it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to the appellant-Company in pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act, ‘tea’ had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit. It is also pertinent to note that the respondent-Authorities have rightly held that the appellant was not in the business of ‘manufacturing’ tea but was merely blending and packing tea, which does not amount to ‘manufacturing’ of tea. We find substance in the said stand taken by the respondent-Authorities as the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429.

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2806 of 2009





M/s Dugar Tea Industries Pvt. Ltd ...Appellant


               Versus

State of Assam & Ors.            ...Respondents


                                    WITH
                        CIVIL APPEAL NO.3246 OF 2009
                     CIVIL APPEAL NOS.3247-3253 OF 2009
                     CIVIL APPEAL NOS.3254-3262 OF 2009
                     CIVIL APPEAL NOS.3264-3266 OF 2009



                      J U D G M E N T



ANIL R. DAVE, J.




1. Being aggrieved by the common judgment  delivered  by  the  Gauhati  High
Court on 14th November, 2006, the appellants have approached this  Court  by
way of these appeals.

2.    The facts giving rise to the present litigation, in  a  nutshell,  are
as under:

      As the legal issues involved in  all  of  the  aforesaid  appeals  are
same, for the purpose of convenience, we have taken facts from Civil  Appeal
No.2806 of 2009.

3.    The appellant is a private limited company engaged in the business  of
blending and packing of tea.  After some  modernisation,  it  commenced  its
production in April, 1988.  The  case  of  the  appellant-Company  was  with
regard to availing sales tax concession declared  by  the  respondent-State.
Before going through the relevant provisions, we may record  the  fact  that
the respondent-State had notified its Industrial Policy in 1982,  which  had
thereafter been revised in 1986.  The said Policy had been framed so  as  to
increase economic and industrial growth in the State.

4.    In pursuance of the aforestated Policy, the  respondent-State  enacted
Assam Industries (Sales Tax Concession) Act, 1987 (hereinafter  referred  to
as “the Act”).  By  virtue  of  the  provisions  of  the  Act,  certain  new
industries, subject to certain conditions, were to be given  exemption  from
payment of sales tax but the exemption was not to be  given  in  respect  of
certain commodities.

5.    The case of the  appellant-Company  was  that  the  Company  was  made
eligible for certain concessions  in  pursuance  of  the  Industrial  Policy
framed by the government, which had been declared in  1982,  but  ultimately
the benefits had been denied to the company under the Act.

6.    The reason for not giving the benefits under the  Act,  as  stated  by
the respondent- Authorities, was that ‘tea’ was a raw material,  in  respect
of which no exemption was to be given and the appellant-Company  was  merely
blending and packing tea and was not having any manufacturing activity.

7.    As the sales tax exemption had been denied to  the  appellant-Company,
the appellant-Company filed petitions  before  the  High  Court  challenging
denial of the tax exemption but the petitions had been rejected by a  common
Judgment dated 9th September, 2003 and being aggrieved by the  rejection  of
the petitions, the appellant-Company had  also  filed  writ  appeals,  which
have been dismissed by a common Judgment dated 14th November, 2006, and  the
said judgment has been challenged in these appeals.

8.     The  learned  counsel  appearing  for  the  appellant-Company  mainly
submitted  that  the  appellant-Company  had  been  given   an   eligibility
certificate dated  7th  July,  1988  under  the  1982  Incentive  Scheme  of
Government of Assam as amended in 1986. By virtue of  the  said  certificate
dated 7th July, 1988, exemption in respect of payment of sales tax had  been
granted to the appellant-Company w.e.f. 14th  April,  1988  to  13th  April,
1993, as the appellant- Company was  eligible  to  get  the  exemption  from
payment of sales tax under  the  1986  Incentive  Scheme  of  Government  of
Assam.

9.    The learned counsel  further  submitted  that  as  per  the  exemption
granted under the eligibility  certificate,  the  respondent-State  and  the
Sales Tax Authorities of the respondent-State were bound to  give  exemption
from payment of sales tax to the  appellant,  but  the  appellant  had  been
denied the  exemption,  which  was  neither  fair  nor  legal.   He  further
submitted that as  per  the  conditions  incorporated  in  the  scheme,  the
appellant-Company had already made  investments  and  had  already  employed
local persons of the State of Assam in service.  Having  complied  with  all
the  conditions,  the  eligibility  certificate  had  been  issued  to   the
appellant-Company and therefore,  the  respondent-Authorities  are  estopped
from denying the benefit which had been assured to it under the  eligibility
certificate dated  7th  July,  1988.   The  learned  counsel  cited  several
judgments to substantiate his case that once an assurance was given  to  the
appellant under  the  eligibility  certificate  that  the  appellant-Company
would be enjoying exemption under the 1986 Incentive  Scheme  of  Government
of Assam, the exemption could not have been  withdrawn  by  the  respondent-
Authorities.

10.   On the other  hand,  the  learned  counsel  appearing  for  the  State
Authorities supported the judgments delivered by the  learned  Single  Judge
as well as by the Division Bench of the High Court.

11.   The learned counsel  submitted  that  there  cannot  be  any  estoppel
against legal provisions.  He further submitted that as  per  Rule  2(f)  of
Assam Industries (Sales Tax Concession) Rules, 1988, ‘tea’ is  not  the  raw
material in respect of which exemption from payment of sales tax  is  to  be
granted.  In view of the aforestated statutory provision and in view of  the
fact that tea was the ‘raw material’ which was being used by the  appellant-
Company for the purpose of blending  and  packing,  the  appellant  was  not
entitled to any exemption.

12.   Moreover, he submitted that the appellant- Company  was  not  involved
in any manufacturing activity. It was merely blending and  packing  tea  and
blending as well as packing of tea was  not  a  manufacturing  activity  and
therefore, also the appellant was not entitled to  the  benefit  claimed  by
it.

13.   The  learned  counsel  thereafter  submitted  that  according  to  the
provisions of Section 4 of the  Act,  Certificate  of  Authorisation  should
have been procured by the appellant for availing the benefit under the  Act.
 Such a Certificate of Authorisation had never been issued to the appellant-
Company and therefore, the appellant was not entitled to  the  exemption  in
respect of payment of sales tax claimed by it.

14.   For the aforestated reasons, the learned counsel  submitted  that  the
appeals deserved to be dismissed.

15.   We have heard the learned counsel at length and  have  considered  the
relevant legal provisions and the  judgments  referred  to  by  the  learned
counsel.

16.   Upon perusal of the record and the law laid down by this Court in  the
light of the facts of the  case,  we  are  of  the  opinion  that  the  view
expressed by the Courts below cannot be said to be incorrect.

17.   Rule 2(f) of the Assam Industries (Sales Tax Concession)  Rules,  1986
reads as under:-

“2(f) ‘Raw material’ means any material or commodity capable of  being  used
for  manufacture  of  any  other  product  specified  in  any  authorisation
certificate as intended by the holder for use by him as raw material in  the
manufacture of goods in the State for sale by him but shall not include  the
following commodities namely :

tea, (b) coal, (c) liquefied petroleum gas, (d) plywood, (e) petrol,  diesel
oil and lubricants.”



    In view of the aforestated Rule, it is crystal clear that tea is not  to
be included in “raw material” and therefore, no exemption  could  have  been
claimed by the Appellant Company in respect of ‘tea’ as a raw  material  for
purchase as well as sale of tea.  It is also  pertinent  to  note  that  the
appellant had earlier preferred Civil Rule No.4162 of 1991 before  the  High
Court challenging validity of the  aforestated  Rule.   The  learned  Single
Judge, while rejecting the petition, vide  order  dated  17th  August,  1988
held that Rule 2(f) of the 1988 Rules was legal and valid and  the  plea  of
promissory estoppel raised by the appellant was also not accepted.   Against
the said judgment, no appeal was filed by the appellant and  therefore,  the
said issue had attained finality.

18.    Another  important  thing  is   with   regard   to   certificate   of
authorisation.

19.   It is an admitted fact that so as to avail the benefit as per  Section
4 of the Act, certificate of authorisation is  a  must.   The  said  Section
reads as under:

“4.   Certificate of authorisation –

(1) A person undertaking to manufacture in the State such goods, as  may  be
prescribed,  may  make  an  application  in  the  prescribed  form  to   the
prescribed authority and within the prescribed time  for  a  certificate  of
authorisation for the purposes of sub-section (1) of section 3.

(2)   If the authority to whom an application is made under sub-section  (1)
is satisfied that the application is in conformity with  the  provisions  of
the Act and the rules made there under it shall grant  to  the  applicant  a
certificate of authorisation in the prescribed form which shall specify  the
class or classes of goods for purposes of sub-section (1) of section  3  and
the period for which it shall remain valid.

(3)   A certificate  of  authorisation  granted  under  this  section  shall
remain valid for a period of five years  from  the  date  of  completion  of
effective steps for setting up the industrial unit in respect of  which  the
certificate is granted.

(4)   No certificate of authorisation shall  be  granted  under  sub-section
(2) except in respect of such raw materials as may be prescribed.

