Infructuous by efflux of time = When the Department having continued the appellant and granted him promotion and confirmation, It cannot be said that the appellant committed any concealment or mis­representation.= appellant has been continuing on his post for the last twenty six years and even after dismissal of writ petition of Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed. The appellant has been promoted on next higher post and working on the next higher post as on date. Learned Single Judge has not correctly appreciated the issues as noticed and discussed above. The Division Bench rested its opinion on one issue without taking into consideration subsequent events and the fact that writ petition was dismissed as infructuous by efflux of time.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9220 OF 2019
(ARISING OUT OF SLP(CIVIL) NO. 7505 OF 2018)
RANA PRATAP SINGH     … APPELLANT(S)
VERSUS
VITTIYA EVAM LEKHA ADHIKARI,
DISTRICT BASIC EDUCATION
OFFICER AND ORS.          … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
1. This   appeal   has   been   filed   against   the
Division   Bench   judgment   of   Allahabad   High   Court
dated 06.02.2018 in Special Appeal No.432 of 2012
by which judgment the Special Appeal filed by the
appellant   questioning   the   judgment   of   learned
1 of 39
Single   Judge   dated   02.02.2012   in   writ   petition
No.15408 of 1993 has been dismissed.
2. Brief facts of the case necessary to be noted
for deciding this appeal are: ­
One   Shiv   Kumar   Rai   was   working   as   Junior
Accounts   Clerk   in   the   office   of   Finance   and
Accounts   Officer,   Office   of   District   Basic
Education Officer, respondent No.1. Shri Shiv
Kumar Rai was promoted as Assistant Accountant
giving rise to a vacancy in the post of Junior
Accounts Clerk. The respondent No.1 called for
names from the Employment Exchange, Azamgarh.
The Employment Exchange forwarded the list of
twelve candidates to the respondent No.1. The
Selection   Committee   was   constituted   in
accordance with the Statutory Rules namely The
Subordinate   Offices   Ministerial   Staff(Direct
Recruitment)   Rules,   1985,   to   hold   the
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selection   on   the   vacant   post   of   Junior
Accounts   Clerk.   The   name   of   petitioner   was
also included in the list of twelve candidates
forwarded   by   Employment   Exchange,   Azamgarh.
The   Selection   Committee   interviewed   the
candidates   on   16.08.1989   but   the   said
selection was cancelled by the respondent No.1
and   fresh   process   was   initiated   for   holding
selection.   An   advertisement   was   published   by
District Basic Education Officer, Azamgarh in
Daily   News   Paper   “Dainik   Devvrat”   dated
05.12.1990   calling   for   application   from
candidates   for   a   vacant   post   of   Junior
Accounts   Clerk.   Candidates   were   called   to
appear for interview on 20.12.1990. By letter
dated 07.12.1990, the respondent No.1 wrote to
District   Employment   Officer,   Azamgarh
requesting the Employment Officer to intimate
at his level the twelve candidates whose names
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were forwarded for the vacant post of Junior
Accounts   Clerk   to   appear   for   interview   on
20.12.1990.   Letter   also   mentioned   that   the
twelve   candidates   who   were   forwarded   by
Employment   Exchange   have   also   been   intimated
by   respondent   No.1   to   present   themselves
before   Selection   Committee   on   20.12.1990.   On
20.12.1990,   petitioner   along   with   other
candidates   appeared   before   the   Selection
Committee. The petitioner was selected by the
Selection   Committee   and   recommended   for
appointment   on   the   post   of   Junior   Accounts
Clerk.   Respondent   No.1   issued   an   appointment
Order   dated   21.12.1990   to   the   petitioner
appointing him on the post of Junior Accounts
Clerk.   Order   futher   mentioned   that   the
appointment   is   temporary.   In   pursuance   of
appointment Order dated 21.12.1990, petitioner
joined   on   22.12.1990.   By   Order   dated
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11.11.1992, the promotion of Shiv Kumar Rai as
Assistant   Accountant   was   cancelled   by
respondent   No.1.   On   same   day,   consequential
letter   dated   11.11.1992   was   also   issued
terminating the appointment of the petitioner
due to Shiv Kumar Rai having been reverted to
his   Original   post   of   Junior   Accounts   Clerk.
Shiv   Kumar   Rai   filed   a   W.P.No.44384   of   1992
challenging   order   dated   11.11.1992.    Learned
Single   Judge   of   the   High   Court   vide   order
dated   27.11.1992   stayed   the   Order   dated
11.11.1992 for a period of three months. The
petitioner   also   filed   a   writ   petition
challenging   the   order   dated   11.11.1992.
Petitioner being not aware of the order dated
27.11.1992   could   not   point   out   to   the   High
Court about the stay of the Order of reversion
passed   of   Shiv   Kumar   Rai.   Hence,   his   writ
petition   was   dismissed   by   the   High   Court   on
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04.12.1992.   While   dismissing   the   writ
petition,   High   Court   also   observed   that
petitioner's   claim   may   be   considered   on   the
post of Junior Accounts Clerk which fell due
to promotion of Ram Sinhasan at whose instance
the promotion of Shiv Kumar Rai was cancelled.
Respondent No.1 issued order dated 01.01.1993,
consequent to passing of interim order of the
High Court staying the reversion order dated
11.11.1992 of Shiv Kumar Rai re­appointing the
petitioner   on   the   post   of   Junior   Accounts
Clerk   till   27.02.1993.   The   interim   order
passed   in   writ   petition   No.44384   of   1992   of
Shiv   Kumar   Rai   was   continued   by   order   dated
09.04.1993 which directed:
"The   interim   order   dated
27.11.1992   is   continued   and   the
petitioner   will   be   paid   salary
regularly." 
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3. An   order   dated   27.02.1993   was   issued   by
respondent No.1 informing that since petitioner's
re­appointment was on the post of Junior Accounts
Clerk   was   upto   27.02.1993,   hence   he   should   hand
over his charge in the afternoon of 27.02.1993 to
one Shri Mohd. Vasama Ansari.
4. Writ   Petition   No.15408   of   1993   was   filed   by
the   Petitioner   challenging   the   letter   dated
27.02.1993   which   letter   was   stayed   by   the   High
Court on 29.04.1993 by passing following order:­
"Until   further   order   the
operation   of   the   impugned   order
dated   27.02.1993   shall   remain
stayed."
5. The re­appointment of petitioner was continued
by the letter dated 18.05.1993. Shiv Kumar Rai by
virtue   of   the   interim   order   passed   in   his   writ
petition continued to work as Assistant Accountant
till   he   attained   the   age   of   Super­Annuation   on
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29.02.2008.   W.P.No.44384   of   1992   filed   by   Shiv
Kumar Rai became infructuous due to efflux of time
and was dismissed on 15.09.2001. The order dated
15.09.2001   dismissing   the   writ   petition   of   Shiv
Kumar Rai is as follows:­
"15.09.2001
Hon'ble R.P.Misra,J.
This   writ   petition   has   been
listed   in   the   group   of   such
cases,   which   may   have   become
infructuous   due   to   efflux   of
time. No one turns up to press it
either.
The   writ   petition   is,
accordingly,   dismissed   but
without cost.
Sd/­”
6. Shiv   Kumar   Rai   having   been   promoted   as
Assistant   Accountant,   he   never   returned   to   his
original post till superannuation. The petitioner
continued to work on the post of Junior Accounts
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Clerk. The petitioner was given first promotional
increment   in   the   service   after   completion   of
fourteen   years   on   22.12.2004.   Second   promotional
upgradation was given after completion of eighteen
years   of   service   on   22.12.2008   and   order   dated
13.01.2011   was   issued   by   respondent   No.1   in   the
above regard. On 02.02.2012, the writ petition of
petitioner   being   W.P.No.15408   of   1993   was
dismissed.
7. Learned Counsel for the appellant submits that
learned   Single   Judge   while   dismissing   the   writ
petition   on   02.02.2012   has   made   observation   that
appointment   of   the   appellant   was   made   without
following   the   procedure   known   to   law   which
observation was neither correct nor was based on
material   on   record.   Learned   counsel   for   the
appellant submits that his appointment was made by
duly   constituted   Selection   Committee   as   per   1985
9 of 39
Rules and after calling names from the Employment
Exchange,   Azamgarh,   who   forwarded   twelve   names,
which included name of the appellant. There was no
challenge to the appointment of the appellant at
any point of time nor appointment was questioned
by anyone.
8. The   writ   petition   was   filed   challenging   the
consequential   order   dated   11.11.1992   which   was
issued in consequence of cancelling the promotion
of   Shiv   Kumar   Rai   on   the   post   of   Assistant
Accountant by which he was reverted on the post of
Junior   Accounts   Clerk   on   which   appellant   was
appointed.   The   issue   in   the   writ   petition   was
entirely   different   and   was   only   with   regard   to
correctness of the Order dated 11.11.1992.
9. Learned counsel further submits that learned
Single Judge erred in observing that on dismissal
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of   first   writ   petition   of   the   appellant   on
04.12.1992,   his   removal   became   final   and
subsequent   appointment   did   not   survive   for
consideration before the Court.
10. It   is   submitted   that   the   writ   petition
dismissed   on   04.12.1992   was   against   the   order
dated  11.11.1992   which   was   a  consequential   order
and   the   main   order   dated   11.11.1992   passed   with
respect   to   Shiv   Kumar   Rai   having   been   stayed   by
the   High   Court   on   27.11.1992,   the   consequential
order   with   regard   to   appellant   had   no   meaning,
hence, the dismissal of the said writ petition on
04.12.1992   shall   not   prejudice   the   claim   of   the
appellant.
