned Single Judge was upheld by the  Division  Bench
of the High Court by affirming the conclusions and analysing all the  issues
that were raised before it.
11. We are unable  to  accept  the  contention  of  the  learned  Additional
Solicitor General that whatever is challenged in  the  present  petition  is
only an interim order. It is not so  because  the  respondents  herein  also
challenged the legality of the e-auction scheme in the  writ  petition.  The
High Court has not disposed of only an interim prayer but  has  disposed  of
the entire  writ  petition  by  its  judgment  and  order  dated  25-3-2010.
Consequently, it must also be held that when the entire  scheme  is  set  at
naught by this Court, whatever action has been taken following the  said  e-
auction by the Coal Company has  also  been  declared  to  be  illegal  and,
therefore, the Coal Company has become liable to  refund  the  entire  money
which  was  collected  in  excess  of  the  notified  price.  That  is   the
consequence of quashing of the scheme and the same came to be reiterated  by
this Court while  contempt  petitions  were  filed  and  were  disposed  of.
Therefore, it cannot be said that the effect of the [pic]decision of  Ashoka
Smokeless Coal India (P) Ltd. would be restricted only to those cases  which
were before this  Court  and  not  for  all  cases  which  were  pending  in
different High Courts at that stage,  at  least  to  the  issues  which  are
common in nature."

Perusal of the aforequoted paragraphs would go to show that  this  Court  in
no uncertain terms held in Eastern Coalfields case (supra) that  benefit  of
decision rendered  in  the  Ashoka  Smokeless  Coal  India  (supra)  is  not
confined to those who were parties to those cases but it  would  be  to  all
regardless of the fact whether they were party to the case or not.(see  Para
11 of the extracted  portion  above).  This  Court,  therefore,  upheld  the
relief of refund of excess amount, which was granted to the writ  petitioner
by the High Court of Calcutta and accordingly dismissed the appeal filed  by
the Eastern Coalfields Ltd.
38.   Like wise, this Court while expressly dealing  with  the  question  of
undue  enrichment  raised  by  the  Eastern  Coalfields  repelled  the  said
submission finding no merit therein in paragraph 12 in following words:
"12. The learned Additional Solicitor General has also submitted  before  us
that the respondents are not entitled to the benefit, if they are  otherwise
entitled to on the principles of unjust enrichment.  We  specifically  asked
the learned Additional Solicitor General during the course of the  arguments
to show us whether any such plea was taken in the writ  petition  which  was
filed before the learned Single  Judge.  The  learned  Additional  Solicitor
General was unable to show that any such defence or  plea  was  taken  about
unjust enrichment in the pleadings filed before the  learned  Single  Judge.
Such an issue was also not argued before the  learned  Single  Judge  as  no
such reference is there in the order of the learned  Single  Judge.  It  is,
however, stated by the learned Additional Solicitor  General  that  such  an
issue was raised before the Division Bench. But we could not find  the  same
raised in the pleadings nor was it considered. But a mention is made in  the
judgment that such  a  plea  was  argued.  However,  on  going  through  the
records, we find that no such  ground  has  also  been  taken  even  in  the
memorandum of appeal filed in the present appeal. Therefore, without  taking
a plea of unjust enrichment either in  the  writ  petition  or  before  this
Court, we are not inclined to allow him to argue the plea  at  the  time  of
argument and entertain such a plea, particularly, in view of the  fact  that
the respondents did not have any notice of such a plea taken for  the  first
time at argument stage."

 39.  It is, therefore, clear that the express challenge  laid  before  this
Court  at  the  instance  of  Eastern  Coalfields  on  the  issue  of  undue
enrichment was repelled.  In this view of the matter, we fail to  appreciate
as to on what basis, the another Coal Company  alike  Eastern  Coal  Company
can now be allowed to raise the same plea again in  these  proceedings  only
because this matter arise from another High Court. In other  words,  we  are
of the considered opinion that this  Court  having  rejected  the  issue  of
undue enrichment in the case of Eastern  Coalfields  (supra)  while  dealing
with the similar controversy, the same issue is no longer available  to  any
other Coal Company to raise in similar pending proceedings.  It is  more  so
when no distinguishing feature  in  both  the  cases  were  brought  to  our
notice.
40.   Coming now to the issue of refund of  excess  amount  payable  to  the
writ petitioners, we find that this Court has examined  the  said  issue  in
para 13 and decided in favour of the writ petitioners in following words.

"13. In the present case, it is a case of refund of price recovered  by  the
appellant in excess and not of any kind of payment of tax or duty.  Besides,
the appellant has already refunded  such  excess  amount  realised  to  many
other parties without raising any such plea. If anything is done by a  party
in violation of the law, consequence has to follow and  they  are  bound  to
return the money to the parties from whom excess amount has  been  realised.
There is also no document placed on record in  support  of  any  such  plea.
Bald allegation of this nature cannot be accepted particularly when no  such
plea has been raised in this Court."

