It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction. 2020 [4] advocatemmmohan apex court cases 9

It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.
                    2020 [4] advocatemmmohan apex court cases  10

C.A. Nos.6216-6217 of 2019
1
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6216-6217 OF 2019
Anjuman E Shiate Ali & Anr. …Appellants
vs
Gulmohar Area Societies Welfare
Group & Ors. etc. ...Respondents
J U D G M E N T
R.SUBHASH REDDY,J.
1. Both these civil appeals arise out of a common
judgment dated 19.07.2017, passed by the High Court of
Judicature at Bombay, in writ petition Nos. 2476 of
2015 and 1130 of 2017, as such, they are heard together
and disposed of by this common Order. The said writ
petitions are filed by way of Public Interest
Litigation, for protecting two plots which are the
subject matter of the writ petition, originally left
C.A. Nos.6216-6217 of 2019
2
towards open spaces, in the layout, approved in the
year 1967.
2. The writ petition No. 2476 of 2015, was filed by
four petitioners. Petitioner No. 1, is a Trust,
registered under the Bombay Public Trust Act, 1950
petitioner No.2 is an Architect, involved in the
planning, design and maintenance of public open spaces
in the City of Mumbai, petitioner No.3 is a filmmaker
and petitioner No.4 is an NGO. So far as the second
petition is concerned, petitioner Nos. 2, 3 and 4 were
common as in the earlier petition. Petitioner No.1 is a
Co-operative Housing Society. The subject matter of the
2015 writ petition is a plot of land, ad-measuring
2,000 sq. meters (2500 square yards), forming part of
plot No.6, CTS No. 29 of Survey No.287 situated on 9th
Wireless Road, JVPD Scheme, Juhu, whereas the subject
matter of the 2017 writ petition, is a plot of land admeasuring 1687.18 sq. yards, forming part of old plot
No.3, CTS No.196-A, North-South, 10th Road, JVPD Scheme,
Juhu, Mumbai.
3. For the purpose of disposal of these appeals, we
refer to the parties, as arrayed in writ petition No.
1130 of 2017.
C.A. Nos.6216-6217 of 2019
3
4. The erstwhile Maharashtra Housing Board (MHB), now
Maharashtra Housing and Area Development Authority,
(MHADA), framed a scheme covering total land area of
5,80,000/- square yards, under Bombay Housing Board
Act, 1948. The said Scheme was called as JVPD Scheme.
5. The 4th respondent-Trust, representing interest of
Dawoodi Bohra Community, made a request to the Housing
Commissioner, to allot land, in JVPD Scheme. The then
Maharashtra Housing Board allotted four plots, bearing
plot Nos. 1, 3, 5 and 6 in the said Scheme, totally admeasuring 46,850 sq. yards, for allotment to the
individuals and housing societies. For dividing the
said plots bearing Nos. 1,3,5 and 6, the 4th respondent,
through its Architect, submitted a layout plan for
approval by the then Bombay Municipal Corporation (now
Municipal Corporation of Greater Mumbai) (MCGM). Bombay
Municipal Corporation has sanctioned the layout, in
which, an area ad-measuring 1687 sq.yards in plot No.3
and an area of 2500 sq.yards, in plot No.6, were shown
for the purpose of garden/open space. It is not in
dispute the remaining plots in the sanctioned layout,
were allotted to individuals and housing societies and
such plots are already utilized by making constructions
thereon. So far as plot No.6/11 is concerned, there
C.A. Nos.6216-6217 of 2019
4
were earlier proceedings in writ petition Nos.1964 of
2007 and 2151 of 2009. Initially, the said plot was
allotted by the State Government to one Parasmani Cooperative Housing Society and thereafter on 15.02.2007,
the possession of the said plot was given to the 4th
respondent-Anjuman E-Shiate Ali (appellant no.1 herein)
(for short, ‘Anjuman Trust’), a Public Trust. In the
said writ petition, there was a settlement between the
parties and both the petitions came to be disposed of,
in accordance with the consent terms, by order dated
10.11.2014. One of the petitioners, i.e., “Save Open
Spaces” (one of the respondents herein) approached the
High Court, seeking review of the Order, by filing
review petitions. The said review petitions are
disposed of, leaving open the issue as to whether such
plots can be utilized for construction or not and by
further observing that petitioners in review petitions
are not bound by the Order in writ petitions. When the
appellants were taking steps to use the said plot for
making construction, the writ petitioners approached
High Court in 2015 by way of a petition, claiming
various reliefs inter alia for a declaration that the
said plot forms part of mandatory open space in the
layout and no construction can be permitted on such
C.A. Nos.6216-6217 of 2019
5
plot. So far as plot bearing No.3/14 is concerned,
MHADA had granted license for beautification and
maintenance of the garden to the 1st petitioner-Society
(respondent no.1 herein). When the 4th respondentAnjuman Trust, approached the Chief Executive Officer
(CEO) of MHADA (2nd respondent), for registration of Cooperative Society, same was opposed by petitioner No.1.