11. It is further submitted that observation of
learned   Single   Judge   that   subsequent   appointment
of   the   appellant   dated   01.01.1993   being   limited
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till   27.03.1993,   thereafter   appellant   cannot
continue   is   also   erroneous.   The   Order   dated
01.01.1993   although   mentioned   re­appointment   but
in essence the order was only of reinstatement of
the   appellant   on   the   post   in   pursuance   of   his
earlier appointment dated 21.12.1992. There being
no   fresh   process   of   appointment,   there   was   no
question of any re­appointment. The learned Single
Judge also has not correctly understood the import
of the Order dated 01.01.1993.
12. The Division Bench based its judgment only on
the ground that writ petition filed by Shiv Kumar
Rai against the order dated 11.11.1993 having been
dismissed   on   15.09.2001,   his   reversion   shall
attain   finality,   Consequently   there   will   be   no
vacancy   on   the   post   of   Junior   Accounts   Clerk,
hence,   the   appellant   shall   have   no   right   to
continue on his post. The Division Bench did not
12 of 39
consider the fact that Writ petition filed by Shiv
Kumar Rai was dismissed as infructuous by efflux
of time and the dismissal of writ petition was not
on   merits.   It   is   a   fact   that   Shiv   Kumar   Rai
continued   to   work   on   his   post   of   Assistant
Accountant   and   retired   on   29.02.2008   by   holding
the   said   promotional   post.   Shiv   Kumar   Rai   never
came   back   on   his   post   of   Junior   Accounts   Clerk,
hence,   appellant's   continuance   on  post   of  Junior
Accounts Clerk cannot be taken away by dismissal
of writ petition of Shiv Kumar Rai.
13. Learned   counsel   for   the   appellant   submitted
that   appellant   has   been   in   service   for   twenty
seven   years.   In   the   meantime,   he   received
promotional   Pay   Scale   of   Assistant   Accountant,
Selection Grade. On the day when writ petition was
dismissed by learned Single Judge, he was working
in   the   grade   of   Assistant   Accountant.   The
13 of 39
appellant was also confirmed on his post of Junior
Accountant   w.e.f.   22.12.1993   and   Assistant
Accountant   w.e.f.   22.12.2007   by   order   dated
01.08.2012. All these facts were brought on record
by means of rejoinder affidavit filed in Special
Appeal which had not been taken into consideration
by Division Bench.
14. It is further submitted that in the year 2013
and   thereafter   complaints  were   filed   against   the
appellant which were duly enquired by and reports
were   submitted   to   Collector   on   27.04.2017   that
complaints   were   without   any   basis.   Further,   on
another complaint, report was submitted by Finance
and Accounts Officer, Primary Education, Azamgarh
dated 02.02.2017 that appointment of the appellant
was made after following due procedure of the law
and   the   appellant's   continuance   on   his   post   was
valid and in accordance with law.
14 of 39
15. Against the judgment of learned Single Judge
dated 02.02.2012 and Special Appeal No.432 of 2012
was   filed   by   the   petitioner.   By   an   order   dated
01.08.2012,   the   petitioner's   services   were
confirmed   on   the   post   of   Junior   Accounts   Clerk
w.e.f.   22.12.1993   and   on   the   post   of   Assistant
Accountant   w.e.f.   22.12.2007.   The   Special   Appeal
filed by the petitioner was dismissed by Division
Bench   on   06.02.2018,   aggrieved   against   which
judgment this appeal has been filed.
16. Learned   counsel   for   the   respondents   refuting
the   submission   of   the   learned   counsel   for   the
petitioner   contends   that   the   petitioner's
appointment   was   made   against   the   procedure
prescribed by law. No advertisement was issued on
05.12.1990   in   the   Daily   News   Paper   'Dainik
Devvrat'   as   claimed   by   the   petitioner.   The   writ
15 of 39
petition   was   dismissed   on   02.02.2012   and   there
being no interim order in the special Appeal, how
he continued and received salary after 02.02.2012,
is   not   explained.   The   petitioner   concealed   his
dismissal of writ petition from the Department and
is   not   entitled   for   any   relief   from   this   Court.
There has been several complaints received against
the petitioner with regard to which enquiries were
held   and   the   respondent   No.1   had   taken   action
against the petitioner.
17. We have considered the submissions of learned
counsel for the parties and perused the record.
18. From   submissions   of   learned   counsel   for   the
parties and materials on record, following points
arise for consideration in this appeal:­
I)   Whether   appointment   of   appellant   on   the
post   of   Junior   Accounts   Clerk   on   21.12.1990
was not validly made in accordance with law?
16 of 39
II)   Whether   by   dismissal   of   Writ   Petition
No.Nil of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to
the petitioner, appellant's right to continue
on his post shall come to an end?
III)   Whether   re­appointment   of   the   appellant
dated   01.01.1993   been   limited   only   till
27.02.1993   after   efflux   of   the   said   period
appellant's   right   to   continue   on   the   post
shall come to an end?
IV)   Whether   by   dismissal   of   W.P.No.44384   of
1992   ­   Shiv   Kumar   Rai   versus   Director   Basic
Education   and   others   on   15.09.2001   shall
result in terminating the vacancy on the post
of   Junior   Accounts   Clerk   on   which   appellant
was appointed and was working?
I) Whether appointment of appellant on the post of
Junior   Accounts   Clerk   on   21.12.1990   was   not
validly made in accordance with law?
19. The   copy   of   the   appointment   order   of   the
appellant has been placed on record as AnnexureP1,   which   mentions   that   appointment   of   the
appellant   has   been   made   on   he   being   selected   by
17 of 39
Selection Committee constituted as per provisions
of   “The   Subordinate   Offices   Ministerial   Staff
(Direct   Recruitment)   Rules,   1985”(hereinafter
referred   to   as   “1985   Rules”).   The   appointment
letter   contains   endorsement   to   the   District
Employment Officer. The material has been brought
on record that the respondent No.1 has written to
District   Employment   Officer   on   07.12.1990   in
reference to names of twelve candidates forwarded
by   the   Employment   Exchange   with   respect   to   the
post   of   Junior   Accounts   Clerk   which   clearly
indicate   that   names   were   sought   from   Employment
Exchange before holding selection. Rules 22 and 23
of   1985   Rules   provides   for   procedure   of
notification   of   vacancies  to   the   examination   and
procedure of selection. Rule 22 is as follows: ­
"Notification of Vacancies to the
Employment Exchange. ­
The   appointing   Authority   shall
determine the number of vacancies
to be filled during the course of
the year as also the vacancies to
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reserved   under   Rule   7.   The
vacancies   shall   be   notified   to
the   Employment   Exchange.   The
Appointing   Authority   may   also
invite   application   directly   from
the   person   who   have   their   names
registered   in   the   Employment
Exchange.   For   this   purpose,   the
Appointing   Authority   shall   issue
an advertisement in a local daily
news   paper   besides   pasting   a
notice for the same on the Notice
Board. All such application shall
be   placed   before   the   Selection
Committee.”
20. The   appellant's   case   is   that   apart   from
calling   names   from   the   Employment   Exchange,   the
respondent   No.1   had   also   published   an
Advertisement   on   05.12.1990   in   the   Daily   News
Paper   'Dainik   Devvrat'.   The   learned   counsel   for
the respondents has refuted the claim of appellant
of publication in the Daily News Paper. He submits
that   Editor   of   News   Paper   vide   his   letter   dated
21.08.2017 with regard to verification of alleged
19 of 39
advertisement has informed that it is not possible
to verify the same, it being a very old matter.
21. Learned   counsel   submits   that   there   was   no
publication   in   the   newspaper   and   the   claim   of
publication was only invented for the purpose of
this case.
22. Appellant has refuted the above submission of
the respondent and submits that newspaper has been
filed   before   the   High   Court   and   further   in   the
reports   which   were   submitted   with   regard   to
complaints   against   the   appellant,   it   was
specifically   mentioned   that   the   publication   was
made   in   the   News   Paper   'Dainik   Devvrat'   on
05.12.1992.
23. There   is   no   denial   on   the   part   of   the
respondents   that   the   names   were   called   from   the
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Employment   Exchange   by   the   appointing   authority
before conducting the selection and the Employment
Exchange had forwarded the twelve names which also
included the name of appellant. The appointment of
the   appellant   having   been   made   by   Selection
Committee constituted under Statutory Rules after
calling   the   names   from   Employment   Exchange,   the
appointment   cannot   be   said   to   have   been   made   in
disregard to the Statutory Rules.
24. More   so   in   the   present   case,   there   was   no
challenge to the appointment by any candidate nor
any   proceedings   were   initiated   by  the  appointing
authority   questioning   the   appointment   of   the
appellant.   The   first   writ   petition   was   filed   by
the appellant when consequent to reversion of Shiv
Kumar Rai on the post of Junior Accounts Clerk on
which   appellant   was   working,   his   services   were
terminated by order dated 11.11.1992.
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25. We,   thus,   conclude   that   appointment   of   the
appellant   cannot   be   said   to   have   been   made   in
disregard to the Rules and further, no proceedings
were   initiated   either   by   any   candidate   or   by
appointing   authority   questioning   the   appointment
of the appellant.
26. Learned   Single   Judge   without   taking   into
consideration   the   facts   of   constitution   of
Selection   Committee,   calling   the   names   from
Employment Exchange has made observations that no
procedure   known   to   law   namely   'Publication   of
Notification'   etc.   was   adopted   which   cannot   be
approved.   Without   having   full   aspect   of   the
matter,   no   such   observation   ought   to   have   been
made   by   learned   Single   Judge   more   so   when   the
appointment   was   not   questioned   either   by   any
candidate or by appointing authority by initiating
any process.
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II) Whether by dismissal of Writ Petition No.Nil
of   1992   on   04.12.1992   filed   against   the
consequential order dated 11.11.1992 issued to the
petitioner,   appellant's   right  to   continue  on   his
post shall come to an end?