(5)   A certificate of authorisation granted under this section may:-

(a)   be amended by the authority granting it if he is satisfied  either  on
the application of the holder or, where no such application has  been  made,
after due notice to the holder, that by reason of the holder having  changed
the name, place or nature of his business or the class or classes  of  goods
bought, sold or manufactured by him or for any other reason the  certificate
of authorisation granted to him required to be amended; or

(b)   be cancelled by the authority  granting  it,  where  he  is  satisfied
after due notice to the holder that  the  holder  has  ceased  to  carry  on
business or for any other sufficient reason.”



20.   As stated hereinabove, it is an admitted fact that no  certificate  of
authorisation, as provided under the Act,  had  ever  been  granted  to  the
appellant-Company and therefore, in  our  opinion,  the  courts  below  were
absolutely right to the effect that the appellant was not  entitled  to  any
sales tax exemption.

21.   So far as the averments with regard to estoppel are concerned,  it  is
a settled legal position that there cannot  be  any  estoppel  against  law.
When there is a legal provision to the effect that when tea is used  as  raw
material, no tax exemption would be available under the  provisions  of  the
Act, none can claim tax  exemption  in  respect  of  sales  tax  payable  on
purchase or sale of tea.  It is true that  an  eligibility  certificate  had
been issued to the appellant-Company in  pursuance  of  the  1986  Incentive
Scheme of Government  of  Assam  but  when  the  said  Scheme  was  given  a
statutory form under the Act, ‘tea’ had been excluded  from  the  definition
of raw material and therefore, on the basis of the  eligibility  certificate
issued  under  the  1986  Incentive  Scheme  of  Government  of  Assam,  the
appellant cannot claim any benefit.

22.   It is also pertinent to  note  that  the  respondent-Authorities  have
rightly held that the appellant was not in the business  of  ‘manufacturing’
tea but was merely blending and  packing  tea,  which  does  not  amount  to
‘manufacturing’ of tea.  We find substance in the said stand  taken  by  the
respondent-Authorities as the said view has been fortified by a decision  of
this Court in Commissioner of Income Tax, Kerala v. Tara Agencies  2007  (6)
SCC 429.

23.   For the aforestated reasons assigned by  the  State  in  the  impugned
order passed as well as in the judgments delivered by  the  High  Court,  we
cannot find fault with the impugned judgment and  therefore,  these  appeals
deserve dismissal.

24.   The appeals are accordingly dismissed.  However,  there  shall  be  no
order as to costs.




................................J.
                                     (ANIL R. DAVE)



                              ................................J.
                                           (SHIVA        KIRTI        SINGH)

NEW DELHI;
OCTOBER 06, 2016.

The main ground was cruelty, as serious allegations were levelled about the moral character of the Appellant to the effect that he was having an extra- marital affair with a maid, named Kamla.- the Respondent would very often threaten the Appellant that she would commit suicide. In fact, on 2th July, 1995, she picked up a quarrel with the Appellant, went to the bathroom, locked the door from inside and poured kerosene on her body and attempted to commit suicide. On getting smell of kerosene coming from the bathroom, the Appellant, his elder brother and some of the neighbours broke open the door of the bathroom and prevented the Respondent wife from committing suicide. The aforestated facts were found to be sufficient by the learned Family Court for granting the Appellant a decree of divorce dated 17th November, 2001, after considering the evidence adduced by both the parties.= This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:- “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.” Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act. we firmly believe that there was no need to take a different view than the one taken by the trial Court. The behaviour of the Respondent wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquility and peace of mind. Such torture would adversely affect the life of the husband. It is also not in dispute that the Respondent wife had left the matrimonial house on 12th July, 1995 i.e. more than 20 years back. Though not on record, the learned counsel submitted that till today, the Respondent wife is not staying with the Appellant. The daughter of the Appellant and Respondent has also grown up and according to the learned counsel, she is working in an IT company. We have no reason to disbelieve the aforestated facts because with the passage of time, the daughter must have grown up and the separation of the Appellant and the wife must have also become normal for her and therefore, at this juncture it would not be proper to bring them together, especially when the Appellant husband was treated so cruelly by the Respondent wife. We, therefore, quash and set aside the impugned judgment delivered by the High Court. The decree of divorce dated 17th November, 2001 passed by the Principal Judge, Family Court, Bangalore in M.C. No.603 of 1995 is hereby restored.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3253 OF 2008



NARENDRA                            … APPELLANT


VERSUS



K. MEENA                          … RESPONDENT



                               J U D G M E N T



ANIL R. DAVE, J.



1.    This appeal has been filed by the Appellant husband, whose decree  for
divorce passed by the trial  Court  has  been  set  aside  by  the  impugned
judgment dated 8th March, 2006 passed by the  High  Court  of  Karnataka  at
Bangalore in Miscellaneous First Appeal No.171 of 2002 (FC).

  2.  The facts giving rise to the present appeal, in  a  nutshell,  are  as
under :

      The Respondent wife filed Miscellaneous  First  Appeal  under  Section
28(1) of the Hindu Marriage Act,  1955  (hereinafter  referred  to  as  “the
Act”) before the High Court as she was aggrieved by the judgment and  decree
dated 17th November, 2001, passed by  the  Principal  Judge,  Family  Court,
Bangalore in M.C. No.603 of 1995 under Section 13(1)(ia) of  the  Act  filed
by the Appellant husband seeking divorce.

3.    The  Appellant  husband  had  married  the  Respondent  wife  on  26th
February, 1992.  Out of the wedlock, a female child named Ranjitha was  born
on 13th November, 1993.  The case of the Appellant was that  the  Respondent
did not live  happily  with  the  Appellant  even  for  a  month  after  the
marriage.   The  reason  for  filing  the  divorce  petition  was  that  the
Respondent wife had become cruel because of  her  highly  suspicious  nature
and she used to level absolutely frivolous but serious  allegations  against
him regarding his character and more particularly  about  his  extra-marital
relationship.  Behaviour of the Respondent wife made life of  the  Appellant
husband miserable and it became impossible for the Appellant  to  stay  with
the Respondent  for  the  aforestated  reasons.   Moreover,  the  Respondent
wanted the Appellant to leave his parents and other family  members  and  to
get separated from them so that the Respondent can live  independently;  and
in that event it would become more torturous for the Appellant to stay  only
with the Respondent wife with  her  such  nature  and  behaviour.  The  main
ground was cruelty, as serious allegations were  levelled  about  the  moral
character of the Appellant to the  effect  that  he  was  having  an  extra-
marital affair with a maid, named Kamla.  Another important  allegation  was
that the Respondent would very often threaten the Appellant that  she  would
commit suicide.  In fact, on 2th July, 1995, she picked up  a  quarrel  with
the Appellant, went to the bathroom, locked the door from inside and  poured
kerosene on her body and attempted to commit suicide.  On getting  smell  of
kerosene coming from the bathroom, the  Appellant,  his  elder  brother  and
some of the neighbours broke open the door of  the  bathroom  and  prevented
the Respondent wife from committing suicide.   The  aforestated  facts  were
found to be  sufficient  by  the  learned  Family  Court  for  granting  the
Appellant a decree of divorce dated 17th November, 2001,  after  considering
the evidence adduced by both the parties.

4.    Being aggrieved by the judgment  and  decree  of  divorce  dated  17th
November, 2001, the Respondent wife had  filed  Miscellaneous  First  Appeal
No.171 of 2002 (FC), which has been allowed by the High Court on 8th  March,
2006, whereby the decree of divorce dated 17th November, 2001 has  been  set
aside.  Being aggrieved by the judgment and order passed by the High  Court,
the Appellant has filed this appeal.

5.    The learned counsel appearing for the Respondent was not present  when
the appeal was called out for hearing.  The matter was  kept  back  but  for
the whole day, the learned counsel for the Respondent did not appear.   Even
on an earlier occasion on 31st March, 2016, when the appeal was called  out,
the learned counsel appearing for the Respondent wife was  not  present  and
therefore, the Court  had  heard  the  learned  counsel  appearing  for  the
Appellant.

6.    The learned counsel appearing for the  Appellant  submitted  that  the
High Court had committed a grave error in  the  process  of  re-appreciating
the evidence and by setting aside the decree of divorce  granted  in  favour
of the Appellant.  He submitted that there was no  reason  to  believe  that
there was no cruelty on the part of the  Respondent  wife.   He  highlighted
the observations made by the Family Court and took us through the  evidence,
which was recorded before the Family Court.  He drew our  attention  to  the
depositions made by independent witnesses, neighbours of the Appellant,  who
had rescued the Respondent wife from committing  suicide  by  breaking  open
the door of the bathroom when the Respondent was on the verge of  committing
suicide by pouring kerosene on herself and by lighting a match  stick.   Our
attention was also drawn to  the  fact  that  serious  allegations  levelled
against the character of the  Appellant  in  relation  to  an  extra-marital
affair with a maid were absolutely baseless as no maid named Kamla had  ever
worked in the  house  of  the  Appellant.   It  was  also  stated  that  the
Respondent wife was insisting  the  Appellant  to  get  separated  from  his
family members and on 12th July, 1995  i.e.  the  date  of  the  attempt  to
commit  suicide,  the  Respondent  wife  deserted  the  Appellant   husband.
According to the learned counsel, the facts recorded by the  learned  Family
Court after appreciating the evidence  were  sufficient  to  show  that  the
Appellant was entitled to a decree of  divorce  as  per  the  provisions  of
Section 13(1)(ia) of the Act.