The Chief Officer, MHB, vide Order dated 24.07.2013,
rejected the claim of Anjuman Trust. Aggrieved by the
Order passed by the Chief Officer, MHB, appeal was
preferred before CEO and Vice President of MHADA, which
appeal was opposed by petitioner No.1, on merits as
well as on the ground of limitation. The CEO and Vice
President, overruling the objections of petitioner
No.1, had passed an Order dated 21.03.2017, directing
lease of sub-plot No.3/14, in favour of beneficiaries,
chosen by Anjuman Trust, for the purpose of
construction. At that stage, 2nd writ petition was filed
in the year 2017, questioning the orders passed by the
CEO and Vice President of MHADA.
6. Primarily, it was the case of the writ petitioners
before the High Court that, as these two plots were
shown as open spaces/garden in the sanctioned layout,
in the year 1967, as such, they cannot be used for
C.A. Nos.6216-6217 of 2019
6
constructions. It was alleged that the Anjuman Trust,
taking advantage of development plan submitted in 1999
by MHADA, in which the area covered by these two plots
also, was shown as residential area, was trying to make
constructions. It was further alleged that the 2nd
respondent, in collusion with the Anjuman Trust, has
allotted the said plots to its nominees. It was pleaded
on behalf of the writ petitioners that the usage of the
area, as residential purpose, in the development plan
of 1999, has nothing to do with the reservations shown
in the approved layout of 1967. It was pleaded that as
per the Development Control Rules for Greater Bombay,
1967, 15 per cent of the area was to be shown as open
space, as such these two plots were shown/ reserved for
open space. The writ petitioners have also questioned
the authority of 2nd respondent for passing any Order,
on the application filed by the 4th respondent, for
granting lease in favour of its nominees.
7. The relief sought in the writ petitions was
opposed, mainly on the ground that in view of the
development plan prepared in the year 1999 by MHADA,
requisite area was already shown towards open spaces,
as such, it is not open to look into earlier documents.
It was the specific case of 4th respondent, that in the
C.A. Nos.6216-6217 of 2019
7
1999 development plan, as entire area covered by plot
No.3 and plot No.6 was shown as residential area, the
sub-plot nos. 14 and 11 in these plots, which were
shown earlier as reserved for open spaces/garden, can
very well be used for making constructions. It was the
case of the 4th respondent that open area which is shown
in the 1999 development plan, works out to 24.63% of
the total area and the same was in accordance with New
Development Control Regulations of 1991.
8. The relief sought in the writ petition was
opposed by the State Government as well as MHADA, on
the ground that as the said sub-divisioned plots were
shown as residential, in the development plan of 1999,
there is no impediment for making constructions on
these two plots.
9. The Division Bench of the High Court, by
considering rival claims of the parties, referring to
relevant provisions of Development Control Rules
(DCRs), and the provisions of Municipal Corporation
Act, has held that these two plots were shown as
reserved for garden purpose in the approved layout, in
the year 1967, as such, same cannot be used for
constructions. It is further held that, while preparing
the development plan for entire JVPD scheme in the year
C.A. Nos.6216-6217 of 2019
8
1999, the details of internal layouts, as sanctioned by
the BMC, were not shown. Further it is held that, the
usage, as mentioned for residential area in the
development plan, cannot be understood to mean that the
open spaces/garden, as approved in layout of 1967, can
be used for constructions. The High Court has also
recorded a finding that the 2nd respondent has grossly
erred in setting aside the decision of predecessor and
directed the Chief Architect to withdraw the revised
plans, submitted by MHADA to MCGM, vide Order dated
21.03.2017. Precisely, the High Court has observed that
the 2nd respondent had committed error in mixing the
issue of reservation, as provided in the development
plan and the open space/garden, which was required to
be left mandatorily, as per 1967 DCR and 1991 DCR. With
the aforesaid findings, the High Court has allowed the
writ petitions, and quashed the Order dated 21.03.2017,
passed by the 2nd respondent-MHADA and declared that the
aforesaid two plots are required to be maintained as
open spaces, as per the layout sanctioned in
proceedings No. BMC/MCGM/1967 and further declared that
no construction activity can be permitted on the
aforesaid plots. Consequently, the lease deed executed
C.A. Nos.6216-6217 of 2019
9
by 2nd respondent-MHADA, in favour of 5th respondentSociety, was also quashed.