27. Writ Petition No.Nil of 1992 was filed by the
appellant challenging the Order dated 11.11.1992.
On   11.11.1992,   two   orders   were   passed   by
respondent   No.1.   By   first  order   dated  11.11.1992
appointment(promotion)   of   Shiv   Kumar   Rai   was
cancelled   and   he   was   directed   to   take   charge   of
his   original   post   of   Junior   Accounts   Clerk.   In
consequence to above 11.11.1992 order with regard
to petitioner, following order was issued:­
" Accounts Officer, Office of
District Basic Education Officer,
Azamgarh
Order Number/Le.No./803­809/1992­93
Date: 11.11.1992
Termination of service
Consequent   to   reversion   of   Shri
Shiv   Kumar   Rai,   Assistant   Accounts,
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Lekha   Sangathan   Office,   District
Basic   Education   Officer,   Azamgarh   at
his   original   post   Junior   Accounts
Clerk,   the   purely   temporary   services
of   Shri   Rana   Pratap   Singh,   Junior
Accounts   Clerk   are   terminated   with
immediate   effect.   He   is   ordered   to
hand over the charge of his post to
Shri   Shiv   Kumar   Rai   with   immediate
effect.
Sd/­ illegible
Accounts Officer
Office of District Basic
Education Officer, Azamgarh
Endorsement   Number   account/803­
809/1992­93"
28. Both Shiv Kumar Rai and petitioner have filed
separate   writ   petitions   challenging   order   dated
11.11.1992.   In   writ   petition   No.44384   of   1992
filed by Shiv Kumar Rai, following interim order
was passed on 27.11.1992: ­
" ..Issue Notice
Learned   standing   counsel   prays
for and is granted one month time to
file   counter   affidavit.   Petitioner
will   have   thereafter   two   weeks   time
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for   filing   rejoinder   affidavit.   List
the   stay   application   before   the
appropriate   court   in   the   2nd  week   of
February, 93.
For a period of three months from
today   the   operation   of   the   order
dated 11.11.92 shall remain stayed.
Petitioner   is   permitted   to   make
the   necessary   amendment   in   his
petition within three days.”
29. Thus on 04.12.1992, when the writ petition of
the   appellant   challenging   the   order   dated
11.11.1992   came   for   consideration,   the   Court   was
not   informed   that   Order   dated   11.11.1992   with
regard to Shiv Kumar Rai has already been stayed
by   the   High   Court.   When   the   Main   Order   dated
11.11.1992   with   regard   to   Shiv   Kumar   Rai   was
stayed, the consequential order issued with regard
to   petitioner   shall   automatically   become
inoperative.   The   dismissal   of   writ   petition   on
04.12.1992 due to above reason shall not adversely
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affect the petitioner's right to continue on the
basis of his appointment dated 21.12.1990. In view
of   the   interim   order   passed   in   writ   petition   on
27.11.1992,   the   order   impugned   in   the   writ
petition   of   the   appellant   was   not   operative,
hence,   dismissal   of   writ   petition   on   04.12.1992
shall   not   have   that   adverse   effect   as   has   been
noted by the learned Single Judge in the impugned
judgment dated 02.02.2012.
30. It   is   due   to   the   above   reason   that
subsequently   the   appellant   was   reinstated  on   the
post on 01.01.1993 because vacancy on which he was
appointed   became   available   by   the   interim   order
obtained by Shiv Kumar Rai on 27.11.1992.
III) Whether re­appointment of the appellant dated
01.01.1993 been limited only till 27.02.1993 after
afflux   of   the   said   period,   appellant's   right   to
continue on the post shall come to an end?
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31. On the Interim Order dated 27.11.1992 having
been passed in writ petition of Shiv Kumar Rai as
stated   above,   the   consequential   order   issued   to
the   appellant   became   inoperative   and   he   was
entitled   to   continue   on   his   post   of   Junior
Accounts Clerk by virtue of his appointment dated
21.12.1990. The Order dated 01.01.1993 was issued
by the respondent No.1 which is to the following
effect: ­
"Accounts Officer, Office of District
Basic Education officer, Azamgarh
Order Number/Accounts/ /1992­93
Date : 01.01.93
Order of re­appointment
Consequent to passing stay order
of   the   operation   of   Order   dated
11.11.1992 passed by the Hon'ble High
Court   at   Allahabad   in   Writ   Petition
in   Shri   Shiv   Kumar   Rai   Versus
Director   of   Education   (Basic)
Nishatganj   and   others,   Shri   Rana
Pratap   Singh   son   of   Shri   Suryanath
Singh   is   re­appointed   on   temporary
basis from the date of taking charge
on the vacant post of Junior Accounts
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Clerk   till   27.02.1993.   This
appointment can be terminated at any
time without any prior information.
Shri   Rana   Pratap   Singh   is
directed   to   take   charge   immediately
on receipt of copy of this order.
Accounts Officer
Office of District Basic
Education Officer, Azamgarh.
Endorsement   Number   Accounts/117­
1240/1993­94
Dated : 01.01.1993”
32. Although   in   the   order   dated   01.01.1993,   the
order refers it as an order of re­appointment but
in   essence   the   order   is   not   an   order   of   reappointment   but   order   of   reinstatement   of
appellant on the post which became available for
the appellant after interim order passed in writ
petition   of   Shiv   Kumar   Rai.   The   appellant   was
asked to go because of reversion of Shiv Kumar Rai
on   his   original   post   by   Order   dated   11.11.1992.
When   the   said   order   was   stayed,   the   appellant
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became   entitled   to   continue   on   his   post   and   no
order of re­appointment was necessary or required.
The entitlement of appellant was by virtue of his
earlier   appointment.   The   re­appointment   order
refers   to   appointment   of   the   appellant   till
27.02.1993.   The   initial   appointment   of   the
appellant   dated   21.12.1992   which   was   made   after
regular selection was not limited to any period.
The date of  27.02.1993 which was mentioned in the
letter dated 01.01.1993 was only due to the reason
that   interim   order   granted   to   Shiv   Kumar   Rai   on
27.11.1993 was only for a period of three months
i.e.   only   upto   the   period   till   27.02.1993   which
date was mentioned in the order dated 01.01.1993.
The interim order passed in the writ petition of
Shiv   Kumar   Rai   was   continued   by   order   dated
09.04.1993, which is to the following effect:­
" ...The interim order dated 27.11.92
is continued and the petitioner will
be paid salary regularly.
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Dated/ 09.04.1993”
33. By continuance of interim order in favour of
Shiv Kumar Rai automatically the order in favour
of the appellant shall continue and there was no
question of his appointment being come to an end.
34. Learned Single Judge in the impugned judgment
has taken the view that since the appointment of
the appellant was only for limited duration till
27.02.1993, he has no right to continue. Learned
Single Judge lost sight of the fact that the date
27.02.1993   was   mentioned   in   the   letter   dated
01.01.1993 because of the fact that interim order
of Shiv Kumar Rai was only for the period of three
months and when the interim order with regard to
Shiv   Kumar   Rai   by   the   High   Court   was   continued,
the   appellant   also   had   become   entitled   to
continue.
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35. Learned Single Judge, thus, committed error in
not   correctly   appreciating   the   consequence   of
order   of   the   High   Court   dated   04.12.1992   in   the
first writ petition and nature of the letter dated
01.01.1993.
36. We,  thus, are of  the  view that  letter dated
01.01.1993 cannot be said to be re­appointment of
the   appellant.   The   order   was   in   essence   reinstatement of the appellant in consequence of his
earlier   appointment   dated   21.12.1990.   From   the
materials brought on record ,it is also clear that
the   Education   Authorities   has   also   treated   the
appointment   of   appellant   continuing   from
22.12.1990, which is clear from order of approval
of   increment   dated   30.12.2000,   Annexure   RA­6  and
subsequent   order   issued   by   Finance   and   Accounts
Officer where date of appointment of appellant has
been mentioned as 21.12.1990.
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IV) Whether by dismissal of W.P.No.44384 of 1992
Shiv Kumar Rai Versus Director Basic Education and
others   on  15.09.2001   shall   result  in   terminating
the vacancy on the post of Junior Accounts Clerk
on which appellant was appointed and was working?
37. The Division Bench has dismissed the special
appeal of the appellant solely relying on the fact
that by dismissal of writ petition of Shiv Kumar
Rai on 15.09.2001, the vacancy of post of Junior
Accounts Clerk shall come to an end.
38. In   the   writ   petition   of   Shiv   Kumar   Rai,
interim order was passed on 27.11.1992 which was
continued   on   09.04.1993.   It   is   submitted   by   the
counsel   for   the   appellant   that   cancellation   of
promotion of Shiv Kumar Rai on 11.11.1990 too was
on account of claim of promotion raised by another
accounts   clerk   Mr.Ram   Sinhasan   Rai.   It   is
submitted that Ram Sinhasan Rai retired in 1999.
Ram   Sinhasan   Rai   was   never   promoted   and   interim
order in favour of Shiv Kumar Rai continued till
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Ram Sinhasan Rai retired in the year 1999. It is
submitted that writ petition of Shiv Kumar Rai has
been   dismissed   as   infructuous   by   efflux   of   time
which is clearly mentioned in the order dismissing
the   writ   petition.     The   writ   petition   of   Shiv
Kumar   Rai   was   not   dismissed   on   merits.   Writ
petition was dismissed as infructuous by efflux of
time   without   determination   of   any   issue.   Shiv
Kumar   Rai   continued   to   work   on   his   promotional
post   till   he   retired   on   29.02.2008.   When   Shiv
Kumar   Rai   did   not   revert   on   post   of   Junior
Accounts   Clerk   and   continued   to   work   till   his
retirement,   the   dismissal   of   writ   petition   as
infructuous   cannot   altogether  wipe   out   the   right
of the appellant to continue on his post of Junior
Accounts Clerk on which post Shiv Kumar Rai never
returned in fact.