7.    We have carefully gone through the evidence  adduced  by  the  parties
before the trial Court and we tried to find out  as  to  why  the  appellate
Court had taken a different view than the one  taken  by  the  Family  Court
i.e. the trial Court.

8.    The High Court came to the conclusion that there was no cruelty  meted
out to the Appellant, which would enable him to get a decree of divorce,  as
per the  provisions  of  the  Act.   The  allegations  with  regard  to  the
character of the Appellant and the extra-marital affair  with  a  maid  were
taken very seriously by the Family Court, but the High Court  did  not  give
much importance to the false allegations made.  The constant  persuasion  by
the Respondent  for  getting  separated  from  the  family  members  of  the
Appellant and constraining the Appellant to live separately  and  only  with
her was also not considered to be of any importance by the High  Court.   No
importance was given to the incident with regard to  an  attempt  to  commit
suicide made by the Respondent wife.  On the contrary, it appears  that  the
High Court found some justification in the request made  by  the  Respondent
to live separately from the family of the Appellant husband.   According  to
the High Court, the trial Court did not appreciate  the  evidence  properly.
For the aforestated reasons, the High Court reversed  the  findings  arrived
at by the learned Family Court and set aside the decree of divorce.

9.    We do not agree with the manner  in  which  the  High  Court  has  re-
appreciated the evidence and has come to a different conclusion.

10.   With regard to the allegations of cruelty levelled by  the  Appellant,
we are in agreement with the findings of the trial  Court.   First  of  all,
let us look at the incident with regard to an attempt to commit  suicide  by
the Respondent.   Upon  perusal  of  the  evidence  of  the  witnesses,  the
findings arrived at by the trial Court to the  effect  that  the  Respondent
wife had locked herself in the bathroom and had poured kerosene  on  herself
so  as  to  commit  suicide,  are  not  in  dispute.   Fortunately  for  the
Appellant, because of the noise and disturbance, even the neighbours of  the
Appellant rushed to help and the door of the bathroom was  broken  open  and
the Respondent was saved.  Had she been successful in her attempt to  commit
suicide, then one can  foresee  the  consequences  and  the  plight  of  the
Appellant because in that  event  the  Appellant  would  have  been  put  to
immense difficulties because of the legal provisions.  We  feel  that  there
was no fault on the part of the Appellant nor was there any reason  for  the
Respondent wife to make an attempt to  commit  suicide.   No  husband  would
ever be comfortable with or tolerate such an act by  his  wife  and  if  the
wife succeeds in committing  suicide,  then  one  can  imagine  how  a  poor
husband would get entangled into the clutches of law, which would  virtually
ruin his sanity, peace of mind, career and probably his  entire  life.   The
mere idea with regard to facing  legal  consequences  would  put  a  husband
under tremendous stress.  The thought itself is distressing.  Such a  mental
cruelty could not have  been  taken  lightly  by  the  High  Court.  In  our
opinion, only this one event was sufficient for  the  Appellant  husband  to
get a decree of divorce on the ground of cruelty.  It  is  needless  to  add
that such threats  or  acts  constitute  cruelty.   Our  aforesaid  view  is
fortified by a decision of this Court in  the  case  of  Pankaj  Mahajan  v.
Dimple @ Kajal (2011) 12 SCC  1,  wherein  it  has  been  held  that  giving
repeated threats to commit suicide amounts to cruelty.

11.   The Respondent wife wanted the Appellant to  get  separated  from  his
family.  The evidence shows that the family was  virtually  maintained  from
the income of the  Appellant  husband.  It  is  not  a  common  practice  or
desirable culture for a Hindu  son  in  India  to  get  separated  from  the
parents upon getting married at the instance of the  wife,  especially  when
the son is the only earning member in the family.  A  son,  brought  up  and
given education by his parents, has a moral and  legal  obligation  to  take
care and maintain the parents, when they  become  old  and  when  they  have
either no income or have a meagre income.  In  India,  generally  people  do
not subscribe to  the  western  thought,  where,  upon  getting  married  or
attaining majority, the son gets  separated  from  the  family.   In  normal
circumstances, a wife is expected to be  with  the  family  of  the  husband
after the marriage.  She becomes integral to and forms part  of  the  family
of the husband and normally  without  any  justifiable  strong  reason,  she
would never insist that her husband should get  separated  from  the  family
and live only with her.  In the  instant  case,  upon  appreciation  of  the
evidence, the trial Court came to the conclusion that  merely  for  monetary
considerations, the Respondent wife wanted  to  get  her  husband  separated
from his family.  The averment of the Respondent was to the effect that  the
income of the Appellant was also spent  for  maintaining  his  family.   The
said  grievance  of  the  Respondent  is  absolutely  unjustified.   A   son
maintaining his parents is absolutely normal in Indian  culture  and  ethos.
There is no other reason for which the Respondent wanted  the  Appellant  to
be separated from the family - the sole reason was to enjoy  the  income  of
the Appellant.  Unfortunately, the  High  Court  considered  this  to  be  a
justifiable reason. In the opinion  of  the  High  Court,  the  wife  had  a
legitimate expectation to see that the income of her  husband  is  used  for
her and not for the family members of the Respondent  husband.   We  do  not
see any reason to justify the said  view  of  the  High  Court.   As  stated
hereinabove, in a Hindu society, it is a pious  obligation  of  the  son  to
maintain the parents.  If a wife  makes  an  attempt  to  deviate  from  the
normal practice and normal  custom  of  the  society,  she  must  have  some
justifiable  reason  for  that  and  in  this  case,  we  do  not  find  any
justifiable reason, except monetary consideration of  the  Respondent  wife.
In our opinion, normally, no husband would tolerate this and  no  son  would
like to be separated from his old parents and other family members, who  are
also dependent upon his income.  The persistent  effort  of  the  Respondent
wife to constrain the Appellant to be separated from  the  family  would  be
torturous for the husband and in our opinion,  the  trial  Court  was  right
when it came to the conclusion that this constitutes an  act  of  ‘cruelty’.


12.   With regard to the allegations  about  an  extra-marital  affair  with
maid named Kamla, the re-appreciation of the  evidence  by  the  High  Court
does not appear to be correct.  There is sufficient evidence to  the  effect
that there was  no  maid  named  Kamla  working  at  the  residence  of  the
Appellant.  Some averment with regard to some relative has been relied  upon
by the High Court to come to a conclusion that there was a lady named  Kamla
but the High Court has  ignored  the  fact  that  the  Respondent  wife  had
levelled  allegations  with  regard  to  an  extra-marital  affair  of   the
Appellant with the maid and not with someone else.  Even if there  was  some
relative named Kamla,  who  might  have  visited  the  Appellant,  there  is
nothing to substantiate the allegations  levelled  by  the  Respondent  with
regard to an extra-marital affair.  True, it is very difficult to  establish
such allegations but at the same time, it is equally true that to suffer  an
allegation pertaining to one’s character of having an  extra-marital  affair
is quite torturous for any person – be it a husband  or  a  wife.   We  have
carefully gone through the evidence but  we  could  not  find  any  reliable
evidence to show  that  the  Appellant  had  an  extra-marital  affair  with
someone.  Except for the baseless and reckless  allegations,  there  is  not
even the slightest evidence that would  suggest  that  there  was  something
like an affair of the Appellant with the maid named by the  Respondent.   We
consider levelling of  absolutely  false  allegations  and  that  too,  with
regard to an extra-marital life to be quite serious and that can  surely  be
a cause for metal cruelty.

13.   This Court, in the  case  of  Vijaykumar  Ramchandra  Bhate  v.  Neela
Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:-

“7.   The question that requires to be answered first is as to  whether  the
averments, accusations and  character  assassination  of  the  wife  by  the
appellant husband in the written statement constitutes  mental  cruelty  for
sustaining the claim for divorce under Section 13(1)(i-a) of  the  Act.  The
position of law in this regard has come to  be  well  settled  and  declared
that  levelling  disgusting   accusations   of   unchastity   and   indecent
familiarity with a person outside wedlock and  allegations  of  extramarital
relationship is a  grave  assault  on  the  character,  honour,  reputation,
status as well as the health of the wife. Such aspersions of  perfidiousness
attributed to the wife, viewed in the context of  an  educated  Indian  wife
and judged by Indian conditions and standards would amount to worst form  of
insult and cruelty, sufficient by itself to  substantiate  cruelty  in  law,
warranting the claim of the wife being allowed. That such  allegations  made
in the written statement or suggested in the course of  examination  and  by
way of cross-examination satisfy the requirement of law has also come to  be
firmly laid down by this Court. On going through the  relevant  portions  of
such allegations, we find that no exception could be taken to  the  findings
recorded by the Family Court as well as the High Court. We  find  that  they
are of such quality, magnitude and consequence  as  to  cause  mental  pain,
agony and suffering amounting to the  reformulated  concept  of  cruelty  in
matrimonial law causing profound and  lasting  disruption  and  driving  the
wife to  feel  deeply  hurt  and  reasonably  apprehend  that  it  would  be
dangerous for her to live with a husband who was taunting her like that  and
rendered the maintenance of matrimonial home impossible.”