10. We have heard Sri Vikas Singh, learned senior
counsel appearing for the appellants; Sri Shiraz P.
Rustomjee, learned senior counsel appearing for the
respondent nos.1-4; Mr. Ashish Wad, learned counsel
appearing on behalf of Municipal Corporation of Greater
Mumbai; and Mr. Sanjay Jain, learned Additional
Solicitor General appearing on behalf of Maharashtra
Housing & Area Development Authority.
11. Having heard the learned counsels on both sides,
we have perused the impugned order and other material
placed on record.
12. It is contended by learned senior counsel,
appearing for the appellants that the obligation to
reserve the open space/recreation ground (RG), is on
the owner of JVPD Scheme i.e. MHADA and not on
appellant no. 1-Anjuman Trust. The appellant no.1’s
Architect, while liaising with MCGM left two sub-plots
i.e. 3/14 and 6/11 temporarily because of MHADA’s
deficiency in reserving 15% of JVPD Scheme as open
space/garden, as per the 1967 DCR.
13. It is submitted that when the layout plan was
prepared for the entire area of more than 5,80,000
C.A. Nos.6216-6217 of 2019
10
square yards as per Regulation 23 of 1991 DCR, open
spaces shown in the approved layout of 1967, were not
shown as open spaces, inasmuch as the area covered by
the two plots in question was earmarked as residential
area and as such, there cannot be any hindrance for
making constructions on the land in question. It is
further submitted that on account of failure on the
part of the then MHB/MHADA, to prepare layout for subplots as per 1967 DCR, appellant No.1 was constrained
to prepare the private layout plan for the four big
plots at the insistence of BMC and was compelled to
leave 10% open space in such layout as a stop gap
arrangement. As the obligation to leave/reserve open
space in the entire area of JVPD Scheme is that of
MHADA, there is no reason or justification for
preventing constructions on the plots in question. It
is further submitted that about 25% of the land is
already shown for open spaces in the development Plan
as per 1991 DCR and the High Court has committed error
in recording a finding that the earlier two plots are
to be continued as open spaces/garden spaces.
14. On the other hand, learned counsel appearing for
respondent Nos. 1-4/ writ petitioners, has contended
that the approved layout of 1967, is binding on all the
C.A. Nos.6216-6217 of 2019
11
parties. It is submitted that the request of Anjuman-E
Shiate-Ali (Anjuman Trust) for allotment of plots was
accepted by the then Maharashtra Housing Board, on the
ground that Anjuman Trust should obtain the necessary
sanction of layout/sub-divided plots, for plot Nos. 1,
3, 5 and 6 from the MCGM. It is submitted that having
had the benefit of sub-division and utilization of all
the plots for the purpose of construction, it is not
open for the appellants to plead that, the two plots
reserved for open spaces/garden, can also be used for
construction. It is submitted that the development Plan
as per the 1991 DCR, broadly indicates the usage of
land in various zones, as such, the same is no reason
to claim for making constructions in the smaller
plots/sub-divided plots, which are left as open
space/garden in the approved layout. It is submitted
that under the Scheme of the Act and Rules/Regulations
made thereunder, there is no concept as temporary
layout, as claimed by the appellants.
15. It is submitted that the sub-plot Nos. 3/14 and
6/11 were offered voluntarily in the layout plan and
the same were legally mandated to be kept as open
space/garden by MCGM, as per Development Control
Regulation 39(a)(ii) of 1967. Further it is submitted
C.A. Nos.6216-6217 of 2019
12
that the obligation to obtain layout, as contemplated
under Section 302 of Mumbai Municipal Corporation Act,
1888 (‘MMC Act’) is not restricted in its application
to the owner of the land alone and, in fact, it applies
to every person who intends to sell, use any land or
permit the same to be used for building purposes or
divide the land into building plots. It is submitted
that Anjuman Trust is squarely covered by the ambit of
the aforesaid Section. It is submitted that the
development Plan of 1999 does not overtake the 1967
layout, which is approved by the Competent Authority,
sub-dividing the big plots into smaller residential
sites.