41.   In the light of aforesaid law laid down, we find no  justification  to
deny the benefit of such law to the present Companies(writ  petitioners)  on
the ground of parity  with the writ petitioner of  Central  Coalfields  Ltd.
and Eastern Coalfields Ltd case.
42.   As  taken  note  of  supra,  in  our  opinion  having  regard  to  the
background facts of this case, the right to  file  writ  petition  to  claim
refund of excess amount arose after the issue  was  decided  by  this  Court
firstly on 19.07.2010 when this Court dismissed the  SLP  filed  by  Central
Coalfield Ltd. in limine and upheld the reasoned order  of  the  Patna  High
Court on this very issue.  It is not in dispute  that  the  Companies  filed
the writ petitions on 10.08.2010 (within one month  from  the  date  of  the
decision of this  Court  in  Central  Coalfields  Ltd.  case).  Indeed,  the
Companies could have  filed  the  writ  petitions  even  subsequent  to  the
decision rendered  in  the  case  of  Eastern  Coalfield  Ltd.  (10.08.2011)
because it is in this case, this Court rendered a reasoned judgment  finally
repelling all the objections of Coal Companies  on  merits  and  upheld  the
right of the writ petitioners to claim refund of excess  amount  which  they
had paid to CCL and other coal fields pursuant to the Scheme.
43.   We cannot, therefore, concur with  the  view  taken  by  the  Division
Bench when it proceeded to dismiss the  writ  petitions  on  the  ground  of
delay and laches. The Single Judge, in our  view,  rightly  entertained  the
writ petitions on merits and proceeded to grant relief  as  claimed  by  the
companies in the writ petition and  the  Division  Bench,  in  our  opinion,
should have upheld the view of the Single Judge.
44.   In the light of foregoing  discussion,  we  find  that  all  the  five
submissions  urged  by  the  learned  counsel  for   the   Companies   (writ
petitioners)  found  acceptance  to  this  court  in  the  case  of  Eastern
Coalfields Ltd., and hence the same deserves to be accepted  while  deciding
these  appeals  by  placing  reliance  on  the  law  laid  down  in  Eastern
Coalfields Ltd.  We, therefore, do  not  consider  necessary  to  deal  with
these submissions again on their respective  merits  elaborately  by  taking
note of various case law cited by learned counsel for the appellant.
45.   Since we have rejected the ground  taken  by  the  Central  Coalfields
India Ltd. (CCL) in relation to undue enrichment on  merits,  and  hence  we
express no opinion as to whether the appeals filed by them only against  the
finding is maintainable or not. We also find that  no  prayer  was  made  by
learned counsel for the CCL to treat or convert the appeals filed by CCL  as
memorandum of cross objection under Order 41 Rule 22 of the  Code  of  Civil
Procedure, 1908, in appeals filed by companies  so  as  to  enable  them  to
challenge the impugned finding under order 41 Rule 22. We also do  not  wish
to examine the question as to whether  cross  objection  is  permissible  on
behalf of respondent in an appeal arising out of  SLP  filed  under  Article
136 and leave all these questions open to be decided in an appropriate  case
as and when occasion arises in future.
46.   Before parting with the case, we consider it opposite  to  state  that
this case reminds us  of  the  subtle  observations  made  by  Justice  M.C.
Chagla, Chief Justice of Bombay High Court in Firm Kaluram Sitaram  Vs.  The
Dominion of India, AIR 1954 Bombay 50. The  learned  Chief  Justice  in  his
distinctive style of writing held as under:

"....we have often had occasion to say that when  the  State  deals  with  a
citizen it should not ordinarily rely on technicalities, and  if  the  State
is satisfied that the case of the citizen is a just one, even  though  legal
defences may be open to it, it  must  act,  as  has  been  said  by  eminent
judges, as an honest person.........."


47.   Keeping in view the stand taken by the CCL and  the  manner  in  which
they contested the cases at all stages in different High Courts and in  this
Court by raising same pleas despite their adjudication by  this  Court  lead
us to draw a conclusion that untenable pleas were being raised by  CCL  just
to defeat the legitimate claim of the citizens determined  in  their  favour
by this Court in earlier litigations and which was known to CCL.
48.   In view of  foregoing  discussion,  the  appeals  filed  by  the  writ
petitioners i.e. appeals arising out of S.L.P.(c) Nos.  12925-12926,  13286,
14148, 14576,  15992  &  15993  of  2013  deserve  to  be  allowed  and  are
accordingly allowed though on different reasons which we have  given  above.
As a consequence, the impugned judgments/orders are set aside  and  that  of
the Single Judge restored.
49.   As a consequence, the appeals filed by the Central Coalfields  Ltd.  -
C.A. arising out of S.L.P.(c) Nos. 14430, 15985, 15986, 15987, 15989,  15990
and 15991 of 2013 stand dismissed.
50.   The CCL  is  directed  to  verify  the  claim  of  each  of  the  writ
petitioners and then after giving adjustment of any amount if already  found
paid to the writ petitioners against their claim  in  question,  refund  the
balance amount along with interests at the rate  of  6%  to  the  respective
writ petitioners (companies).  Let this be done within three months.