14.   Applying the said ratio to the facts of this case, we are inclined  to
hold that the unsubstantiated allegations levelled by  the  Respondent  wife
and the threats and attempt to commit suicide  by  her  amounted  to  mental
cruelty and therefore, the marriage deserves to be dissolved by a decree  of
divorce on the ground stated in Section 13(1)(ia) of the Act.

15.   Taking an overall  view  of  the  entire  evidence  and  the  judgment
delivered by the trial Court, we firmly believe that there was  no  need  to
take a different view than the one taken by the trial Court.  The  behaviour
of the Respondent wife appears to be terrifying  and  horrible.   One  would
find it difficult to live with such a person with tranquility and  peace  of
mind.  Such torture would adversely affect the life of the husband.   It  is
also not in dispute that the Respondent wife had left the matrimonial  house
on 12th July, 1995 i.e. more than 20 years back.  Though not on record,  the
learned counsel submitted that  till  today,  the  Respondent  wife  is  not
staying with the Appellant.  The daughter of the  Appellant  and  Respondent
has also grown up and according to the learned counsel, she  is  working  in
an IT company.  We have  no  reason  to  disbelieve  the  aforestated  facts
because with the passage of time, the daughter must have grown  up  and  the
separation of the Appellant and the wife must have also  become  normal  for
her and therefore, at this juncture it would not be  proper  to  bring  them
together, especially when the Appellant husband was treated  so  cruelly  by
the Respondent wife.

16.   We, therefore, quash and set aside the impugned judgment delivered  by
the High Court.  The decree of divorce dated 17th November, 2001  passed  by
the Principal Judge, Family Court, Bangalore  in  M.C.  No.603  of  1995  is
hereby restored.

17.   The appeal is, accordingly, allowed with no order as to costs.



                                                             .…………………………….J.
                                        (ANIL R. DAVE)



                                                             ……………………………..J.
                               (L. NAGESWARA RAO)
NEW DELHI
OCTOBER 06, 2016.

Section 302 read with Section 149 of the Indian Penal Code and convicted by the trial court, have approached this Court after their conviction was upheld by the High Cour= Once it is found that these witnesses, who are eye witnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worth of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same.- Chowkidar, who was the first informant, was not examined by the prosecution, it would be apt to reproduce the following discussion in the impugned judgment of the High Court, with which we fully agree: “10...It is worth pointing out that in cross examining the IO the defence has not elicited either the number and time of the station diary entry nor the time when the choukidar allegedly gave some information whose substance was entered in some station diary entry. The name of the Choukidar has also not been elicited. This was an extraction or revelation of a fact which had never been put before the material witnesses like the informant and the injured witnesses who had been examined before the IO. Even the limited information given by the IO is cross examination is insufficient and it was not possible for the prosecution to produce the alleged station diary entry whose number, date and time was not elicited from the IO. It was also not possible to examine the Choukidar who had allegedly given the information because his name was also not elicited. The prosecution is thus being blamed for suppressing the contentions of a station diary entry whose details are absolutely vague and missing and the defence never requisitioned any station diary entry to be produced during trial. Further, the IO has stated in the same paragraph that Fardbeyan of the informant is mentioned in the case diary systematically as they took place. This piece of evidence from the IO is sufficient to take away all the force from the submission of the defence that information by Choukidar was the earliest version of the occurrence. In such circumstances, no adverse inference can be drawn against the prosecution on the unacceptable plea of the defence that there was an earlier version of the occurrence which has been suppressed.” We, thus, do not find any merit in this appeal, which is accordingly dismissed.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1266 OF 2009


|KAMTA YADAV & ORS.                         |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF BIHAR                             |.....RESPONDENT(S)           |



                               J U D G M E N T

A.K. SIKRI, J.
                 Five appellants, who were tried for offence  under  Section
302 read with Section 149 of the Indian Penal  Code  and  convicted  by  the
trial court, have approached this Court after their  conviction  was  upheld
by the High Court as well vide impugned judgment dated September  28,  2007.
During the pendency of this appeal,  one  of  the  accused  persons,  namely
Hiralal Yadav, expired and the appeal qua him stood  abated.   The  validity
of the judgment  of  the  High  Court  in  respect  of  the  remaining  four
appellants is the subject matter of this appeal.


To trace out the prosecution case in brief, it  may  be  mentioned  that  on
November 16, 1991, at about 9:00 am, Ajodhaya Yadav,  armed  with  a  lathi,
and  other  four  appellants  armed  with  bhala,  were  ploughing  a  field
belonging to the informant while Kashinath Yadav  exhorted  others  to  kill
the informant Ramji Yadav.  Hiralal Yadav caused a bleeding  injury  on  the
head of the informant with a bhala.  The informant  in  order  to  save  his
life shouted on  which  his  uncle  Ramayan  Yadav  (deceased),  his  father
Dharichhan Yadav (PW-1) and his brother Bir Bahadur Yadav  (PW-3),  came  in
order to save him.  Hiralal Yadav then caused a bhala injury  on  the  chest
and abdomen of the deceased who fell  down  and  became  unconscious.   PW-1
also fell down as he was assaulted with bhala by Kashinath Yadav  and  Kamta
Yadav causing injuries on his abdomen, back of the body and hand.  PW-3  was
also assaulted by Ajodhaya Yadav with lathi and  also  by  Bhim  Yadav  with
bhala on head  causing  bleeding  injury.   On  the  shouts  raised  by  the
informant and his party, Dudhnath Yadav (PW-2) and Jagdish  Yadav  came  and
saved them.  Other persons from the village also  came  and  thereafter  the
accused persons stopped assaulting  and  fled  away.   The  reason  for  the
occurrence was said to be a dispute over the  land  and  litigation  in  the
past which had resulted in filing of a court case also.

First Information Report (FIR)  was  registered  after  recording  fardbayan
(Exhibit – 4) and this FIR was proved during trial as  Exhibit  –  5.   This
FIR shows that the police station was situated very close to  the  place  of
occurrence, i.e. about 300  yards  on  the  west.   It  further  shows  that
formally Section 302 was not added by the Investigating Officer (PW-9).   By
way of correction in the FIR,  this  provision  was  added  after  obtaining
permission for the same from the Court of the  Magistrate  on  November  16,
1991 itself by informing that uncle of the informant,  i.e.  Ramayan  Yadav,
died on way to Bihia Hospital.   The  Investigating  Officer  inspected  the
place of occurrence; prepared Inquest Report (Exhibit – 3);  sent  the  body
for postmortem examination and  obtained  postmortem  report;  recorded  the
statement of witnesses, including further statement of  the  informant;  and
submitted  charge-sheet  for  the  offence  under  Section  302  and   other
provisions of the IPC.  After taking cognizance,  the  Magistrate  committed
the case to the Court of Sessions where  charges  were  framed  for  various
offences, including Section 302 IPC.  The appellants  pleaded  'Not  Guilty'
to the charges.  After the trial, accused persons were found guilty  by  the
trial court for offence under Section 302 IPC and were awarded  imprisonment
for life.

The judgments of the Courts below reflect that the prosecution, in order  to
prove its case, examined nine witnesses.  PW-1,  Dharichhan  Yadav,  is  the
father of the informant.  He also sustained injuries and claimed  to  be  an
eye witness to the occurrence, as mentioned  in  the  FIR  itself.   He  has
fully supported the prosecution case.  PW-2, Dudhnath Yadav, is the  brother
of PW-1, who came on the shouts raised, and has claimed  to  have  seen  the
occurrence.  PW-3, Bir Bahadur Yadav, is the son  of  the  deceased  Ramayan
Yadav.  Like PW-1, he is also an injured eye witness to  the  incident.   He
has fully supported the prosecution case.  Sonia Devi  (PW-4)  and  Munesari
Devi (PW-5) are mother and wife respectively of  the  informant.   PW-4  has
claimed to have gone to the place of occurrence on hearing  the  shouts  and
also claimed to have seen the occurrence, whereas PW-5 stated that  she  was
on the roof of her house and from there she saw  the  entire  occurrence  as
the place of incident was close to her house.  Ramji  Yadav  (PW-6)  is  the
informant, who  also  suffered  injuries  and  as  claimed  by  him  in  the
fardbayan as well as in his deposition in  the  Court,  he  saw  the  entire
occurrence from beginning till end.  Dr. Rajesh Kumar Singh (PW-7) held  the
autopsy on the dead body of the deceased.   He  has  proved  the  postmortem
examination report as  Exhibit  –  1.   According  to  him,  the  postmortem
examination was held on  November  17,  1991  at  8:00  am.   He  found  the
following eight injuries on the dead body of the deceased:
“(i)  Incised wound with clean cut edges 1” x 2/10”x whole thickness of  the
pina of right ear.