16. Sri Sanjay Jain, learned Additional Solicitor
General appearing MHADA, has submitted that in view of
the subsequent development plan of entire JVPD area,
covering an extent of more than 580000 sq. yards of
land, by which the sites in question were shown as
residential sites, there is no impediment for making
constructions on such land. It is submitted that the
High Court has committed error in directing the said
plots to be continued as open spaces/garden, as shown
in the layout of 1967.
C.A. Nos.6216-6217 of 2019
13
17. Having regard to contentions advanced by learned
counsels on both sides, the only issue which is
required to be considered is whether the two sub-plots
bearing Nos. 3/14 and 6/11, which are shown as open
spaces/garden in the approved layout of 1967, can be
allowed to be utilized for constructions, in view of
the subsequent development plan prepared by MHADA.
18. The Anjuman Trust, at first instance, had
approached the erstwhile MHB (presently MHADA) for
allotment of plots, for the purpose of individual
allottees and Co-operative Societies. On such request,
an extent of 46850 sq. yards of land was allotted to
the Anjuman Trust, which is a part of larger JVPD
Scheme. The Regulation No. 39 of 1967 DCR, reads as
under:
“39. Layouts or Sub-divisions.-
(a) Layouts or sub-division in residential
and commercial zones;
(i) When the land under development admeasures 3,000 sq. yds. or more the owner
of the land shall submit a proper layout or
sub-division of his entire independent
holding.
(ii) In any such layout or sub-division 15
per cent of the entire holding area shall
be reserved for a recreational space which
shall be as far as practicable in one
place.
C.A. Nos.6216-6217 of 2019
14
(iii) No such recreational space shall
admeasure less than 450 sq. yds.
(iv) The minimum dimension of such
recreational space shall in no case be less
than 25 feet and if the average width of
such recreational space is less than 80
feet the length thereof shall not exceed 2½
times the average width.”
19. For dividing the total land allotted for the use
of Dawoodi Bohra Community, covered by plot Nos. 1, 3,
5 and 6, admeasuring 46850 sq. yards, the Architect of
the appellants has prepared the layout and submitted it
for sanction to the Municipal Corporation. In such
layout, an area ad-measuring 1687 sq. yards in plot
No.3 and the area of 2500 sq. yards in plot No.6 were
shown as open spaces/garden. Since then, the said two
plots were kept open for being used for garden purpose
only. Subsequently, MHADA has prepared a development
plan for the entire JVPD scheme covering more than
5,80,000 sq. yards. The crux of the appellants’ case is
that in such development plan, the area covered by
these two small plots, which are shown as open
spaces/garden in the approved layout, was shown as
residential area, as such, they are entitled to make
constructions in such two plots also.
C.A. Nos.6216-6217 of 2019
15
20. As rightly held by the High Court, we are also of
the view that the two plots, which are shown as open
spaces/garden, in the approved layout, cannot be
allowed to be used for the purpose of construction. A
large area of 46,850 sq. yards was allotted for the
purpose of allotting small plots to the members of
Dawoodi Bohra Community. The entire area of 46,850 sq.
yards was covered by four big plots, bearing nos. 1, 3,
5 and 6. For utilizing such large area, by dividing the
same into smaller plots, the Architect of the Anjuman
Trust has prepared layout and submitted to competent
authority, showing these two small plots as open
spaces/garden. It is not in dispute, such layout is
approved and all the plots, except these two plots,
which are left towards open space/garden were utilized
for construction. Having had the benefit of such
approved layout, and after making constructions in all
the plots, except these two plots, which are left
towards open space/garden, the appellants cannot claim
that they are entitled to make constructions, based on
development plan prepared by MHADA, for the entire JVPD
Scheme, which covers more than 5,80,000 sq. yards. It
is the case of the appellants that such layout of 1967
was prepared as a temporary measure. There is no such
C.A. Nos.6216-6217 of 2019
16
concept as temporary layout in the Scheme of the MMC
Act and Regulations made thereunder.