                       .............................................J.
                             [VIKRAMAJIT SEN]


               ..............................................J.
                             [ABHAY MANOHAR SAPRE]


      New Delhi;
      April 08, 2015.


-----------------------
35

no offence under Section 304A IPC - but owners are liable to pay compensation as she died while doing their work and as well as the State Govt. Chief Minister's Distress Relief Fund

deceased
was working as a maid for the last five years in the house  of  respondents.
On 15.4.2005, the deceased  died  due  to  electric  shock  in  the  washing
machine while working in the house of the respondents No. 1 & 2.
 After due enquiry, the Electric Inspector has given  his  report
dated 23.02.2006, in which he has reported that  there  is  a  single  phase
current connection in the house of  the  respondents  No.1  &  2.    He  has
further reported that although body of the washing machine was eleven  years
old but when the insulation value was taken, it was found that there  is  no
possibility of  current  leakage  in  the  washing  machine.   It  was  also
reported that by mistake deceased might have tried to turn on  and  off  the
switch with wet hands and at that time she  might  have  come  into  contact
with the live portion behind the plug and died due to  electric  shock

 As the death  of  the
deceased was caused on account of the operation of the washing machine,  the
respondents No.1 & 2, who engaged Ammini for the said  work  are  liable  to
compensate the deceased.   It is to be noted that the  object  of  providing
compensation in this case is to help the family of the deceased.

 As decided by the State Government, the  third  respondent-State
of Kerala shall  pay  an  amount  of  Rs.1,00,000/-  from  Chief  Minister's
Distress Relief Fund to the appellant.  Additionally,   the respondents  No.
1 & 2 shall pay a compensation of Rs.1,00,000/- to the  appellant  within  a
period of four weeks from today.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO.  582        OF 2015
                (Arising out of S.L.P. (Crl.) No. 1632/2014)


RAJAN                                                      ...Appellant

                                   Versus

JOSEPH & ORS.                                    ..Respondents

                               J U D G M E N T
R. BANUMATHI, J.

Leave granted.
2.          This appeal by way of special  appeal  arises  out  of  judgment
dated 20.3.2013, passed by the High Court of Kerala at Ernakulam in Crl.  M.
C. No.1325 of 2007, allowing the  application  filed  u/s  482  Cr.P.C.  and
quashing the proceeding initiated against the respondents in C.C. No.994  of
2006  u/s  304A  IPC,  pending  before  Judicial  First  Class   Magistrate,
Kodungallur,  Thrissur District, Kerala.
3.          Brief facts which led to  the  filing  of  this  appeal  are  as
under:- The appellant herein is the husband  of  the  deceased-Ammini,   who
was working as a maid  for  more  than  five  years  in  the  house  of  the
respondents No.1 & 2.  Ammini  died  on  15.4.2005  due  to  electric  shock
allegedly sustained by her while working on washing machine in the house  of
the respondents No. 1 & 2.   Initially,  the  case  was  registered  by  the
Mathilakam  Police  as  "unnatural  death"  u/s  174   Cr.P.C,   but   after
investigation 'refer report' was filed,  stating  that  it  was  "accidental
death".  The appellant filed a private complaint before  the  JMFC  and  the
Magistrate took cognizance of the case u/s 304A IPC and  issued  summons  to
the respondents. The respondents approached  the  High  Court,  praying  for
quashing the case pending before JMFC.   High Court allowed the  application
thereby  quashing  the  proceedings  initiated  against  respondents   under
Section 304A IPC.   In this appeal, appellant  assails  the  correctness  of
the said order.
4.          We have heard the learned counsels for  the  appellant  and  the
respondents.
5.          The appellant alleged that due to rash and negligent act of  the
respondents No.1 & 2, deceased-Ammini died.  It is undisputed that  deceased
was working as a maid for the last five years in the house  of  respondents.
On 15.4.2005, the deceased  died  due  to  electric  shock  in  the  washing
machine while working in the house of the respondents No. 1 & 2.   To  prove
the charge under Section 304A IPC, it is necessary to  establish  the  guilt
of respondents No.1 & 2 i.e. the accused, acted in  a  negligent  manner  in
not taking reasonable care of their washing machine and caused the death  of
deceased-Ammini due to electric shock.
6.          After due enquiry, the Electric Inspector has given  his  report
dated 23.02.2006, in which he has reported that  there  is  a  single  phase
current connection in the house of  the  respondents  No.1  &  2.    He  has
further reported that although body of the washing machine was eleven  years
old but when the insulation value was taken, it was found that there  is  no
possibility of  current  leakage  in  the  washing  machine.   It  was  also
reported that by mistake deceased might have tried to turn on  and  off  the
switch with wet hands and at that time she  might  have  come  into  contact
with the live portion behind the plug and died due to  electric  shock.   As
seen from the certificate issued  from  Modern  Hospital,  Kodungallur,  the
respondents immediately rushed to the hospital  to  save  the  life  of  the
deceased and she was declared dead  by  the  Doctor-CW3.    Considering  the
materials on record, we concur with the views expressed by  the  High  Court
that no offence under Section 304A IPC is made out  and  in  our  view,  the
High Court has rightly quashed the proceedings initiated before JMFC.
7.          Although no rash or negligent act is noticed on the part of  the
respondents, the  fact  remains  that  the  deceased-Ammini  was  doing  the
household work for the  respondents   No.1  &  2  and  working  as  per  the
instructions of the respondents at the relevant time.  As the death  of  the
deceased was caused on account of the operation of the washing machine,  the
respondents No.1 & 2, who engaged Ammini for the said  work  are  liable  to
compensate the deceased.   It is to be noted that the  object  of  providing
compensation in this case is to help the family of the deceased.     Learned
counsel   for  the   State   of   Kerala   has   produced   a   letter   No.
16770/J2/2015/Home dated 20.03.2015 from Home (J) Department  of  Government
of Kerala for our perusal, as per which the State Government has decided  to
sanction an amount of Rs.1,00,000/- to the appellant from  Chief  Minister's
Distress Relief Fund.  The deceased  belonged  to  a  lower  strata  of  the
society, in the interest of justice,  in  exercise  of  our  extra  ordinary
jurisdiction under Article 142 of the Constitution  of  India,  we  deem  it
appropriate to direct the respondents No.1 & 2 also to pay  compensation  to
the appellant.
8.          As decided by the State Government, the  third  respondent-State
of Kerala shall  pay  an  amount  of  Rs.1,00,000/-  from  Chief  Minister's
Distress Relief Fund to the appellant.  Additionally,   the respondents  No.
1 & 2 shall pay a compensation of Rs.1,00,000/- to the  appellant  within  a
period of four weeks from today.   With the above direction, this appeal  is
disposed of.