(ii)  Incised wound 1½” x ½” x 2/10” on the upper portion of the right arm.

(iii)  Incised wound 1” x 2/10” x 2/10” on the back of the scalp left side.

(iv)  Incised wound 1/10” x 1/10” x 1/10” on the front of right shoulder.

(v)  Incised wound 1” x 1/2”x abdominal cavity deep on  the  right  side  of
abdomen upper portion.

(vi)  Swelling 2” x 2” on the left side of back of scalp.

(vii)  Penetrating wound with cut edges 1” x ½x chest  cavity  deep  on  the
right side of chest.  2½” away from midline almost in the middle.

(viii)  Incised wound ¾” x 1/10”x skin deep on the middle  finger  of  right
hand.”

      In his opinion, all the injuries were  ante  mortem  caused  by  sharp
cutting pointed instruments and the time elapsed since death was  within  36
hours of postmortem examination.  He found the cause of death to  be  injury
No. (vii), a penetrating wound 1” x ½” chest cavity deep on the  right  side
of chest.  He has further opined  that  the  injuries  could  be  caused  by
bhala.  However, injury No.  (vi)  could  be  caused  by  lathi  also.   The
stomach of the deceased contained undigested food material and  the  bladder
was empty.
PW-8 examined the injuries of PW-1, PW-3 and PW-6 on November  16,  1991  at
Bihia Block Hospital between 12:30 pm to 1:15 pm.  He found six injuries  on
the person of PW-1.  He found all the injuries simple in nature  but  injury
No.2 and 3 were penetrating wounds on chest, right side of  back  and  lower
part of right arm above elbow joint.  On PW-3, he found  two  injuries,  one
was incised wound over front portion of head 3”  x  ½”  skin  deep  and  the
other was penetrating wound on the right side of abdomen ½” x ¼” x ¾”.   The
injuries were found to be simple.  On PW-6, the informant,  he  found  three
injuries.  One was a lacerated wound on the left  side  of  head  ¼”  x  ¼”x
scalp deep upto bone, the second injury was also  lacerated  wound  on  left
side near middle of head 1” x ¼” x 1/6”.  The third injury  was  a  swelling
3” x 2” on left buttock.  The injuries were simple.  Some  of  the  injuries
on PW-1 and PW-3 were by sharp weapons like bhala, but in case of PW-6,  the
doctor opined that the injuries  were  by  hard  and  blunt  substance  like
lathi.  The age of injuries in respect of all the three  injured  was  found
to be within six hours.  The  injury  reports  of  the  three  injured  were
proved by PW-8 as Exhibits – 2, 2/1 and 2/2 respectively.

The investigation was done by Surajdeo Ram  (PW-9),  Investigating  Officer,
as  pointed  out  earlier.   During  inspection,  he  found  the  place   of
occurrence to be a field belongiong to the informant in  which  potato  crop
had already been planted.  He found that potato crop marks of  three  rounds
of ploughing were visible.  He also seized  blood  stained  earth  from  the
place of occurrence.  He has stated in his cross-examination that report  of
the occurrence was first received by him from Chowkidar and on that basis  a
Station Diary Entry was  made  but  he  did  not  record  the  statement  of
Chowkidar.  He has admitted  that  he  has  written  the  Case  Diary  in  a
systematic manner, as the events unfolded, and the  fardbayan  is  mentioned
in paragraph 1 of the  Case  Diary.  He  has  also  stated  that  after  the
fardbayan, further statement of the informant was recorded and the place  of
occurrence was inspected and only  thereafter  formal  FIR  was  instituted.
According to his statement in  the  cross-examination,  in  respect  of  the
earlier statements made by PWs 1, 2 and 3 under Section 161 of the  Code  of
Criminal Procedure, 1973, there was virtually no  difference  in  what  they
had stated regarding the occurrence in Court.  As far as PW-4 is  concerned,
she has deposed that she had not told him in clear  terms,  in  her  earlier
statement, as to which of the accused persons were having bhala and who  was
ploughing and that  Hiralal  had  assaulted  on  head  with  bhala  and  the
deceased had received injury on head with bhala.  She had  also  not  stated
on what part her husband (PW-1) had received injuries by bhala and that  the
accused persons fled away on arrival of  Jagdish  and  Dudhnath  Yadav.   No
contradiction was sought in respect of the statement of PW-5.

Various contentions were raised before the High Court with an  endeavour  to
find loopholes in the judgment of the trial court  regarding  conviction  of
the appellants.  It was argued that the time of offence had not been  proved
by the prosecution beyond reasonable doubt because the  Doctor  had  opined,
while conducting the postmortem examination on November  17,  1991  at  8:00
am, that the death  of  the  deceased  appeared  within  36  hours,  whereas
according to the prosecution case, death had taken place  within  23  hours.
It was also argued that the nature of injuries found  on  the  deceased  and
injured persons did not support the prosecution  case.   Another  submission
was that though the Investigating Officer (PW-9) had admitted in his  cross-
examination that  information  of  the  occurrence  was  first  given  by  a
Chowkidar, which was incorporated in his Station Diary Entry  as  well,  FIR
was not registered on the basis of said information and that  Chowkidar  was
not even produced as a prosecution witness.

All the aforesaid arguments have been rejected by the High Court as  without
any substance.  It is not necessary to reproduce the discussion of the  High
Court on these arguments as before us the learned counsel pressed only  last
of the aforesaid arguments, in addition to couple of other submissions.

In the first instance, the learned counsel drew our  attention  to  the  FIR
and referred to the following column regarding the place of incident:
|Place of incident & distance|
|from the Police Station &   |
|Side                        |
|2.                          |
|Villate Tiar, about 300 sq. |
|yds. West from Police       |
|Station                     |
|Circle No. 4                |

      It was submitted that when the place of  incident  was  300  sq.  yds.
away, it was impossible for the witnesses to see the occurrence clearly  and
identify the accused persons.
                 This argument appears to be an argument of  desperation  as
the place of occurrence is shown to be at a distance of 300  sq.  yds.  from
the Police Station in West direction.  It is nowhere stated that  those  who
were eye witnesses to the incident had seen the occurrence from  a  distance
of 300 sq. yds.  When confronted with this  position,  the  learned  counsel
accepted the inaccuracy of his argument.

It was further argued that no independent witnesses  were  examined  in  the
present case.  However, in the cross-examination or  otherwise  it  has  not
even been brought out by the defence that there were other  persons  at  the
scene of occurrence who were independent persons.  The learned counsel  also
could not point out as to how, in these  circumstances,  non-examination  of
independent persons acted to the prejudice of the appellants.

We have already narrated the deposition of the  witnesses  in  brief.  There
are six eye witnesses and three of them are injured eye witnesses, which  is
a weighty factor to show the actual  presence  of  these  witnesses  at  the
scene of occurrence.  Moreover, the credibility and trustworthiness  of  all
these eye witnesses could not be shaken by the accused persons.  Once it  is
found that these witnesses, who are eye witnesses,  were  present  and  they
have truthfully narrated the incidence as it happened and their  depositions
are worth of credence, conviction can be based on their testimonies even  if
they  were  related  to  the  deceased.    The   only   requirement,   while
scrutinising the interested witnesses, is to examine their depositions  with
greater caution and deeper scrutiny is needed, which exercise has been  done
by both the courts below.   In  fact,  when  the  learned  counsel  for  the
appellants was confronted with the aforesaid factual and legal position,  he
could not even provide any answer to the same.

Coming to the last submission that Chowkidar, who was the  first  informant,
was not examined by the prosecution,  it  would  be  apt  to  reproduce  the
following discussion in the impugned judgment of the High Court, with  which
we fully agree:
“10...It is worth pointing out that in cross examining the  IO  the  defence
has not elicited either the number and time of the station diary  entry  nor
the time when the choukidar allegedly gave some information whose  substance
was entered in some station diary entry.  The  name  of  the  Choukidar  has
also not been elicited.  This was an extraction  or  revelation  of  a  fact
which had never been put before the material witnesses  like  the  informant
and the injured witnesses who had been examined  before  the  IO.  Even  the
limited information given by the IO is  cross  examination  is  insufficient
and it was not possible for the prosecution to produce the  alleged  station
diary entry whose number, date and time was not elicited from  the  IO.   It
was also not possible to examine the Choukidar who had allegedly  given  the
information because his name was also  not  elicited.   The  prosecution  is
thus being blamed for suppressing the contentions of a station  diary  entry
whose details are  absolutely  vague  and  missing  and  the  defence  never
requisitioned any station diary entry to be produced during trial.  Further,
the IO has stated in the same paragraph that Fardbeyan of the  informant  is
mentioned in the case diary systematically as they took place.   This  piece
of evidence from the IO is sufficient to take away all the  force  from  the
submission of the defence that information by  Choukidar  was  the  earliest
version of the occurrence.  In such circumstances, no adverse inference  can
be drawn against the prosecution on the unacceptable  plea  of  the  defence
that there  was  an  earlier  version  of  the  occurrence  which  has  been
suppressed.”