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39. The   report   dated   27.04.2017   of   District
Handicapped   Public   Development   Officer,   Azamgarh
addressed to Collector, Azamgarh, has been brought
on record with regard to promotion of Shiv Kumar
Rai,  in which following facts have been stated:­
" ...After inquiry, this fact came to
light   that   the   selection   of   Shri
Singh   has   been   made   by   the   legally
constituted   Selection   Committee   at
the   vacant   post   of   Junior   Accounts
Clerk   due   to   the   promotion   of   Shri
Shiv   Kumar   Rai   at   the   post   of
Assistant   Accountant   in   the
department.   A   representation   was
submitted by Shri Ram Sinhasan Singh,
Junior Accounts Clerk working in the
office   of   Finance   and   Accounts
Officer   of   Basic   Education,   Azamgarh
stating   that   he   is   senior   to   Shri
Rai.   Therefore,   on   the   basis   of
seniority,   he   be   promotied   at   the
post   of   Assistant   Accountant.   Shri
Rai   was   reverted   to   the   post   of
Junior Accounts Clerk by order dated
11.11.1992   of   Finance   and   Accounts
Officer,   Basic   Education   Azamgarh.
Stay   Order   was   obtained   by   Shri   Rai
of   the   order   of   reversion   by   the
Hon'ble   High   Court   of   Allahabad   by
order   dated   27.11.1992.   The   stay
order   dated   27.11.1992   was   continued
by order dated 09.04.1993. Shri Shiv
Kumar   Rai   has   retired   from   the
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promoted post of Assistant Accountant
on   29.02.2008.   Shri   Rai   and   Shri
Sinhasan Singh both have retired from
their   posts.   After   retirement,   the
case   of   mutual   seniority   has
finished. Resultantly the lien/tenure
of Shri Rana Pratap Singh at the post
of Junior Accounts Clerk remained as
earlier...”
40. In the rejoinder affidavit which was filed in
the   special   Appeal,   the   report   dated   27.04.2017
has been brought on record as Annexure RA­14. High
Court  dismissed   the   special   Appeal   on  06.02.2018
solely   relying   on   dismissal   of   writ   petition   of
Shiv Kumar Rai on 15.09.2001.
41. No   exception   can   be   taken   to   the   legal
position   as   enumerated   by   the   Division   Bench   of
the High Court in paragraphs 9 to 13. However, the
Division   Bench   ought   to   have   looked   into   the
ground   realities,   facts,   and   subsequent   events
also.   When   Shiv   Kumar   Rai   was   never   reverted   on
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his   post   and   continued   on   his   promotional   post
till   his   retirement,   it   will   be   taking   a   too
technical view that vacancy of his original post
shall   come   to   an   end   by   dismissal   of   the   writ
petition. More so, the writ petition was dismissed
as   infructuous   on   efflux   of   time   without   an
adjudication   on   merits   and   without   High   Court
being   made   aware   of   the   subsequent   events.   The
Division Bench did not advert to the other aspects
of   the   matter   which   were   adverted   to   by   the
learned   Single   Judge,   without   examining   the
correctness   of   the   view   taken   by   learned   Single
Judge, the Division Bench had dismissed the appeal
solely relying on dismissal of above writ petition
of Shiv Kumar Rai.
42. Learned counsel for the respondents had also
submitted that the conduct of the appellant is not
such that he may be entitled for any relief. It is
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submitted   that   when   the   writ   petition   was
dismissed   by   learned   Single   Judge   on   02.02.2012
and   special   appeal   came   to   be   dismissed   on
06.02.2018,   the   appellant   was   not   entitled   to
continue or receive any salary. He submits that he
had concealed the dismissal of writ petition from
the department.
43. A perusal of the order of the High Court dated
02.02.2012 indicates that learned counsel for the
parties were heard. The order dated 02.02.2012 was
not   an  ex   parte  order   and   the   appellant
immediately   filed   an   special   appeal   which   is
numbered   as   Special   Appeal   No.432   of   2012.   The
arguments   of   the   respondents   cannot   be   accepted
that   the   appellant   concealed   dismissal   of   writ
petition from learned Single Judge. More so, the
appellant was allowed/continued by the respondents
on   his   post   and   by   order   dated   01.08.2012,   an
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order   of   confirmation   was   also   passed   by   the
Department   confirming   him   on   the   post   of   Junior
Accounts Clerk from 22.12.1990 and on the post of
Assistant   Accountant   w.e.f.   22.12.2004.   The
appellant   was   also   given   promotional   scale   of
Assistant   Accountant   w.e.f.   22.12.2004.   The
Department   having   continued   the   appellant   and
granted him promotion and confirmation, It cannot
be   said   that   the   appellant   committed   any
concealment or mis­representation.
44. We   further   notice   that   appellant   has   been
continuing   on   his   post   for   the   last   twenty   six
years and even after dismissal of writ petition of
Shiv   Kumar   Rai   on   15.09.2001   more   than   eighteen
years have passed. The appellant has been promoted
on next higher post and working on the next higher
post as on date.
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45. Learned   Single   Judge   has   not   correctly
appreciated   the   issues   as   noticed   and   discussed
above.   The   Division   Bench   rested   its   opinion   on
one   issue   without   taking   into   consideration
subsequent events and the fact that writ petition
was dismissed as infructuous by efflux of time. 
46. Taking   into   consideration   entire   facts   and
circumstances, we are of the view that judgment of
learned Single Judge dated 02.02.2012 as well as
the   Division   Bench   deserve   to   be   set   aside.   We
Order accordingly. The appeal is allowed.
...................J.
(ASHOK BHUSHAN)
...................J.
(NAVIN SINHA)
NEW DELHI,
DECEMBER 18, 2019.
39 of 39

Review of the order ? =The suit was filed on 16.05.1994 seeking decree with interest, which trial court decreed. Assam Electricity Board filed a first appeal, which was allowed by the High Court holding that bills raised by the appellants were cleared by the Assam Electricity Board prior to commencement of Act, 1993, hence the appellant was not entitled for benefit of Act, 1993. Special leave petition filed against the judgment of the High Court dated 05.04.2001 was permitted to be withdrawn by following order:- “Learned counsel for the petitioner seeks leave to withdraw the special leave petition. He states that he will move the High Court in review stating that it has erred in recording that “all the bills were paid and cleared earlier to the commencement of the Act.” The special leave petition is dismissed as withdrawn accordingly.” 28. After the aforesaid judgment of this Court permitting the petitioner to withdraw the special leave petition, a review petition was filed, which was partly allowed on 19.03.2013. A perusal of the judgment dated 19.03.2013 indicates that the grounds on which the petitioner prayed liberty to file review 32 was not proved in the review petition. The High Court in the review judgment did not hold in favour of the petitioner that he was entitled for the benefit of Act, 1993 rather the High Court accepted the submission of the petitioner that plaintiffs are not debarred from claiming cost under Section 34 CPC, Section 61 of the Sale of Goods Act, 1930 or Section 3 of the Interest Act, 1978 or in equity only on the ground of principal amount. The High Court granted interest at the rate of 9% per annum. The Civil Appeal No. 8445 of 2016 has been filed against the review judgment but obviously the appeal is not against the 9% interest granted to the petitioner. Review judgment does not grant interest under Act, 1993 since the High Court in the review judgment did not interfere with the earlier finding that petitioner is not entitled for benefit under Act,

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (C) NOS. 786-787 OF 2019
IN
CIVIL APPEAL NOS. 8442-8443 Of 2016
M/S SHANTI CONDUCTORS (P) LTD. ...APPELLANT(S)
VERSUS
ASSAM STATE ELECTRICITY
BOARD AND ORS. ...RESPONDENT(S)
WITH
REVIEW PETITION (C) NO. 789 OF 2019
IN
CIVIL APPEAL NOS. 8450 Of 2016
M/S BRAHMAPUTRA CONCRETE
PIPE INDUSTRIES ...APPELLANT(S)
VERSUS
THE ASSAM STATE ELECTRICITY BOARD ...RESPONDENT(S)
1
AND
REVIEW PETITION (C) NO. 788 OF 2019
IN
CIVIL APPEAL NOS. 8445 Of 2016
M/S TRUSSES AND TOWERS (P) LTD. ...APPELLANT(S)
VERSUS
ASSAM STATE ELECTRICITY
BOARD AND ANR. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
These review petitions have been filed against
the common judgment dated 23.01.2019 passed in Civil
Appeal Nos. 8442-8443 of 2016, Civil Appeal No.8450
of 2016 and Civil Appeal No.8445 of 2016, by which
all the Civil Appeals were dismissed, sought to be
reviewed by these applications. All the review
petitions filed have raised different grounds, which
need to be considered separately.
2
Review Petition (C) Nos. 786-787 of 2019
2. To consider the grounds raised in the review
petition, few facts need to be noticed.
2.1 The Assam State Electricity Board, the
respondent has issued two supply orders to
the petitioner dated 31.03.1992 and
13.05.1992 for supply of aluminium electrical
conductors. Petitioner completed supply in
pursuance of the above supply orders
beginning from June, 1992 till 04.10.1993.
The President of India to provide for and
regulate payment of interest on delayed
payment to small scale industries issued an
Ordinance on 23.09.1992 namely “The interest
on Delayed Payments to Small Scale and
Ancillary Industrial Undertaking Ordinance”,
which subsequently became the Act namely “The
interest on Delayed Payments to Small Scale
and Ancillary Industrial Undertaking Act,
1993 (hereinafter referred to as “Act,
1993”)” w.e.f. 23.09.1992.