                          ......................J.
                                 (T.S. Thakur)


                                                    ......................J.
                                                          (Kurian Joseph)


                                                    ......................J.
                                                          (R. Banumathi)
New Delhi,
April  8, 2015

whether the writ petitioner is entitled to count his service as Assistant Engineer from 12th June, 1985, the date of his initial appointment on an 'ad hoc' basis, for purposes of seniority or his service will be counted only from 14th December, 1989, the date on which approval to his appointment was given by the State Government under the provisions of the Uttar Pradesh Regularisation of Ad hoc Appointments (on posts within the purview of the Public Service Commission) Rules, 1979 ("1979 Rules") as amended on 7th August, 1989 by the Uttar Pradesh Regularisation of Ad Hoc Appointments (on posts within the purview of the Public Service Commission) (Second Amendment) Rules, 1989 ("1989" Rules).- We, therefore, direct the State to redetermine the seniority after hearing the affected parties within six months. It is made clear that benefit of redetermination of seniority at this stage will not disturb holding of posts by any incumbent and except for benefit in pension other benefits to which the writ petitioner may be found entitled will be given only on notional basis.

REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3348 OF 2015
                (ARISING OUT OF SLP (CIVIL) NO.18683 OF 2004)


SECRETARY, MINOR IRRIGATION DEPTT. & R.E.S.              ...APPELLANT

                                   VERSUS

NARENDRA KUMAR TRIPATHI                                      ...RESPONDENT

                                    WITH

                        CIVIL APPEAL NO.3349 OF 2015
                (ARISING OUT OF SLP (CIVIL) NO.8330 OF 2005)


                               J U D G M E N T

ADARSH KUMAR GOEL, J.

Leave granted.

2.    These appeals have been preferred against  judgment  and  order  dated
13th February, 2003 in Civil Miscellaneous Writ  Petition  No.9940  of  2001
and dated 10th December, 2004 in Civil Miscellaneous Writ Petition  No.11542
of 2003 passed by the High  Court  of  Judicature  at  Allahabad.    Special
Leave Petition (Civil)  No.18683  of  2004  has  been  filed  by  the  Minor
Irrigation Department of State of Uttar Pradesh ("the Department")  and  SLP
(Civil) No.8330 of 2005 has been filed  by  Narendra  Kumar  Tripathi  ("the
writ  petitioner")  employed  as  engineer  with  the  Department  of  Minor
Irrigation, Rural Engineering in the State of Uttar Pradesh.   In  both  the
matters, the question involved is whether the writ  petitioner  is  entitled
to count his service as Assistant Engineer from 12th June,  1985,  the  date
of his initial appointment on an 'ad hoc' basis, for purposes  of  seniority
or his service will be counted only from 14th December, 1989,  the  date  on
which approval to his appointment was given by the  State  Government  under
the provisions of the Uttar Pradesh Regularisation of  Ad  hoc  Appointments
(on posts within the purview of the Public Service Commission)  Rules,  1979
("1979 Rules")  as  amended  on  7th  August,  1989  by  the  Uttar  Pradesh
Regularisation of Ad Hoc Appointments (on posts within the  purview  of  the
Public Service Commission) (Second Amendment) Rules, 1989
("1989" Rules).