We, thus, do not find  any  merit  in  this  appeal,  which  is  accordingly
dismissed.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                               (N.V. RAMANA)

NEW DELHI;
OCTOBER 06, 2016.

The Appellants participated in the selection which was initially for 38 posts which later increased to 74 posts. They could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts. In view of there being no fault on the part of the Appellants, we examined whether we could exercise our judicial discretion to direct their appointments. We realise that any such direction given by us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. It will be useful to reproduce from Judicial Discretion (1989) by Aharon Barak which is as follows: “Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several.” As we have held that the selection pursuant to the advertisement dated 19.09.2009 should be confined only to posts that were advertised, the additional posts that were created after the expiry of the recruitment year shall be filled up by issuance of an advertisement afresh. In view of the shortage of Assistant Prosecuting Officers in the State of Uttarakhand, we direct the authorities to expedite the process of selection.

                                                         [pic]NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 8334 of 2013


Anurag Kumar Singh & Ors.
                                                           .... Appellant(s)
                                   Versus
State of Uttarakhand & Ors.

                                                             ….Respondent(s)

                                    With

                        CIVIL APPEAL No. 8335 of 2013

Shri Sharwan Kumar Tripathi & Ors.
                                                           .... Appellant(s)
                                   Versus
State of Uttarakhand & Ors.

                                                             ….Respondent(s)


                               J U D G M E N T


L. NAGESWARA RAO, J.

      These Appeals are filed against the judgment  of  the  High  Court  of
Uttarakhand at Nainital by which a direction  was  issued  to  restrict  the
selection of Assistant Prosecuting Officers only  to  the  number  of  posts
that were advertised.
An advertisement was issued by the  Uttarakhand  Public  Service  Commission
(hereinafter referred to as  ‘the  Second  Respondent’)  on  19.09.2009  for
appointment to the posts of Assistant Prosecuting Officers.  The  number  of
posts notified were 38.  It was mentioned  in  the  advertisement  that  the
number of posts may be increased or decreased by  the  State  Government.  A
preliminary examination was contemplated in case there were a  large  number
of applications.  It was mentioned in the advertisement that  the  ‘year  of
recruitment’ was a period of 12 months commencing from the 1st day  of  July
of the calendar year.
As a large number of  candidates  applied,  a  preliminary  examination  was
conducted on 31.10.2010, the result of which  was  declared  on  04.02.2011.
The Third Respondent who was an applicant filed  an  application  under  the
Right to Information Act, 2005  seeking  information  about  the  number  of
posts for which the preliminary  examination  was  conducted.    The  Second
Respondent responded stating that the number  of  vacancies  for  which  the
selection was being  held  was  74.   The  Third  Respondent  filed  a  Writ
Petition in the High Court of Uttarakhand at Nainital for a  direction  that
only 38 posts of Assistant Prosecuting Officers  which  were  advertised  on
19.09.2009 should be filled up.
A counter was filed by the  First  Respondent  stating  that  37  additional
posts of Assistant Prosecuting Officers  were  created  by  an  order  dated
25.08.2009.  It was also stated  in  the  counter  that  a  requisition  for
additional 36 posts of  Assistant  Prosecuting  Officers  was  sent  to  the
Second Respondent.  It was further stated that there was acute  shortage  of
Assistant Prosecuting Officers and hence there was need for  filling  up  of
74 vacant posts of Assistant Prosecuting Officers without delay.
The High Court allowed the Writ Petition.  The High Court  relied  on  Uttar
Pradesh Prosecuting Officers Service Rules, 1991  (hereinafter  referred  to
as ‘the Rules’) to hold that the selection pursuant to an advertisement  can
be only for clear vacancies and anticipated vacancies  but  not  for  future
vacancies.   Referring to the definition of ‘year  of  recruitment’  in  the
Rules, the High Court held that vacancies that arose between  1st  of  July,
2008 and 30th of June,  2009  alone  can  be  filled  up.   The  High  Court
directed that selection should be confined to only  38  posts  of  Assistant
Prosecuting Officers.  A further direction was given by the  High  Court  to
the  Second  Respondent  to  commence  the  process  of  selection  for  the
additional 36  vacancies  which  were  requisitioned  by  the  letter  dated
06.01.2011.
The  Appellants  would  have  been  selected  and  appointed  as   Assistant
Prosecuting Officers if the selection was for 74 posts.  They are  aggrieved
by the judgment of the High Court.  They have sought permission to file  the
above Appeals which was granted on 16.08.2012.  We heard      Mr.  Harin  P.
Raval and Ms. Meenakshi Arora, learned Senior  Counsels  appearing  for  the
Appellants  and  Mr.  Saurabh  Trivedi,  Counsel  appearing  for  the  First
Respondent.   Mr. Harin Raval submitted that there was  only  one  Assistant
Prosecuting Officer working in the State  of  Uttarakhand  on  the  date  of
advertisement dated 19.09.2009.  Mr. Raval took us through the  material  on
record to show that more than  38  posts  were  available  on  the  date  of
advertisement.  He referred to the  condition  in  the  advertisement  which
enabled the State Government to vary the  number  of  vacancies.    He  also
referred to the pleadings to contend that a  requisition  was  made  to  the
Second Respondent for filling up the additional 36 vacancies  as  well.   He
submitted that the High Court went  wrong  in  allowing  the  Writ  Petition
without taking into account the shortage of Assistant  Prosecuting  Officers
in the State of Uttarakhand.   Mr. Saurabh Trivedi,  counsel  appearing  for
the State supported the Appellants and sought  permission  to  fill  up  the
additional 36 vacancies.
Thirty seven candidates were declared  successful  for  being  appointed  as
Assistant Prosecuting Officers by a Notification  dated  26.06.2012.  It  is
stated in the written submission filed by the First Respondent that  31  out
of 37 candidates joined and were sent for training.  Two candidates  out  of
31 resigned and the  remaining  29  candidates  were  assigned  postings  as
Assistant Prosecuting Officers.
The recruitment to posts of Assistant Prosecuting Officers  is  governed  by
the Uttar Pradesh Prosecuting Officers Service  Rules,  1991.   Rule  3  (l)
defines ‘year of recruitment’ as a period of 12 months commencing  from  the
1st day of July of  calendar  year.   The  requisition  made  by  the  First
Respondent to the Second Respondent on 17.11.2008 was for  selection  of  38
Assistant Prosecuting Officers.  The  year  of  recruitment  for  conducting
selection would be between 1st July, 2008 and 30th June,  2009.   As  stated
earlier, only 38 posts were notified  in  the  advertisement.   As  per  the
advertisement the Government could vary the number of  posts  to  be  filled
up.  Such power could have been exercised by  the  Government  only  to  the
extent of posts that arose between 1st July, 2008 and 30th June, 2009.   The
Second Respondent filed a counter in this Court in which it was stated  that
the advertisement issued on 19.09.2009 was for 38  posts  and  that  it  was
only on 06.01.2011 that the Government intimated 36 additional posts  to  be
filled up. The letter dated 25.08.2009 of  the  Chief  Secretary,  State  of
Uttarakhand was relied upon by the Appellants  to  contend  that  additional
vacancies were created and they were available to be filled up.
It is clear from the pleadings  and  the  various  documents  filed  by  the
Appellants that no additional posts were created between 1st July, 2008  and
30th June, 2009.  It is significant that the Rules refer to the  recruitment
year.  It is a well-accepted principle of service law that only  the  number
of vacancies that are advertised can be filled  up.   If  the  advertisement
gives liberty to the Government to vary the  number  of  posts,  such  power
cannot be exercised for filling up future vacancies.   If  additional  posts
were created during the recruitment year i.e. between  1st  July,  2008  and
30th June, 2009, the Government could have directed  the  Second  Respondent
to include those posts also in the selection list that was made pursuant  to
the advertisement dated 19.09.2009.
This Court in Prem  Singh  and  Ors.  v.  Haryana  State  Electricity  Board
reported in (1996) 4 SCC 319 at paragraph 25 held as follows:
      “From the above discussion of the case-law it becomes clear  that  the
selection process by way of requisition and  advertisement  can  be  started
for clear vacancies and also for anticipated vacancies but  not  for  future
vacancies. If the requisition and advertisement are for a certain number  of
posts only the State cannot make more appointments then the number of  posts
advertised, even though it  might  have  prepared  a  select  list  of  more
candidates.  The  State  can  deviate  from  the  advertisement   and   make
appointments   on   posts   falling   vacant   thereafter   in   exceptional
circumstances only or in an emergent situation and  that  too  by  taking  a
policy decision in that behalf. Even when filling  up  of  more  posts  than
advertised is challenged the Court may  not,  while  exercising  its  extra-
ordinary jurisdiction, invalidate the excess appointments and may mould  the
relief in such a manner as to strike a just balance between the interest  of
the State and the  interest  of  persons  seeking  public  employment.  What
relief should be granted in such cases  would  depend  upon  the  facts  and
circumstances of each case.”