21. During the relevant time, MMC Act, 1888 (Bombay
Act No.3 of 1888) was in force. To divide the land into
complete plots, statutory approvals were required for
the layout as per Section 302 and 302-A of the said
Act. As such, the open spaces, which were left towards
open space and garden in the approved layout were in
conformity with the Regulation No. 39 of 1967 DCR and
Sections 302 and 302A of MMC Act.
22. The development plan which is prepared by MHADA
for entire area of more than 5,80,000 sq. yards,
indicates broadly the usages in different zones. It is
well known that such development plans are prepared by
showing various zones such as residential, commercial,
industrial etc. Merely because in such development plan
prepared, in the area shown for residential purpose,
authorities have not indicated the open spaces/garden,
which were already left in the approved layout in such
residential area, appellants cannot claim the benefit
of making constructions in the plots which were left
towards open space/garden. It is fairly well settled
that the open spaces/garden left in an approved layout,
cannot be allowed for the purpose of constructions.
C.A. Nos.6216-6217 of 2019
17
However, it is to be noticed that if one wants to
utilize a big plot within the area of residential usage
as indicated in the development plan, it is mandatory
to sub-divide such big plots into smaller plots for
utilizing them for the purpose of construction. When
the layout is to be approved, certain percentage of
area is required to be left towards roads, open plots,
garden etc. The development Plan prepared by MHADA,
cannot be confused with the layout which is approved
confining to four big plots, on the application made by
the appellants. It is not necessary for only the owner
to apply for such layout. In any event, having applied
for layout which was approved and after utilizing the
59 plots out of total of 61 plots, it is not open for
the appellants to plead that it was not the obligation
of the appellants to submit layout. In the layout
sanctioned and obtained in the year 1967, the open
spaces were rightly reserved as provided under
Regulation 39 of 1967 DCR. Further, it is clear from
perusal of 1991 DCR that for different layouts or sub
divisions of different sizes in residential and
commercial zones, different areas of open spaces are
required to be provided. The development plan which was
submitted by MHADA and approved on 15.10.1999, is with
C.A. Nos.6216-6217 of 2019
18
regard to the entire area covered by JVPD scheme. It
appears that while submitting the development plan, the
details of internal layouts sanctioned by BMC were not
shown. The sub-division of bigger plots, as per the
layout sanctioned by BMC, were also not shown in such
development plan. Merely on such basis, the appellants
cannot claim that the sub-plots which are covered by
approved layout, left towards open spaces/garden, can
also be used for constructions. The Chief Officer, in
his communication, has made it clear that the mandatory
open spaces in the approved plan are to be leased out
to neighbouring societies for recreation purposes.
Further, communication made by MHADA also shows that
they have sent the proposal to MCGM for rectification
of development plan, submitted in the year 1999, for
showing these two plots as garden plot. It is totally
erroneous on the part of 2nd respondent-MHADA in passing
the order which is impugned in the writ petition, by
recording a finding that Anjuman Trust has complete and
absolute right in respect of sub-plot No.14 of Plot
No.3. It is clear from the material placed on record
that the authorities have mixed up the issue of
reservation/usage as shown in the development plan and
C.A. Nos.6216-6217 of 2019
19
the open spaces as required to be kept in the layout as
per the 1967 DCR and 1991 DCR.
23. It is also to be noticed that the open spaces are
required to be left for an approval of layout or for
the purpose of creating lung space for the owners of
other plots where constructions are permitted. The 4
plots bearing Nos. 1, 3, 5 and 6, were sub-divided at
the instance of the appellant-Society in its entirety
and approval was taken for dividing such land into 61
plots. It is not open to claim for construction in the
two plots which are reserved for open spaces/garden
spaces also. It is fairly well settled that in an
approved layout, the open spaces which are left, are to
be continued in that manner alone and no construction
can be permitted in such open spaces. The Development
Plan which was submitted in the year 1999, as per the
1991 DCR, will not divest the utility of certain plots
which are reserved for open spaces in the approved
layout. The appellants cannot plead that such a layout
was only temporary and as a stop gap arrangement, the
said two plots were shown as open spaces/garden and now
they be permitted to use for construction.
24. For the aforesaid reasons and in view of the
reasons assigned by the High Court in the judgment
C.A. Nos.6216-6217 of 2019
20
under appeal, we are of the view that there is no merit
in these appeals, accordingly, these appeals are
dismissed, with no order as to costs.