3.    The writ  petitioner  was  first  appointed  as  Work  Engineer  (Work
Charge) on a fixed pay of Rs.650/-  on  18th  January,  1983.   Later,  vide
Office Memo dated 12th June, 1985 issued by  the  Secretary,  Government  of
Uttar Pradesh, Rural Development Section on the basis of recommendations  of
the Selection Committee, he was appointed on  temporary  post  of  Assistant
Engineer in regular scale on ad  hoc  basis.   The  letter  of  appointment,
inter alia, provided that the appointment was purely on  ad  hoc  basis  and
his services could be terminated by notice or on availability of  candidates
duly selected through Public Service Commission and  the  appointee  had  no
claim for regular appointment.  The  said  appointment,  however,  continued
and was followed by "Notification/Regularization" dated 14th December,  1989
as per the 1979 Rules as amended by 1989 Rules.

4.    The 1979 Rules provided for regularization of ad  hoc  appointment  of
persons possessing  requisite  qualifications  for  regular  appointment  on
completion  of  three  years  continuous  service.   Rule  7  provides   for
seniority from the date of order of appointment after selection.   The  said
Rules though initially applicable to appointments made prior to January  01,
1977 were extended from time to time and  on  7th  August,  1989,  the  said
rules were extended to persons directly appointed on  ad  hoc  basis  on  or
before 1st October, 1986 and who continued in service.

5.    Rules 4 and 7 are as under :

"4.   Regularisation of adhoc appointments : (1) any     person who -

(i)   was directly appointed on ad hoc basis before January 1, 1977  and  is
continuing in service as such on the date of commencement of these rules;

(ii)     possessed   requisite   qualifications   prescribed   for   regular
appointment at the time of such ad hoc appointment; and

(iii)   has completed or, as the case may be, after he has  completed  three
years continuous service shall be  considered  for  regular  appointment  in
permanent or temporary vacancy as may be  available  on  the  basis  of  his
record and suitability before  any  regular  appointment  is  made  in  such
vacancy in accordance with the relevant service rules or order.

(2)   In making regular appointments under  these  rules,  reservations  for
the  candidates  belonging  to  the  Scheduled  Castes,  Scheduled   Tribes,
Backward classes and other categories shall be made in accordance  with  the
order of the Government in force at the time of recruitment.

(3)   For the  purpose  of  sub-rule  (1)  the  appointing  authority  shall
constitute a Selection Committee and consultation with the Commission  shall
not be necessary.

(4)  The appointing authority shall  prepare  an  eligibility  list  of  the
candidates, arranged in order of seniority, as determined from the  date  of
order of appointment and if two or more persons are appointed together  from
the order in which their names are arranged in the said  appointment  order,
the list shall be placed before the Selection  Committee  along  with  their
character rolls and such  other  records,  pertaining  to  them  as  may  be
considered necessary to judge their suitability.

(5)    The Selection Committee shall consider the cases  of  the  candidates
on the basis of their records referred to in sub-rule (4).

(6)    The  Selection  Committee  shall  prepare  a  list  of  the  selected
candidates, the names in the list being arranged in order of  seniority  and
forward it to the appointing authority."



7.    Seniority :- (1)  A  person  appointed  under  these  rules  shall  be
entitled to seniority only from the  date  of  order  of  appointment  after
selection in accordance with these rules and shall, in all cases  be  placed
below the persons appointed in accordance with the relevant  service  rules,
or as the case may be,  the  regular  prescribed  procedure,  prior  to  the
appointment of such person under these rules.

(2)   If two or more persons are appointed together, their  seniority  inter
se shall be determined in the order mentioned in the order of appointment."

6.    The 1989 amendment to the Rules inserted Rule 10 as follows :

"10.   Extension to the rules: - The provisions of these rules  shall  apply
mutatis mutandis, also to any person directly appointed on ad hoc  basis  on
or before October 1, 1986 and continuing in service as such, on the date  of
commencement of the Uttar Pradesh Regularization of Ad hoc Appointments  (on
posts  within  the  purview  of  the  Public  Service  Commission)   (Second
Amendment) Rules, 1989."

7.    The writ petitioner filed Civil Miscellaneous  Writ  Petition  No.9940
of 2001 with the grievance that in  the  seniority  list  published  on  4th
January, 1995 his name was placed  at  Serial  No.274  showing  his  service
w.e.f. 14th December, 1989.   In doing so, he was not given benefit of  past
service, while such benefit was given to  other  similarly  placed  persons.
This contention was noticed by the High Court as follows :

"A perusal of the seniority list shows that persons placed  at  Serial  No.8
to 64 were regularized vide order  dated  15-4-1985  w.e.f.  14-5-1979,  and
similarly the person placed at serial No.132 was regularized by order  dated
17-1-1990 w.e.f. 13-5-1984.  One Subhash Singh whose name is at serial  No.8
was given the benefit of  his  previous  service  and  his  seniority  fixed
accordingly.  However petitioner was not given any benefit of  his  previous
service in the department."