3
2.2 A Writ Petition (C) No. 1351 of 1993 was
filed by Assam Conductors Manufacturers
Association on behalf of its five members,
which included M/s. Shanti Conductors Private
Limited also for realisation of its dues and
for seeking payment. An interim order was
passed by the Guwahati High Court on
21.07.1993, in which the High Court observed
that respondents may settle with the
outstanding bills of the petitioners. The
respondent paid an amount of approx. Rs.2.15
Crores in instalments to the petitioner and
the last instalment of payment being made on
05.03.1994. A Money Suit No.21 of 1997 was
filed by the petitioner in the Court of Civil
Judge (Sr. Division) No.1 at Guwahati on
10.01.1997 for a decree of Rs.53,68,492.56
towards the interest only on the payment of
the principal amount, which had already been
received by the petitioner.
2.3 On 28.08.1997, Writ Petition (C) No.1351 of
1993 was dismissed observing that writ
4
petitioner may go to the Civil Court for
realisation of its dues.
2.4 The trial court on 02.02.2000 decreed the
money suit of the petitioner for
Rs.51,60,507.42 with future interest @ 23.75%
on a monthly compounding basis. RFA No.66 of
2000 was filed by the petitioner against the
judgment of the trial court. The Division
Bench made a reference to the Full Bench for
answering three points as raised by the
counsel for the appellant. Three-Judge Bench
answered the reference on 05.03.2002. The
respondent filed Special Leave Petition (C)
No. 24577 of 2002, which was subsequently
converted in Civil Appeal No.2351 of 2003.
This Court on 10.07.2012 dismissed the Civil
Appeal No.2351 of 2003 [M/s. Assam State
Electricity Board Vs. M/s. Shanti Conductors
Pvt. Ltd.] alongwith another Civil Appeal
No.2348 of 2003 [M/s. Purbanchal Cables and
Conductors Pvt. Ltd. Vs. Assam State
Electricity Board]. After dismissal of the
5
above Civil Appeals, the Division Bench of
the High Court allowed the RFA No.66 of 2000
filed by the respondents and dismissed the
suit of the petitioner.
2.5 Against the judgment of the Division Bench
dated 20.11.2012, Civil appeal Nos.8442-8443
of 2016 was filed by M/s. Shanti Conductors
(P) Ltd, the petitioner in the appeal. Two
judgments were delivered by two Hon’ble
Judges with two divergent opinion, which
judgment is reported in (2016) 16 SCC Page
13. The matter was referred to Three Judge
Bench, which heard all the appeals and vide
its judgment dated 23.01.2019 dismissed the
appeals.

3. In the suit filed by the petitioners, one of the
questions, which was framed was “Whether the suit
filed by the appellants is barred by limitation?” In
paragraph 27 of the judgment dated 23.01.2019, Seven
question, which had arisen in these appeals have been
6
noticed. Issue No.3 was “Whether money suit by M/s.
Shanti Conductors was barred by limitation?
4. Issue No.3 has been dealt from paragraphs 59 to
76 and we concluded in paragraph 76 that suit filed
by M/s. Shanti Conductors (P) Ltd. was barred by
time.
5. Shri Abhishek Manu Singhvi, learned senior
counsel appearing for petitioner submits that there
is an apparent error in the judgment dated 23.01.2019
in holding that suit was barred by time. He
submitted that according to admitted facts last
payment made by the respondent was on 05.03.1994 and
suit having been filed within three years, i.e., on
10.01.1997 was well within time. It is submitted
that last supply having been completed on 04.10.1993
and even though three years period from 04.10.1993
had lapsed, but the payment having been made on
05.03.1994 by the respondents, a fresh period of
limitation shall be available to the petitioner as
per Section 19 of the Limitation Act, 1963. It is
submitted that in the written submission, which was
7
submitted on behalf of the petitioner, reliance was
placed on Section 19 and further in earlier judgment
of this Court reported in (2016) 15 SCC 13, in
paragraph 53, Justice Gowda has answered the question
of limitation in favour of the appellant relying on
Section 13. It is submitted that Section 19 escaped
the notice of this Court while answering the question
of limitation, which is an error apparent, need to be
corrected and it has to be held that suit was well
within time. Dr. Singhvi further submits that
petitioners were also entitled for benefit of Section
14 of the Limitation Act since Writ Petition No. 1351
of 1993 was filed in the High Court by Assam
Conductors manufacturers Association, of which
petitioner was one of the members, which writ
petition came to be dismissed on 28.08.1997, the
period during which the writ petition was pending
consideration ought to have been excluded while
computing the limitation for money suit filed by the
petitioner. Dr. Singhvi submits that although in the
impugned judgment, this Court has considered claim of
petitioner of exclusion of time under Section 14 of
the Limitation Act but the benefit was erroneously
8
denied on the ground that writ petition was filed by
the Assam Conductors Manufacturers Association, which
is a different entity than the petitioner. He
submits that the said view is apparently erroneous
and need to be corrected. In the review petition,
apart from submissions of limitation, several other
grounds have been urged touching on the issues, which
have been considered and decided in the judgment
dated 23.01.2019. He sought to contend that Act,
1993 is retroactive and further any outstanding
amount at the time of commencement of the Act ought
to attract interest under the Act, 1993.
6. Shri Vijay Hansaria, learned senior counsel
appearing for the respondents refuted the contentions
of the petitioner and submitted that there is no
error apparent on record. The question on limitation
of Suit has been specifically considered and this
court held that suit is barred by time. Arguments
made on the strength of Section 14 has been
specifically considered and rejected. The petitioner
was not entitled for any benefit of Section 14 of the
Limitation Act since Section 14 contemplates
9
exclusion of time of the proceeding, which the
plaintiff has been prosecuting with due diligence.
He submits that plaintiff in the suit in question is
M/s. Shanti Conductors whereas petitioner in the writ
petition, which was filed in the Guwahati High Court
was association, which is a different entity and it
cannot be said that plaintiff of suit was the same
entity, which had filed the writ petition. Shri
Hansaria further submits that against the dismissal
of the writ petition, a writ appeal was filed by the
Association, which writ appeal was also subsequently
dismissed by the Division Bench, which fact has been
concealed by the petitioner. When against the
judgment of learned Single Judge, the appeal was
filed, no question of bonafide prosecuting the
earlier proceedings arises. Shri Hansaria further
submits that for taking benefit under Section 19 of
the Limitation Act, there has to be specific pleading
and proof in the suit. Plaintiffs have neither
pleaded any ground for claiming benefit under Section
19 nor proved the same in the suit, hence benefit of
Section 19 cannot be extended. He further submits
that for taking benefit of Section 19 of the
10
Limitation Act, there has to be acknowledgment of the
payment, which is a question of fact required to be
pleaded and proved by the plaintiffs.
7. Learned senior counsel for the parties have also
placed reliance on various judgments of this Court,
which shall be referred to while considering the
submissions.
8. We may first consider the grounds raised by the
petitioner on Section 19 of the Limitation Act.
Although, during oral submissions, no argument was
raised on Section 19 of the Limitation Act, but the
question being of limitation of the suit, we
permitted the learned counsel for the parties to
advance their submissions.
9. Section 19 of the Limitation Act is as follows:-
“19. Effect of payment on account of debt
or of interest on legacy.—Where payment on
account of a debt or of interest on a
legacy is made before the expiration of
the prescribed period by the person liable
to pay the debt or legacy or by his agent
duly authorised in this behalf, a fresh
period of limitation shall be computed
from the time when the payment was made:
11
Provided that, save in the case of
payment of interest made before the 1st
day of January, 1928, an acknowledgment of
the payment appears in the handwriting of,
or in a writing signed by, the person
making the payment.
Explanation.—For the purposes of this
section,—
(a) where mortgaged land is in the
possession of the mortgagee, the
receipt of the rent or produce of
such land shall be deemed to be a
payment;
(b) “debt” does not include money payable
under a decree or order of a court.”
10. In the judgment dated 23.01.2019, it has been
held that the limitation of the suit filed by the
petitioner shall be governed by Article 113 of the
Limitation Act, 1963, which is three years from the
date when the right to sue accrues. In paragraph 71
of the judgment, it has been held that last supply
was completed on 04.10.1993, thus, amount became due
on 04.11.1993 and the period of three years shall
start running from 04.11.1993 and suit filed was
beyond three years. The petitioners on the strength
of Section 19 contends that since the last payment
was made on 05.03.1994, a fresh period of limitation
12
shall begin from the fresh date, i.e., 05.03.1994 and
the suit filed on 10.01.1997 was well within time.
Section 3 of the Limitation Act, 1963 deals with bar
of limitation. Section 3(1) is as follows:-
“3. Bar of limitation.—(1) Subject to the
provisions contained in sections 4 to 24
(inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed,
although limitation has not been set up as
a defence.
XXXXXXXXXXXXXXXXXX”
11. The above provision makes it clear that in event,
a suit is instituted after the prescribed period, it
shall be dismissed although limitation has not been
set up as a defence. The Court by mandate of law, is
obliged to dismiss the suit, which is filed beyond
limitation even though no pleading or arguments are
raised to that effect. The provisions of Sections 4
to 20 are exceptions when suit beyond the period of
limitation as prescribed in the Schedule shall not be
dismissed as required by Section 3. In this context,
we need to refer to Order VII Rule 6 of the Civil
Procedure Code. Order VII deals with plaint. Order
VII Rule 6 contains a heading “Grounds of exemption
13
from limitation law”. Order VII Rule 6 is as
follows:-
“6. Grounds of exemption from limitation
law. - Where the suit is instituted after
the expiration of the period prescribed by
the law of limitation, the plaint shall
show the ground upon which exemption from
such law is claimed:
Provided that the Court may permit the
plaintiff to claim exemption from the law
of limitation on any ground not set out in
the plaint, if such ground is not
inconsistent with the grounds set out in
the plaint."