It was further held by this Court that  strictly  speaking  the  authorities
were  not  justified  in  making  appointments  to  posts  more  than  those
advertised.  This Court also found that only  actual  vacancies  were  taken
into account without considering the anticipated vacancies that were  likely
to arise due to retirement, etc.  As appointments were already made,  taking
into account the peculiar facts and circumstances, this Court  approved  the
appointments beyond those advertised only to the extent of  vacancies  which
arose because of death and retirement,  etc.   The  appointments  that  were
made to future vacancies were declared as invalid.
Pursuant to the  directions  issued  by  the  High  Court  in  the  impugned
judgment, 37 persons were declared selected for  appointment.   In  view  of
the interim order passed by this Court in the above  Appeals,  selection  to
the remaining posts  was  not  held.  Seven  years  have  passed  after  the
advertisement was issued on 19.09.2009.  A large  number  of  persons  would
have become eligible for selection to  the  post  of  Assistant  Prosecuting
Officers.  They have a right to be  considered  for  appointment  guaranteed
under Articles 14 and 16 of the Constitution of India.  There  would  be  an
infraction of such right if the additional posts are  not  filled  up  by  a
fresh selection.   The attempt made by the First and Second  Respondents  to
fill up the additional posts is contrary to  the  Rules.   After  a  careful
consideration of the matter, we are  of  the  opinion  that  the  Appellants
cannot be selected and appointed to  the  additional  posts  that  were  not
advertised on 19.09.2009 and were created  after  the  relevant  recruitment
year ending on 30.06.2009.
We have examined the possibility of granting relief  to  the  Appellants  by
taking into  account  the  facts  and  circumstances  of  this  case.    The
Appellants participated in the selection which was initially  for  38  posts
which later increased to 74 posts.  They could not be appointed due  to  the
judgment of the High Court which directed the selection to be  only  for  38
posts.   In view of there being no fault on the part of the  Appellants,  we
examined whether we could exercise our judicial discretion to  direct  their
appointments.   We realise that any such direction given  by  us  for  their
appointments would be contrary to the Rules.   Judicial  discretion  can  be
exercised by a Court only  when  there  are  two  or  more  possible  lawful
solutions.   In any event, Courts cannot give any direction contrary to  the
Statute or Rules made thereunder in  exercise  of  judicial  discretion.  It
will be useful to reproduce from Judicial Discretion (1989) by Aharon  Barak
which is as follows:
“Discretion  assumes  the   freedom   to   choose   among   several   lawful
alternatives.  Therefore, discretion does not exist when there  is  but  one
lawful option.  In this situation, the judge  is  required  to  select  that
option and has no freedom of choice.   No  discretion  is  involved  in  the
choice between a lawful act and an unlawful act.  The judge must choose  the
lawful  act,  and  he  is  precluded  from  choosing   the   unlawful   act.
Discretion, on the other hand, assumes the lack of an obligation  to  choose
one particular possibility among several.”

As we have held that the  selection  pursuant  to  the  advertisement  dated
19.09.2009 should be confined  only  to  posts  that  were  advertised,  the
additional posts that were created after the expiry of the recruitment  year
shall be filled up by issuance of an advertisement afresh.  In view  of  the
shortage of Assistant Prosecuting Officers in the State of  Uttarakhand,  we
direct the authorities to expedite the process of selection.
For the aforementioned reasons, the judgment of the  High  Court  is  upheld
and the Civil Appeals are dismissed.


                      .…............................J.
                                [SHIVA KIRTI SINGH]



                                          ................................J.
                             [L. NAGESWARA RAO]

New Delhi,
October 5, 2016

Under Section 2(10) of the Act, the Governing Body of the College shall select for appointment from the names recommended by the Commission. Thus, the Governing Body has the right to select the candidates in the order of preference. But since two posts were available, the Commission ought to have recommended two plus two candidates. The High Court rightly observed that the Commission had violated the mandatory provision of Section 2(9). Since there was violation of the statutory provisions by the second respondent-Commission and going by the submission made on behalf of the Commission before the High Court, the name of the first respondent is to be considered for the second post available. She should not be made to suffer injustice for no fault of her own.The first respondent’s suitability for appointment is not in doubt; instead of recommending the first respondent to the second post, the Commission was not justified in recommending her name as second preference for the first post and stopping at that. The reasons are not far to seek. In the second post available in the appellant-L.P. Shahi College of Labour and Social Welfare, Dr. Ramdeo Prasad Sharma (appellant in the connected matter i.e. in the appeal arising out of SLP (C) No. 978 of 2012) has already been working temporarily in the Department of Labour and Social Welfare. Even though the said Ramdeo Prasad Sharma applied for the post, his name was not recommended. Be it noted that the said Dr. Ramdeo Prasad Sharma has not challenged his non-selection by the Commission. In violation of Section 57A of the Bihar State Universities Act, appellant College continued Dr. Ramdeo Prasad Sharma in the said post which is in violation of the provisions of Bihar State Universities Act. Continuance of Ramdeo Prasad Sharma in the post was improper, arbitrary and in disregard of the statutory provisions. The appellant-Ramdeo Prasad Sharma is said to have retired at the age of superannuation in January, 2016 and that post in the Department of Labour and Social Welfare is presently vacant. Since there was violation of Section 2 (9) of the Bihar College Service Commission Act, 1976 and that of Section 57A of Bihar State Universities Act, the High Court has rightly allowed the writ petition filed by the first respondent, inter alia, issuing directions as stated above. We do not find any reason warranting interference with impugned judgment.

                                            NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.  10010     OF 2016
                  (Arising out of SLP(C) No. 32203 of 2011)


GOVERNING BODY,
L.P. SHAHI COLLEGE, PATNA AND ANR.                         Appellants

                                   Versus

SMT. SEEMA MISHRA & ORS.                               Respondents

                                    With

                   CIVIL APPEAL NO.  10011         OF 2016
                   (Arising out of SLP(C) No. 978 of 2012)

DR. RAMDEO PRASAD SHARMA                              Appellant

                                   Versus

SMT. SEEMA MISHRA & ORS.                                 Respondents


                                  O R D E R


R. BANUMATHI, J.

      Leave granted.
2.    These two appeals have been filed against the judgment  of  the  Patna
High Court dated 30.06.2011 in LPA No.364 of 2008 arising  out  of  C.W.J.C.
No.8004 of 2000 wherein Division  Bench  of  the  High  Court  directed  the
appellant-L.P. Shahi College, Patna to appoint the first respondent  in  the
College.  One appeal is by the College and the other appeal  by  Dr.  Ramdeo
Prasad Sharma who was appointed as a Lecturer in the  Department  of  Labour
and Social Welfare of the appellant-College on  temporary  basis,  on  usual
scale of pay and other allowances. These two appeals  shall  stand  disposed
by this common order. For convenience, we narrate the facts from the  appeal
arising out of SLP(C) No.32203 of 2011.
3.    Brief facts leading to the filing of these appeals are  as  under:  In
the year 1994, the erstwhile Bihar College  Service  Commission  [for  short
‘the Commission’] had issued an advertisement inviting applications for  the
large number of teaching posts in  different  colleges  of  undivided  Bihar
including two posts in the Department of Labour and Social  Welfare  of  the
appellant-College. Respondent No. 1 had submitted her application on one  of
the posts advertised for teaching in the Department  of  Labour  and  Social
Welfare. The erstwhile Commission recommended two names  viz.,  Dr.  Siyaram
Sharma and Smt. Seema Mishra against the two advertised posts  of  lecturers
in the Labour and Social Welfare Department  in  the  appellant-College  and
communicated the  same  vide  letter  dated  15.06.1999  to  the  appellant-
College.
4.    According to the appellants, two persons viz., Dr. Siyaram Sharma  and
Smt. Seema Mishra had been recommended against one post and in  exercise  of
its right under Section 2(10) of Bihar College Service Commission Act,  1976
(for short ‘the Act’), the appellant-College appointed  Dr.  Siyaram  Sharma
and respondent No.1 was denied appointment. Being aggrieved  by  the  denial
of appointment, respondent No.1 filed a Writ Petition bearing  No.  8004  of
2000 before the High Court.
5.    The  learned  Single  Judge  held  that  the  Commission  intended  to
recommend the two names against two  posts,  but  the  aforesaid  letter  of
recommendation was inartistically worded. The learned Single Judge  directed
that the first respondent be appointed to the second  post  of  Lecturer  in
the Department of Labour and Social Welfare with effect from the  date  when
Dr. Siyaram Sharma had joined the  post,  with  notional  benefits.  It  was
further directed that the first respondent shall  not  be  entitled  to  the
arrears of salary or any other monetary benefits till she  joins  the  post;
however she will be entitled to the  raised  salary  with  added  increments
which would have fallen due to her from the date Dr. Siyaram  Sharma  joined
till the date she joins.  Aggrieved by  the  order  of  the  learned  Single
Judge, the appellant-College went before the  Division  Bench  of  the  High
Court by way of intra-court appeal. The Division Bench upholding  the  order
of the Learned Single Judge, held  that  the  Commission  had  violated  the
provision of sub-Section (9) of Section 2 of the Act and had failed  in  its
duty in not recommending the names of persons for the second post which  was
advertised and was available.  The Division Bench, inter alia, affirmed  the
other directions of the Single Judge.
6.    Heard learned counsel for the parties at length.
7.    Learned counsel for the appellants contended that  after  interviewing
the candidates for selection to the above posts, the Commission  recommended
the names of Dr. Siyaram Sharma-First and Smt. Seema Mishra-Second  for  the
first post in the aforesaid Department of  the  appellant-College,  and  the
Commission  also  issued  a  letter  to   this   effect   dated   15.06.1999
specifically mentioning that, the College shall appoint  any  one  from  the
names recommended by  the  Commission  with  the  condition  that  the  said
appointment shall be approved by the University.  It was submitted that  the
Commission actually failed in its duty in  not  recommending  the  names  of
persons for the second post and according to the appellant, it is  erroneous
to construe that first  respondent’s  name  should  be  considered  for  the
second available post.  It was further submitted that the interpretation  of
the Single Judge that “it appears that the Commission intended to  recommend
the two names against the two posts” was not only an  error  of  record  but
was also against  the  Statute  i.e.  Section  2(9)  of  the  Act.   It  was
submitted that without appreciating  the  aforesaid  position  of  law,  the
Division Bench erred in  dismissing  the  appeal  filed  by  the  appellant-
College
8.    Per contra, the learned counsel for  the  first  respondent  submitted
that as per Section 2(9)  of  the  Act,  the  Commission  was  to  give  its
recommendation  for  both  the  vacant  posts,  however,  due  to  error  of
communication, the letter dated 15.06.1999 was so worded  that  it  appeared
that the two names recommended were given  in  order  of  preference  for  a
single  post.  It  was  submitted  that  actually  the  name  of  the  first
respondent was recommended for the second permanent, vacant  and  advertised
post and upon proper appreciation of the facts  and  circumstances  and  the
submissions of the counsel for the Commission, the High  Court  has  rightly
directed the appellant-College to consider the name of the first  respondent
for appointment to the second post available.
9.    We have carefully considered the rival contentions,  and  perused  the
impugned judgment and material on record.
10.   Section 57A of the Bihar State Universities Act, 1976,  provides  that
appointment of teachers of affiliated colleges not maintained by  the  State
Government, shall be made by the Governing Body  on  the  recommendation  of
the College Service Commission. Admittedly, there were two vacancies in  the
Department of Labour and Social Welfare in the appellant-College  for  which
advertisement was issued.  First respondent was recommended only  after  the
selection process.  Second respondent-Commission had recommended  two  names
vide its letter dated 15.06.1999 and the same reads as under:-
      “…
                      Bihar College Service Commission,
                                    Patna
                       Boring Canal Road, Patna-800001