      The High Court held that the writ petitioner was entitled  to  benefit
of past service in view of the law down by  this  Court  in  Direct  Recruit
Class II Engineering  Officers  Association  vs.  State  of  Maharashtra[1].
Accordingly, the High Court directed that the initial  date  of  appointment
of the writ petitioner be taken as 18th January,  1983.   Aggrieved  by  the
said view, the State has approached this Court.

8.    However, during pendency of the matter in this Court, the issue  arose
in other pending matters before the High Court  including  the  second  writ
petition  by  the  writ  petitioner  Narendra  Kumar  Tripathi  being  Civil
Miscellaneous Writ Petition  No.11542  of  2004  which  was  filed  to  seek
compliance of earlier order of the High Court.  The matter was  referred  to
a larger Bench and was heard and decided by a Bench  of  three  Judges  vide
Judgment dated 10th December, 2004 "Farhat  Hussain  Azad  versus  State  of
U.P. & Ors." against which the department has approached this Court.

9.    Referring to the decision of this Court in  State  of  West  Bengal  &
Ors. vs. Aghore Nath Dey & Ors.[2] laying down that, to count past  service,
initial appointment has to be according to rules and if initial  appointment
is ad hoc, not according to rules and is made as a 'stop  gap  arrangement',
the officiation in such posts cannot be taken into account for counting  the
seniority, the High Court held that appointment on ad hoc basis  dehors  the
rules and without following the procedure prescribed  under  the  law  could
not be counted for seniority.   Accordingly,  it  was  held  that  the  writ
petitioner was not entitled to count ad hoc service for his seniority.   The
judgment dated 12th  February,  2003  rendered  in  the  case  of  the  writ
petitioner which is the subject matter of appeal  filed  by  the  State  was
held to be  per  incuriam.   Aggrieved  thereby,  the  writ  petitioner  has
approached this Court  by  way  of  appeal  arising  out  of  Special  Leave
Petition (Civil) No.8330 of 2005.
10.   We have heard learned counsel for the parties.

11.   Learned counsel for the writ petitioner submitted that the view  taken
by the larger Bench of the High Court is based on erroneous assumption  that
the appointment of the writ petitioner was stop gap arrangement  and  dehors
the rules.  Careful perusal of the scheme of the  rules  and  their  working
shows that the appointment of writ petitioner was neither against the  rules
nor by way of stop gap arrangement.  It was made clear  by  learned  counsel
for the writ petitioner that the claim of the writ  petitioner  was  limited
for counting service from 12th June, 1985 when he was  appointed  after  due
selection in regular pay scale.  It is  pointed  out  that  under  the  1979
Rules to meet exigency of service,  appointments  were  being  made  without
approval  of  the  Public  Service  Commission  and  were  being  thereafter
regularized. Service of such persons was being  counted  from  the  date  of
initial appointment made after due selection.  In  the  present  case  also,
the writ petitioner was duly selected and though the  terms  of  appointment
provided for his service being terminated on a  person  selected  by  Public
Service Commission  joining  service,  such  a  situation  never  arose  and
services of the writ petitioner continued and were  regularized  thereafter.
In these circumstances, the past service of the writ  petitioner  could  not
be ignored.

12.   Learned counsel for the State however, submitted that the  view  taken
by the larger Bench was the correct view and ad  hoc  service  as  stop  gap
arrangement could not be taken into account.  At the time of appointment  no
rules had been framed.

13.   After giving due consideration to the rival  submissions,  we  are  of
the view that the contention of the writ petitioner has to  be  upheld.   No
doubt, ad hoc service, when appointment was  against  rules  and  purely  as
stop gap arrangement, cannot be counted for the purposes  of  seniority,  as
held by the larger Bench of the High Court and in several judgments of  this
Court, including in Keshav Chandra Joshi  vs.  Union  of  India[3]  but  the
present is not the case where the ad hoc service is purely by  way  of  stop
gap arrangement or against the rules.

14.   At this stage, observations of this  Court  in  some  of  the  leading
judgments may be referred  to.   In  Direct  Recruit  Class  II  Engineering
Officers' Association, it was observed:-
"47. To sum up, we hold that:

      [pic](A)   Once an incumbent is  appointed  to  a  post  according  to
rule, his seniority has to be counted from the date of his  appointment  and
not according to the date of his confirmation.