12. Order VII Rule 6 uses the words “the plaint shall
show the ground upon which exemption from such law is
claimed”. The exemption provided under Sections 4 to
20 of the Limitation Act, 1963 are based on certain
facts and events. Section 19, with which we are
concerned, provide for a fresh period of limitation,
which is founded on certain facts, i.e., (i) whether
payment on account of debt or of interest on legacy
is made before the expiration of the prescribed
period by the person liable to pay the debt or
legacy, (ii) an acknowledgement of the payment
appears in the handwriting of, or in a writing signed
14
by, the person making the payment. We may notice the
judgment of this Court dealing with Section 20 of the
Limitation Act, 1908, which was akin to present
Section 19 of the Limitation Act, 1963. In Sant Lal
Mahton Vs. Kamla Prasad and Others, AIR 1951 SC 477,
this Court held that for applicability of Section 20
of the Limitation Act, 1908, two conditions were
essential that the payment must be made within the
prescribed period of limitation and it must be
acknowledged by some form of writing either in the
handwriting of the payer himself or signed by him.
This Court further held that for claiming benefit of
exemption under Section 20, there has to be pleading
and proof. In paragraphs 9 and 10, following has
been laid down:-
“9. It would be clear, we think, from the
language of s. 20, Limitation Act, that to
attract its operation two conditions are
essential : first, the payment must be
made within the prescribed period of
limitation and secondly, it must be
acknowledged by some form of writing
either in the handwriting of the payer
himself or signed by him. We agree with
the Subordinate Judge that it is the
payment which really extends the period of
limitation under s. 20, Limitation Act;
but the payment has got to be proved in a
particular way and for reason of policy
the legislature insists on a written or
15
signed acknowledgment as the only proof of
payment and excludes oral testimony.
Unless, therefore, there is acknowledgment
in the required from, the payment by
itself is of no avail. The Subordinate
Judge, however, is right in holding that
while the section requires that the
payment should be made within the period
of limitation, it does not require that
the acknowledgment should also be made
within that period. To interpret the
proviso in that way would be to import
into it certain words which do not occur
there. This is the view taken by almost
all the High Courts in India and to us it
seems to be a proper view to take (See Md.
Moizuddin v. Nalini Bala A.I.R. (24) 1937
Cal 284 : I.L.R. (1937) 2 Cal. 137; Lal
Singh v. Gulab Rai 55 All 280, Venkata
Subbhu v. Appu Sundaram 17 Mad. 92, Ram
Prasad v. Mohan Lal A.I.R. (10) 1923 Nag
117 and Viswanath v. Mahadeo 57 Bom. 453.
10. …………………………………If the plaintiff's right
of action is apparently barred under the
Statute of limitation, O. 7, R. 6, Civil
P.C. makes it his duty to state
specifically in the plaint the grounds of
exemption allowed by the Limitation Act
upon which he relies to exclude its
operation; and if the plaintiff has got to
allege in his plaint the facts which
entitle him to exemption, obviously these
facts must be in existence at or before
the time when the plaint is filed; facts
which come into existence after the filing
of the plaint cannot be called in aid to
revive a right of action which was dead at
the date of the suit. To claim exemption
under s. 20. Limitation Act the plaintiff
must be in a position to allege and prove
not only that there was payment of
interest on a debt or part payment of the
principal, but that such payment had been
16
acknowledged in writing in the manner
contemplated by that section…………………………”
13. We need to notice as to whether the petitioners
in plaint have pleaded any exclusion of time under
Section 19 of the Act or not. The plaint is filed as
Annexure P/2 in Civil Appeal Nos. 8442-8443 of 2016.
A perusal of the plaint indicates that there is no
pleading as to exception of limitation by running any
fresh period of limitation as per Section 19. In
paragraph 10, the details of delivery challans have
been given, last challan being dated 04.10.1993 has
been mentioned by which supply was made. In
paragraph 12, details of payments received have also
been mentioned, in which last being made on
05.03.1994 has been mentioned, but for the last
payment made on 05.03.1994, there was no pleading of
an acknowledgment on the part of the respondents,
which could result in start of fresh period of
limitation. Further in paragraph 21, it has been
further specifically pleaded that provisions of
Limitation Act do not apply in view of the provisions
contained in the Act, 1993 as because the Act, 1993
is having overriding effect over the Limitation Act
17
and all other Acts. Paragraph 21 of the plaint is
referred to for ready reference:-
“21. That the transaction between the
plaintiffs and the defendants are duly
maintained by the plaintiffs in the Books
of Accounts like ledger, Sale Register
etc., which are kept in the usual course
of the business of the plaintiffs and
those accounts between the plaintiffs and
the defendants are in continuity and the
interest payable by the defendants to the
plaintiffs are carried over till date. As
such the suit of the plaintiffs is in
within time. Apart from that the
provisions of the Limitation Act do not
apply in view of the provisions contained
in the Act, 1993 as because the Act of
1993 is having overriding effect over the
Limitation Act and all other Acts.”
14. There being no specific pleading by the
plaintiffs claiming any start of fresh period of
limitation, there was no occasion for defendants to
raise any reply in reference to Section 19. Shri
Abhishek Manu Singhvi, learned senior counsel has
relied on two judgments of this Court, which need to
be noticed: (i) Jiwanlal Achariya Vs. Rameshwarlal
Agarwalla, AIR 1967 SC 1118, and (ii) Kamla Devi and
Others Vs. Pt. Mani Lal Tewari and Others, (1976) 4
SCC 818. In Jiwanlal Achariya (supra), this Court
had occasion to consider Section 20 of the Limitation
18
Act, 1908, which was akin to present Section 19 of
the Limitation Act, 1963. The Court was considering
the question as to what shall be the date of a postdated cheque, whether it shall be the date on which
cheque bears or the date the cheque is handed over to
compute the start of fresh period of limitation. The
Court held that the date which post-dated cheque
bears subject to payment by the bank shall be treated
as a date for start of the fresh period of
limitation. In paragraph 8 of the judgment, it was
observed that the proviso to Section 20 shall be
treated to be complied with for the cheque itself is
an acknowledgment of the payment in the handwriting
of the person giving the cheque. Paragraph 8 of the
judgment is as follows:-
“8. This brings us to the question of
limitation. The facts are not in dispute
now. The promissory note was executed on
February 4, 1954. On the same date a postdated cheque bearing the date February 25,
1954 was given by the defendant-appellant
to the plaintiff-respondent, the intention
being that on being realised it would be
credited towards part payment. It was
realised sometime after February 25, 1954
and was credited towards part payment, the
appellant himself having made an
endorsement admitting this part payment.
But it is contended on behalf of the
appellant that as the post-dated cheque
19
was given on February 4, 1954, that must
be held to be the date on which part
payment was made. It has been held by the
High Court that the acceptance of the
post-dated cheque on February 4, 1954 was
not an unconditional acceptance. Where a
bill or note, is given by way of payment,
the payment may be absolute or
conditional, the strong presumption being
in favour of conditional payment. It
followed from the finding of the High
Court that the payment was conditional
i.e. that the payment will be credited to
the person giving the cheque in case the
cheque is honoured. In the present case
the cheque was realised and the question
is what is the date of payment in the
circumstances of this case for the purpose
of Section 20 of the Limitation Act.
Section 20 inter alia lays down that where
payment on account of debt is made before
the expiration of the prescribed period by
the person liable to pay the debt, a fresh
period of limitation shall be computed
from the time when the payment was made.
Where therefore the payment is by cheque
and is conditional, the mere delivery of
the cheque on a particular date does not
mean that the payment was made on that
date unless the cheque was accepted as
unconditional payment. Where the cheque is
not accepted as an unconditional payment,
it can only be treated as a conditional
payment. In such a case the payment for
purposes of Section 20 would be the date
on which the cheque would be actually
payable at the earliest, assuming that it
will be honoured. Thus if in the present
case the cheque which was handed over on
February 4, 1954 bore the date February 4,
1954 and was honoured when presented to
the bank the payment must be held to have
been made on February 4, 1954, namely, the
date which the cheque bore. But if the
cheque is post-dated as in the present
20
case it is obvious that it could not be
paid till February 25, 1954 which was the
date it bore. As the payment was
conditional it would only be good when the
cheque is presented on the date it bears,
namely, February 25, 1954 and is honoured.
The earliest date therefore on which the
respondent could have realised the cheque
which he had received as conditional
payment on February 4, 1954 was 25th
February, 1954 if he had presented it on
that date and it had been honoured. The
fact that he presented it later and was
then paid is immaterial for it is the
earliest date on which the payment could
be made that would be the date where the
conditional acceptance of a post-dated
cheque becomes actual payment when
honoured. We are therefore of opinion that
as a post-dated cheque was given on
February 4, 1954 and it was dated February
25, 1954 and as this was not a case of
unconditional acceptance, the payment for
the purpose of Section 20 of the
Limitation Act could only be on February
25, 1954 when the cheque could have been
presented at the earliest for payment. As
in the present case the cheque was
honoured it must be held that the payment
was made on February 25, 1954. It is not
in dispute that the proviso to Section 20
is complied with in this case, for the
cheque itself is an acknowledgment of the
payment in the handwriting of the person
giving the cheque. We are therefore of
opinion that a fresh period of limitation
began on February 25, 1954 which was the
date of the post-dated cheque which was
eventually honoured.”
15. In the above case, in the plaint itself it was
noticed that although the promissory note was
21
executed on 04.02.1954 and the suit was filed on
22.04.1957 but the plaintiff had relied on payment of
a cheque on 25.02.1954 to bring the suit within time.