Letter No.593 Confid./BCSC Patna,

                              Dated 15.06.1999
From
      Secretary,
      Bihar College Service Commission, Patna
To,
      The Secretary
      Governing Body,

Sub: Appointment of Lecturer in the Dept.

In reference to your letter No….. dated….. I have been  directed  to  inform
that for the post of Lecturer in Labour  &  Social  Welfare  Dept.  of  your
college,  advertisement  was  made  by  the  Commission  vide  Advertisement
No.315/94.  After holding the interview of the candidates,  this  commission
recommends the names of following candidates in the order of preference  for
appointment on the post of Lecturer provided  affiliation  for  the  current
session is obtained.

 First Post:     1. Dr. Siyaram Sharma-First
            2. Smt. Seema Mishra-Second”


Contention of  appellant  is  that  as  per  the  above  communication,  the
Commission recommended two persons for the first post,  one  of  them  viz.,
Dr. Siyaram Sharma was appointed and since there was no  recommendation  for
the second post, no appointment was made to the second post.
11.   As per the provisions of the Act, the Commission is required  to  make
recommendations of two persons for every post,  arranged  in  the  order  of
preference, out of which the Governing  Body  of  the  College  is  to  make
appointments and no person whose name is not recommended by  the  Commission
can be appointed by the Governing Body.  This  will  be  evident  from  sub-
sections (9) and (10) of Section 2 of the Act, which read as under:-
“Section 2
……
(9) The Commission shall recommend for appointment to every post of  teacher
names of two persons arranged in order of preference and considered  by  the
Commission to be the best qualified therefor.  The recommendation  shall  be
valid for one year from the date of the recommendation by the Commission.

(10) In making any such  appointment  the  Governing  Body  of  the  college
shall,  within  three  months  from  the  date  of  the   receipt   of   the
recommendation under sub-section (9), make its selection out  of  the  names
recommended by the Commission, and in no case shall Governing  Body  appoint
a person who is not recommended by the Commission.”

Since two posts were advertised  for  the  appellant-College,  in  terms  of
Section 2(9) of the Act, it was mandatory on the part of the  Commission  to
recommend two plus two candidates. But the Commission recommended  only  two
candidates for the first post.  The  second  respondent-Commission  has  not
followed the mandatory provision of Section 2(9) in  recommending  two  plus
two candidates for the two posts of lecturers advertised for the  appellant-
College.
12.   The writ petition filed by the first respondent in the year  2000  was
disposed on 02.11.2007. After referring to  the  Commission’s  communication
dated 15.06.1999,  the  learned  Single  Judge  observed  “the  Commission’s
letter of recommendation was inartistically worded.  It appears to  me  that
the Commission intended to recommend the two names against the  two  posts”.
Pointing out that the first respondent’s suitability was not  in  doubt  and
that she has been deprived of her appointment for  no  fault  of  hers,  the
learned  Single  Judge  allowed  the  writ  petition,  inter  alia,  issuing
directions as aforesaid.
13.   Before the Division Bench, Mr.  Yugul  Prasad,  counsel  appearing  on
behalf of the Commission submitted that  an  error  had  crept  in,  in  the
recommendation of the Commission. After referring to  this  submission,  the
Division Bench observed as under:
“…When the post is available the Commission was asked to rectify such  error
and in most of the cases the Commission has explained such  error  and  made
statement before this Hon’ble Court with regard to the  appointment  of  the
respondent-petitioner...”

Having said so, after referring  to  the  communication  of  the  Commission
dated 15.06.1999,  the Division Bench took the view that  the  name  of  Dr.
Siyaram Sharma was recommended for the first  post and  the  name  of  first
respondent was recommended for the second post.  The  communication  of  the
Commission dated 15.06.1999 clearly states that the first respondent’s  name
was recommended as second preference for the first post.
14.   Under Section 2(10) of the Act, the  Governing  Body  of  the  College
shall select for appointment from the names recommended by  the  Commission.
Thus, the Governing Body has the right  to  select  the  candidates  in  the
order of preference. But since two  posts  were  available,  the  Commission
ought to have recommended two plus two candidates. The  High  Court  rightly
observed that  the  Commission  had  violated  the  mandatory  provision  of
Section 2(9).  Since there was violation of the statutory provisions by  the
second respondent-Commission and going by the submission made on  behalf  of
the Commission before the High Court, the name of the  first  respondent  is
to be considered for the second post available.  She should not be  made  to
suffer injustice for no fault of her own.
15.   The first respondent’s suitability for appointment is  not  in  doubt;
instead of recommending  the  first  respondent  to  the  second  post,  the
Commission was not justified in recommending her name as  second  preference
for the first post and stopping at that.  The reasons are not far  to  seek.
In the second post available in the appellant-L.P. Shahi College  of  Labour
and Social Welfare, Dr. Ramdeo Prasad Sharma  (appellant  in  the  connected
matter i.e. in the appeal arising out of  SLP  (C)  No.  978  of  2012)  has
already been working temporarily in the  Department  of  Labour  and  Social
Welfare.  Even though the said Ramdeo Prasad Sharma applied  for  the  post,
his name was not recommended.  Be it noted that the said Dr.  Ramdeo  Prasad
Sharma has not challenged his non-selection by the Commission. In  violation
of Section 57A of  the  Bihar  State  Universities  Act,  appellant  College
continued Dr. Ramdeo Prasad Sharma in the said post which  is  in  violation
of the provisions of Bihar State Universities  Act.  Continuance  of  Ramdeo
Prasad Sharma in the post was improper, arbitrary and in  disregard  of  the
statutory provisions. The appellant-Ramdeo Prasad Sharma  is  said  to  have
retired at the age of superannuation in January, 2016 and that post  in  the
Department of Labour and Social Welfare is presently vacant.
16.   Since there was violation of  Section  2  (9)  of  the  Bihar  College
Service Commission Act,  1976  and  that  of  Section  57A  of  Bihar  State
Universities Act, the High Court  has  rightly  allowed  the  writ  petition
filed by the first respondent, inter  alia,  issuing  directions  as  stated
above. We do not find  any  reason  warranting  interference  with  impugned
judgment.
17.   In the result, both the appeals are dismissed.


                                                              ..……………………….J.
        [SHIVA KIRTI SINGH]


                                   ………………………..J.
        [R. BANUMATHI]
New Delhi;
October 05, 2016