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

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



15.   In Aghore Nath Dey, the above observations were explained as follows:-

"25. In our opinion, the conclusion (B) was added to cover a different  kind
of situation, wherein the appointments are  otherwise  regular,  except  for
the deficiency of certain procedural requirements laid down  by  the  rules.
This is clear from the opening words of the conclusion (B), namely, 'if  the
initial appointment is not made by following the procedure laid down by  the
'rules' and the latter expression 'till the regularisation  of  his  service
in accordance with the rules'. We read conclusion (B), and  it  must  be  so
read to reconcile with conclusion (A), to cover the cases where the  initial
appointment  is  made  against  an  existing  vacancy,  not  limited  to   a
[pic]fixed period of time or purpose by the appointment  order  itself,  and
is made subject to the deficiency in the procedural requirements  prescribed
by the rules for adjudging suitability of the appointee for the  post  being
cured at the time  of  regularisation,  the  appointee  being  eligible  and
qualified in every manner for a regular appointment on the date  of  initial
appointment in such cases. Decision about the  nature  of  the  appointment,
for determining whether it falls in this category, has to  be  made  on  the
basis of the terms of the initial appointment itself and the  provisions  in
the rules. In such cases, the  deficiency  in  the  procedural  requirements
laid down by the rules has to be cured at the first  available  opportunity,
without any default of the employee, and the appointee must continue in  the
post uninterruptedly till the regularisation of his service,  in  accordance
with the rules. In such cases,  the  appointee  is  not  to  blame  for  the
deficiency in the procedural requirements under the rules  at  the  time  of
his initial appointment, and the appointment not being limited  to  a  fixed
period of time is intended to be  a  regular  appointment,  subject  to  the
remaining procedural requirements  of  the  rules  being  fulfilled  at  the
earliest. In such cases also, if there be any delay in  curing  the  defects
on account of any fault of the appointee, the appointee would  not  get  the
full benefit of the earlier period on account of his  default,  the  benefit
being confined only to the period  for  which  he  is  not  to  blame.  This
category of cases is different  from  those  covered  by  the  corollary  in
conclusion (A) which relates to appointment  only  on  ad  hoc  basis  as  a
stopgap arrangement and not  according  to  rules.  It  is,  therefore,  not
correct to say, that  the  present  cases  can  fall  within  the  ambit  of
conclusion (B), even though they are squarely covered by  the  corollary  in
conclusion (A)."


16.   In Rudra Kumar Sain & Ors. vs.  Union  of  India  &  Ors.[4],  it  was
observed:-
"15. So far as the terminology used in  Singla  case  [1984  (4)  SCC  450],
namely "ad hoc", "fortuitous" and "stopgap", the same is quite  familiar  in
the service jurisprudence. Mr Rao, appearing for the  High  Court  of  Delhi
however contended before us that the said terminology should  be  given  the
same meaning, as was given in Parshotam Lal Dhingra v. Union of  India  [AIR
1958 SC 36 : 1958 SCR 828]. In Dhingra case the Court was examining  whether
removal of an employee can be held to be penal and  whether  Article  311(2)
of the Constitution can at all be attracted  and  the  Court  also  observed
that certain amount of confusion arises because of  the  indiscriminate  use
of the words "provisional", "officiating" and  "on  probation".  We  do  not
think that the concept or meaning given  to  those  terminology  in  Dhingra
case will have any application to the case  in  hand,  where  the  Court  is
trying  to  work-out  an  equitable  remedy  in  a  manner  which  will  not
disentitle an appointee, the benefit of his fairly long  period  of  service
for the purpose  of  seniority,  even  though  he  possesses  the  requisite
qualification and even though  his  appointment  has  been  made  after  due
consultation and/or approval of the High Court.

[pic]16. The three  terms  "ad  hoc",  "stopgap"  and  "fortuitous"  are  in
frequent use in service jurisprudence.  In  the  absence  of  definition  of
these terms in the Rules in question we  have  to  look  to  the  dictionary
meaning of the words and the meaning commonly assigned to  them  in  service
matters. The meaning  given  to  the  expression  "fortuitous"  in  Stroud's
Judicial Dictionary  is  "accident  or  fortuitous  casualty".  This  should
obviously connote that if an appointment is made accidentally, because of  a
particular emergent situation  and  such  appointment  obviously  would  not
continue for a fairly long period. But  an  appointment  made  either  under
Rule 16 or 17 of the Recruitment Rules,  after  due  consultation  with  the
High Court and the appointee  possesses  the  prescribed  qualification  for
such appointment provided in Rule 7 and continues as such for a fairly  long
period, then the same cannot be held to  be  "fortuitous".  In  Black's  Law
Dictionary, the expression "fortuitous"  means  "occurring  by  chance",  "a
fortuitous event may be highly unfortunate".  It  thus,  indicates  that  it
occurs only by chance or accident, which  could  not  have  been  reasonably
foreseen.  The  expression  "ad  hoc"  in  Black's  Law  Dictionary,   means
"something which  is  formed  for  a  particular  purpose".  The  expression
"stopgap" as per Oxford Dictionary, means "a temporary way of  dealing  with
a problem or satisfying a need".

17. In Oxford Dictionary, the word "ad hoc" means for a particular  purpose;
specially. In the same dictionary, the word "fortuitous" means happening  by
accident or chance rather than design.

18. In P. Ramanatha Aiyar's Law Lexicon (2nd Edn.)  the  word  "ad  hoc"  is
described  as:  "For  particular  purpose.  Made,  established,  acting   or
concerned with a particular (sic) and  or  purpose."  The  meaning  of  word
"fortuitous event" is given as "an event which happens by a cause  which  we
cannot resist; one which is unforeseen and caused by superior  force,  which
it is impossible to resist; a term synonymous with Act of God".