Paragraph 1 of the judgment is to the following
effect:-
“Two questions of law arise in this appeal
by special leave against the judgment of
the Patna High Court. The facts which have
been found by the High Court and which are
necessary for our purposes may be briefly
narrated. The appellant was the defendant
in a suit filed by the plaintiffrespondent for recovery of money on the
basis of a promissory note for Rs 10,000
executed on February 4, 1954 by the
defendant-appellant in favour of the
plaintiff-respondent. 12 per cent per
annum interest was to run on the
promissory note which was payable on
demand or to the order of the plaintiffrespondent. The suit was filed on February
22, 1957 and was thus obviously beyond
time from February 4, 1954. The plaintiffrespondent relied on a payment by cheque
on February 25, 1954 to bring the suit
within time.”
16. The judgment of this Court in Jiwanlal Achariya
(supra) does not lay down that even without pleading
all facts for claiming start of fresh period of
limitation, the plaintiff is entitled for the benefit
of Section 19. The next judgment relied by Shri
Singhvi is Kamla Devi and Others (supra), in which
22
case, this Court was considering Section 19 of the
Limitation Act, 1963. This Court relied on an
acknowledgement of payment for holding that from the
date of acknowledgment of order period of limitation
shall start. In paragraph 4 of the judgment
following has been laid down:-
“4. The last contention pressed was that
the personal decree should not have been
granted, because it was barred by
limitation. The basis for this contention
is that the payment of Rs 25, which has
been acknowledged on the registered
mortgage deed, was not itself by a
registered endorsement and, therefore, the
plaintiff was entitled to a period of
three years only, even if Section 19 may
give an extension of limitation. We see no
merit in this contention. The function of
Section 19 is to provide a later date to
count the period of limitation afresh, and
that fresh period of limitation will be
computed from the time when the
acknowledgement is signed. Nothing turns
on whether the acknowledgement is itself
registered or not. The office of Section
19 being to postpone the date of reckoning
limitation and not to create a different
substantive period of limitation, the
latter depends upon the appropriate
article of the Limitation Act which
applies to the suit. In this case, the
mortgage document was registered and the
personal covenant was contained in the
registered deed. Therefore, Article 116,
which gives a period of six years,
applies. Thus, the fresh period of
limitation will be six years and it has to
be counted from the date of
acknowledgement, namely, August 31, 1940.
23
In this view, there in no merit in the
plea of limitation either. This is
obviously a case where the revisional
court had missed a fact apparent upon the
record and, therefore, thought it fit, in
the exercise of its discretion to review
its judgment. Justice has thereby been
furthered rather than frustrated. We are
not here concerned with an endorsement on
the deed as constituting a cause of
action.”
17. The above judgment noticed the function of
Section 19, which provides for a later date to count
the period of limitation afresh. There cannot be
any dispute to the preposition as laid down by this
Court in above case.
18. We may also notice the proviso of Order VII Rule
6, which has been added by Act 104 of 1976, which
provided that the Court may permit the plaintiff to
claim exemption from the law of limitation on any
ground not set out in the plaint, if such ground is
not inconsistent with the grounds set out in the
plaint. The proviso of Order VII Rule 6 cannot come
to the rescue of the plaintiff since as noticed
above, the plaintiffs have specifically pleaded in
paragraph 21 that the provisions of the Limitation
24
Act are not applicable since Act, 1993 has overriding
effect. The trial court in decreeing the suit of the
plaintiff has accepted the above submission and has
held that Limitation Act, 1963 is not applicable.

19. We may further notice that paragraph 24 of the
plaint, which is a paragraph of cause of action for
the suit, which refers to date beginning from
31.03.1992 till 05.10.1993, i.e., the beginning from
the first supply order i.e., 31.03.1992 and date of
last supply order, i.e., 05.10.1993, but cause of
action is not claimed from the date 05.03.1994, which
was the date when the last payment was received by
the petitioner. The petitioner in the plaint has
clearly not pleaded for benefit of Section 19 nor has
brought necessary facts to enable the Court to
consider the claim under Section 19. We, thus, are
of the view that petitioner is not entitled for
benefit of Section 19 of the Limitation Act and there
is no error in the judgment of this Court dated
23.01.2019 holding that the suit of the plaintiff was
barred by time.
25
20. We may also notice few submissions of Dr. Singhvi
in support of his plea that the petitioner was
entitled for benefit of Section 14. In our judgment
dated 23.01.2019, we have already taken the view that
benefit of Section 14 of Limitation Act cannot be
claimed by the plaintiff since writ petition, which
was filed by the Association was by different entity.
The question of benefit of Section 14 having been
specifically considered and rejected by this Court in
its judgment dated 23.01.2019, we do not find any
error apparent on the aforesaid ground. Moreover,
present is a case where writ petition filed by
Association was dismissed on 28.08.1997 subsequent to
filing of the suit by plaintiff on 10.01.1997.
Furthermore, after the judgment of the learned Single
Judge on 28.08.1997 Association has filed a writ
appeal challenging the said judgment, which facts
also detracts from fulfilling the conditions as
required for extending the benefit of Section 14 of
the Limitation Act.
26
21. Insofar as other submissions of Dr. Singhvi that
Act, 1993 is retroactive in nature and further amount
due at the time of the commencement of the Act ought
to attract interest of the Act, 1993, all these
submissions have been elaborately considered in the
judgment dated 23.01.2019, which have been considered
on merits. The scope of review is limited and under
the guise of review, petitioner cannot be permitted
to reagitate and reargue the questions, which have
already ben addressed and decided. The scope of
review has been reiterated by this Court from time to
time. It is sufficient to refer the judgment of this
Court in Parsion Devi and Others Vs. Sumitri Devi and
Others, (1997) 8 SCC 715, wherein in paragraph 9
following has been laid down:-
“9. Under Order 47 Rule 1 CPC a judgment
may be open to review inter alia if there
is a mistake or an error apparent on the
face of the record. An error which is not
self-evident and has to be detected by a
process of reasoning, can hardly be said
to be an error apparent on the face of the
record justifying the court to exercise
its power of review under Order 47 Rule 1
CPC. In exercise of the jurisdiction under
Order 47 Rule 1 CPC it is not permissible
for an erroneous decision to be “reheard
and corrected”. A review petition, it must
be remembered has a limited purpose and
27
cannot be allowed to be “an appeal in
disguise”.”
22. We, thus, do not find any merit in Review
Petition (C) Nos. 786-787 of 2019, which is
accordingly dismissed.
Review Petition (C) No.789 of 2019
23. Shri Ajit Kumar Sinha, learned senior counsel in
support of the review petition contended that there
is an error apparent on the face of record in
observation of the Court made in paragraph 85 of the
judgment. Some of the supplies have been made prior
to the commencement of the Act, 1993, i.e., prior to
23.09.1992. It is submitted that some of the
supplies were made after 23.09.1992, hence the
petitioner was entitled for the benefit of interest
under the Act, 1993. He submits that in ground (b),
it has been mentioned that details of supply and
reason of corresponding details have been noticed by
the trial court in the judgment dated 30.09.2002
passed in Money Suit No.32 of 1996. Reference has
been made to Annexure – P/3 at Page – 71 @ Page 88 of
28
Civil Appeal No.8450 of 2016. We have perused
Annexure P/3, the judgment of the trial court dated
30.09.2002, our attention has been invited to page 88
of the judgment, where reference of 12 bills have
been made in the judgment, which is to the following
effect:-
“Stated specifically, it is the
plaintiff’s evidence that against the
supply of poles to the defendants
different divisions on receipt of orders
from the defendants, the plaintiff
submitted a number of twelve bills for the
payment to the defendants to be reiterated
as:
Sl.
No.
Bill No. Date Gross Amount of
Bill
1. BCPI/31/91/92 20.3.92 Rs.5,02,545.92
2. BCPI/32/91/92 20.3.92 Rs.2,99,541.65
3. BCPI/33/91/92 20.3.92 Rs.2,98,344.48
4. BCPI/3/92/93 7.4.92 Rs.4,67,928.48
5. BCPI/11/92-93 8.6.92 Rs.1,08,806.45
6. BCPI/12/92-93 8.6.92 Rs.2,48,459.90
7. BCPI/26/92-93 29.9.92 Rs.17,729.50
8. BCPI/27/92-93 - Rs.79,699.77
9. BCPI/28/92-93 - Rs.1,81,497.98
10. BCPI/29/92-93 - Rs.87,249.81
11. BCPI/30/92-93 - Rs.12,782.45
12. 5% Security
Deposit Bill
- Rs.23,738.00
Total
Outstanding
Amount
Rs.23,28,324.39
29
24. A perusal of the above chart given in the
judgment indicates that the date 29.09.1992 is a date
of bill for the payment for supply of the materials
by the plaintiffs. In the judgment dated 23.01.2019,
we had observed that “there being nothing on record
to come to the conclusion that any supply was made
after the enforcement of the Act so as to enable the
appellant to claim interest under Section 3 read with
Section 4 of the Act, 1993, we are of the view that
judgment of the High Court does not need any
interference in this appeal”.
25. We, thus, do not find any merit in the submission
of the learned counsel for the appellant that there
is error apparent on the face of record in
observation of the Court made in paragraph 85 of the
judgment, the said submission is rejected and the
Review Petition (C) No. 789 of 2019 is dismissed.
Review Petition (C) No.788 of 2019
30
26. Shri Basava S. prabhu Patil, learned senior
counsel appearing for the petitioner contends that
this Court in the judgment dated 23.01.2019 has
dismissed the appeal of the petitioner as not
maintainable, which is an error apparent on record.
He submits that the appeal filed by the petitioner
being Civil Appeal No. 8445 of 2016 against the
review judgment of the High Court dated 19.03.2013
was maintainable.
27. Shri Patil submits that in the judgment dated
23.01.2019, the Issue No.6 was specifically framed
regarding maintainability of the Civil Appeal No.8445
of 2016. The maintainability of the appeal was
specifically considered and answered in paragraphs
80. 81 and 82 of the impugned judgment. The
submission of Shri Patil is that since the Civil
Appeal No.8445 of 2016 was against the judgment of
the High Court dated 19.03.2013 by which review
petition was partly allowed by allowing interest @9%
p.a., against which judgment, the appeal was
maintainable and withdrawal of earlier appeal by the
petitioner was not fatal. The appellants were issued
31
two supply orders dated 17.02.1992 and 17.03.1992.
The suit was filed on 16.05.1994 seeking decree with
interest, which trial court decreed. Assam
Electricity Board filed a first appeal, which was
allowed by the High Court holding that bills raised
by the appellants were cleared by the Assam
Electricity Board prior to commencement of Act, 1993,
hence the appellant was not entitled for benefit of
Act, 1993. Special leave petition filed against the
judgment of the High Court dated 05.04.2001 was
permitted to be withdrawn by following order:-
“Learned counsel for the petitioner seeks
leave to withdraw the special leave
petition. He states that he will move the
High Court in review stating that it has
erred in recording that “all the bills
were paid and cleared earlier to the
commencement of the Act.” The special
leave petition is dismissed as withdrawn
accordingly.”
28. After the aforesaid judgment of this Court
permitting the petitioner to withdraw the special
leave petition, a review petition was filed, which
was partly allowed on 19.03.2013. A perusal of the
judgment dated 19.03.2013 indicates that the grounds
on which the petitioner prayed liberty to file review
32
was not proved in the review petition. The High
Court in the review judgment did not hold in favour
of the petitioner that he was entitled for the
benefit of Act, 1993 rather the High Court accepted
the submission of the petitioner that plaintiffs are
not debarred from claiming cost under Section 34 CPC,
Section 61 of the Sale of Goods Act, 1930 or Section
3 of the Interest Act, 1978 or in equity only on the
ground of principal amount. The High Court granted
interest at the rate of 9% per annum. The Civil
Appeal No. 8445 of 2016 has been filed against the
review judgment but obviously the appeal is not
against the 9% interest granted to the petitioner.
Review judgment does not grant interest under Act,
1993 since the High Court in the review judgment did
not interfere with the earlier finding that
petitioner is not entitled for benefit under Act,
1993. The review on the ground on which liberty was
sought was in essence not accepted by the High Court
in its review judgment. Moreover, in judgment dated
23.01.2019, the maintainability of appeal having been
considered and found against the petitioner, we do
not find any ground to review the petition.
33
29. In result, Review Petition (C) Nos. 786-787 of
2019, Review Petition (C) No. 789 of 2019 and Review
Petition (C) No. 788 of 2019 are dismissed.

......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( S. ABDUL NAZEER )
......................J.
 ( NAVIN SINHA )
New Delhi,
December 18, 2019.
34

No rules of the game were changed after the selection process had started = As far as the finding of the High Court that the rules of the game were changed after the selection process had started, we are of the considered view that this is not the case as far as the present case is concerned. There were no minimum marks provided for Paper III in the advertisement. This could be done by the moderation committee even at a later stage. This is not a change brought about but an additional aspect brought in while determining the merit of the candidates who are found fit to be eligible for consideration for appointment of Lecturers.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9441 OF 2019
(@SPECIAL LEAVE PETITION (CIVIL) NO.14926 OF 2017)
JHARKHAND PUBLIC SERVICE
COMMISSION   …PETITIONER(S)
Versus
MANOJ KUMAR GUPTA AND ANR.                …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 9442 OF 2019
    (@SPECIAL LEAVE PETITION (CIVIL) NO. 31106 OF 2017)
J U D G M E N T
Deepak Gupta, J.
The Jharkhand Public Service Commission (JPSC) issued an
advertisement   on   19.07.2006   inviting   applications   from
candidates desirous of competing in the Jharkhand Eligibility
Test (JET).  This test is not meant for selection to any post but is
conducted   to   determine   the   eligibility   of   the   candidates   for
appointment as lecturers in universities and colleges of the State
1
of Jharkhand.   This test called the State Level Eligibility Test
(SLET)   is   conducted   as   per   the   guidelines   laid   down   by   the
University Grants Commission (UGC).
2. The test consists of three papers – the first two papers are
multiple choice questions to be answered on an Optical Mark
Reader (OMR).  One test is of a general subject and one test is of
the subject for which the candidate applies.  The third paper is a
descriptive  type question  paper dealing  only  with  the  subject
selected by the candidate.  Relevant portion of the advertisement
reads as follows:
“A candidate who does not appear in Paper­I will
not   be   permitted   to   appear   in   Paper­II   and
Paper­III.   Paper­III will be evaluated only for
those   candidates   who   are   able   to   secure   the
minimum   qualifying   marks   in   Paper­I   and
Paper­II as per the table given in the following:­
CATEGORY MINIMUM QUALIFYING MARKS
PAPER­I PAPER­II PAPER­I 
+
PAPER­II
GENERAL/OBC 40 40 100 (50%)
PH/VH 35 35 90 (45%)
SC/ST 35 35 80 (40%)
2
3. The writ petitioner obtained 50% marks in Papers I and II
but he did not do as well in Paper III.  The JPSC fixed a cut off
percentage of 60 for Paper III which the writ petitioner did not
attain and as such he was declared not successful and, therefore,
ineligible to be considered for appointment as lecturer.
4. Aggrieved by the said action, the writ petitioner filed a writ
petition before the High Court which allowed the same.   The
appeal filed by the JPSC before the writ court was also allowed
mainly on the ground that the Public Service Commission could
not have fixed qualifying marks of 60% and this amounted to
changing the rules of the game after the advertisement had been
issued and process of selection had started.  It held that once the
candidate had obtained 50% marks, the candidate could not be
disqualified and the JPSC was not bound by the instructions of
the UGC in this regard.  The High Court also directed that the
case of the writ petitioner would be considered on the basis of
performance.   The High Court held that no cut off marks had
been provided for Paper III.
3
5. We have heard Shri Sunil Kumar, learned senior counsel
appearing for the JPSE who drew our attention to the scheme
framed by the UGC for the SLET.  The scheme has a provision for
constitution   of   a   moderation   committee   which   will   help   in
deciding   the   cut   off   marks   in   each   subject   for   declaring   the
result.  The relevant portion of the scheme reads as follows:
“Moderation Committee: The committee will help in
deciding   the   cut­off   marks   in   each   subject   for
declaring the result.   The Committee will consist of
the following:
1. Chairman of Steering/Advisory Committee.
2. State Government Representatives.
3. Two Professors of the different State Universities
in rotation.
4. One Professor from outside the State.
5. Member Secretary (State agency)
6. One nominee of the U­CAT out of two nominated
by UGC.
7. Member Secretary, (UGC Official) U­CAT, UGC.”
Mr.   Sunil   Kumar   contends   that   the   moderation   committee,
keeping in view the various factors, decides what should be the
cut off  marks in  each subject and  this  does not  have  to  be
decided at the stage of issuance of advertisement.  On the other
hand, Shri Abhishek Vikas, learned counsel appearing for the
original writ petitioner, submits that the advertisement does not
4
envisage any minimum cut­off marks for Paper III.   He further
submits that this is only an eligibility test and the field of choice
becomes larger if more people are held eligible.  Both sides have
challenged the judgment of the High Court and we are deciding
both the appeals by this common judgment. 
6. A perusal of Clause 4.1 of the scheme clearly indicates that
the   moderation   committee   has   been   constituted   only   for   the
purpose   of   deciding   the   cut­off   marks   in   each   subject   for
declaring the result.   The advertisement clearly indicates that
only those candidates who obtained 50% marks in Paper I and II
would be eligible to take the test in Paper III.   The minimum
qualifying marks in case of General/OBC candidates was 50%.
At this stage, there was no need to fix the qualifying marks for
Paper   III.     That   need   will   arise   only   when   the   moderation
committee   meets   and   decides   what   should   be   the   level   of
competence expected from the people who are to be considered
for appointment as Lecturers.  It is for the moderation committee
to decide what should be the cut­off marks.  There could be the
subject where all the people who qualified Paper I and II get very
low marks in Paper III and the moderation committee may be
5
justified   in   lowering   the   standards   and   prescribing   lower
qualifying standards.  On the other hand, there may be a subject
where   there   are   many   candidates   who   do   extremely   well   in
Paper   III   and   the   moderation   committee   may   decide   to   fix   a
higher minimum standard.   The constitution of a moderation
committee is normally done only to do this sort of moderation. 
7. As far as the finding of the High Court that the rules of the
game were changed after the selection process had started, we
are of the considered view that this is not the case as far as the
present   case   is   concerned.     There   were   no   minimum   marks
provided for Paper III in the advertisement.  This could be done
by the moderation committee even at a later stage.  This is not a
change brought about but an additional aspect brought in while
determining the merit of the candidates who are found fit to be
eligible for consideration for appointment of Lecturers.
8. In view of the above, we are of the considered opinion that
the High Court erred in holding that the JPSC could not fix the
minimum marks for Paper III.  Hence, we set aside the judgment
of the High Court dated 09.11.2016.  The Civil Appeal No. 9441
6
of 2019 @ Special Leave Petition (Civil) No.14926 of 2017 filed by
the Jharkhand Public Service Commission is allowed and C.A.
No. 9442 of 2019 @Special Leave Petition (Civil) No.31106 of
2017 filed by the other side (writ petitioner) is dismissed.
……….………………J.
(L. Nageswara Rao)
……………………….J.
(Deepak Gupta)
New Delhi,
December 18, 2019
7