19. The meaning to be assigned to these terms while interpreting  provisions
of a service rule will depend  on  the  provisions  of  that  rule  and  the
context in and the purpose for which the expressions are used.  The  meaning
of any of these terms in the context of computation of  inter  se  seniority
of officers holding cadre post will depend on the  facts  and  circumstances
in which the appointment came to be  made.  For  that  purpose  it  will  be
necessary to look into the purpose for which the post was  created  and  the
nature of the appointment of  the  officer  as  stated  in  the  appointment
order. If the appointment order itself indicates that the  post  is  created
to meet a particular temporary contingency and for  a  period  specified  in
the order, then the appointment to such a post can  be  aptly  described  as
"ad hoc" or "stopgap". If a post is created to meet a  situation  which  has
suddenly arisen on account of happening of some event of a temporary  nature
then the appointment of such a post can aptly be described  as  "fortuitous"
in nature. If an appointment is made to  meet  the  contingency  arising  on
account of delay in completing the process of  regular  recruitment  to  the
post due to any reason and it is not possible to leave the post vacant  till
then, and to meet this contingency  an  appointment  is  made  then  it  can
appropriately be called [pic]as a "stopgap" arrangement and  appointment  in
the post as "ad hoc" appointment. It is not possible to lay down any strait-
jacket formula nor give an exhaustive list of  circumstances  and  situation
in which such an appointment (ad hoc, fortuitous or stopgap)  can  be  made.
As such, this discussion is not intended to enumerate the  circumstances  or
situations in which appointments of officers can be said to come within  the
scope of any of these terms. It is only to indicate how  the  matter  should
be approached while dealing with the questions  of  inter  se  seniority  of
officers in the cadre.

20.  In  service  jurisprudence,  a  person  who  possesses  the   requisite
qualification for being appointed to  a  particular  post  and  then  he  is
appointed with the approval and consultation of  the  appropriate  authority
and  continues  in  the  post  for  a  fairly  long  period,  then  such  an
appointment cannot be held to be "stopgap or fortuitous or purely  ad  hoc".
In  this  view  of  the  matter,  the  reasoning  and  basis  on  which  the
appointment of the promotees in the Delhi Higher  Judicial  Service  in  the
case in hand was held by the High Court to  be  "fortuitous/ad  hoc/stopgap"
are wholly erroneous and, therefore, exclusion of those appointees  to  have
their continuous length of service for seniority is erroneous."


17.   The above principles are undisputed.  Question  of  their  application
has arisen from time to time in different fact situations.  Question  to  be
decided in each case was whether the ad hoc appointment  was  stop  gap  and
fortuitous as against being to  an  existing  vacancy  which  continued  and
initial appointment was made  after  due  selection  without  violating  the
rules, if any.

18.   The scheme of the working of the Rules in the  Department  shows  that
right from 1979, the Department has been making  direct  recruitment   after
due selection and by applying the 1979 Rules which rules have been  extended
from time to time to subsequent  recruitments,  services  were  regularized.
Validity of the scheme of these recruitments is  not  under  challenge.   In
such circumstances, when the rules provide that  such  ad  hoc  appointments
have to be regularized and seniority counted from the date  of  appointment,
the writ petitioner could not be deprived of the past  service  rendered  by
him from 12th June, 1985 till the date of regularization.  It is not a  case
of appointments made without due selection or  without  vacancy  or  without
qualification or in violation of rules.  The larger Bench failed to  observe
that the appointment of the writ petitioner was not dehors the rules nor  by
way of stop gap arrangement.  The rules  had  the  effect  of  treating  the
appointment as a regular appointment from initial date of appointment.    In
these  circumstances,  the  principle  laid  down  in  K.C.  Joshi  was  not
applicable.  It is not a case where service rendered  is  either  fortuitous
or against rules or by way of stop gap arrangement.  Applying the  principle
laid down in Direct Recruit Class II Engineering Officers' Association,  the
writ  petitioner  is  entitled  to  count  service  from  12th  June,  1985.
Moreover, the department has allowed the benefit of past  service  to  other
similarly placed incumbents as observed in the judgment giving rise  to  the
appeal of
the department.

19.   Accordingly, we are unable to approve the view  taken  by  the  larger
Bench to the extent it proceeds on the assumption that past service  of  the
writ petitioner was by way of  stop  gap  arrangement  or  contrary  to  the
rules.

20.   We, therefore, direct the State to  redetermine  the  seniority  after
hearing the affected parties within six  months.   It  is  made  clear  that
benefit of redetermination of seniority  at  this  stage  will  not  disturb
holding of posts by any incumbent and except for benefit  in  pension  other
benefits to which the writ petitioner may be found entitled  will  be  given
only on notional basis.





21.   The appeal of the writ petitioner is accordingly allowed to the  above
extent and appeal of the State is accordingly dismissed.



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

                               ...........................................J.
                                                   [ ADARSH KUMAR GOEL ]
NEW DELHI
APRIL 7, 2015



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[1]    1990 (2) SCC 715
[2]    1993 (3) SCC 371
[3]    1992 Supp.(1) SCC 272
[4]    2000 (8) SCC 25