 ……………………………………………………………………J
 (MOHAN M. SHANTANAGOUDAR)
 ……………………………………………………………………J
 (R. SUBHASH REDDY)
NEW DELHI;
April 17, 2020 

whether the husband of the respondent had acquired an indefeasible right to seek for voluntary retirement from service ? and in that light whether the High Court was justified in arriving at the conclusion that the subsequent resignation dated 03.05.2006 submitted by the husband of the respondent be considered as an application for voluntary retirement and treat the cessation of the jural relationship of employer/employee under the provision for Voluntary Retirement. Apex court held that when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondent’s husband had yielded to the position of nonacceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent wasnot justified. The High Court has, therefore, committedan error in passing the concurrent orders. 2020[4]Advocatemmmohan Apex Court Cases 9

whether the husband of the respondent had acquired an indefeasible right to seek for voluntary
retirement from service ?
and in that   light 
whether the High Court was justified in arriving at the conclusion that the subsequent resignation dated 03.05.2006 submitted by the husband of the respondent be considered as an application   for   voluntary   retirement   and   treat   the cessation of the jural relationship of employer/employee under the provision for Voluntary Retirement.

Apex court held that 

 when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably   considered   by   the   employer,   instead   of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been   to   seek   for   acceptance   of   the   application   by initiating   appropriate   legal   proceedings.   Instead   the respondent’s husband had yielded to the position of nonacceptance   of   the   application   for   voluntary   retirement and   has   thereafter   submitted   his   resignation.   The acceptance   of   the   resignation   was   acted   upon   by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had   not   raised   any   grievance  during  his   life   time, consideration of the prayer made by the respondent wasnot justified. The High Court has, therefore, committedan error in passing the concurrent orders. 
    2020[4]Advocatemmmohan Apex Court Cases 9 
                                          NON­REPORTABLE
   IN THE SUPREME COURT OF INDIA
   CIVIL APPELLATE JURISDICTION
   CIVIL APPEAL NO. 2236  OF 2020
   (Arising out of SLP (Civil) No.5650 of 2019)
Rajasthan State Road Transport               .… Appellant(s)
Corporation Ltd. & Ors.                                 
Versus
Smt. Mohani Devi & Anr.   ….  Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
       
          Leave granted.   
2.   The respondent herein was the Petitioner in S.B
Civil   Writ   Petition   No.   2839/2012   filed   before   the
Rajasthan High Court. The brief facts that led to the filing
of the Writ Petition is that respondent herein had claimed
the   retiral   benefits   of   her   late   husband   who   was
appointed   in   the   post   of   conductor   on   15.03.1979   at

Page 1 of 13
Alwar   Depot   of   the   Appellant   Road   Transport
Corporation.  The benefits were claimed on the basis that
her husband be deemed to have voluntarily retired from
service instead of having resigned.
3. In the course of service, respondent’s husband had
moved an application seeking voluntary retirement from
service   on   28.07.2005   indicating   health   reasons.   No
order was passed on the said application for voluntary
retirement and the respondent’s husband continued to
remain in service.
4. Subsequently,   the   respondent’s   husband   on
03.05.2006 submitted his resignation as he claimed to be
under depression and his health condition had further
deteriorated.   The   resignation   was   accepted   by   the
authorities on 31.05.2006, he was relieved of his duties
and the benefits were paid.
5. Thereafter, the respondent’s husband is stated to
have immediately submitted an application pointing out
that   he   had   erred   in   mentioning   ‘resignation’   and   he

Page 2 of 13
desired   to   retire   in   view   of   his   earlier   application   for
voluntary retirement. The application also mentioned that
no decision had been taken by authorities on his first
application dated 28.07.2005 and therefore he should be
treated   as   having   voluntarily   retired   with   consequent
retiral   benefits.   The   respondent   after   her   husband’s
death approached the High Court with such prayer.
6. The   learned   Single   Judge   held   that   the
respondent’s   husband   had   moved   an   application
indicating deteriorating health and forcing such employee
to work would be an act of oppression. Additionally, it
was held that the voluntary retirement application was
not   decided   within   the   period   prescribed   as   per   the
Clause 19­ D(2) of the Pension Scheme and reliance was
placed on Clause 18­D(2) of RSRTC Standing Orders as
per   which   an   employee   of   the   Corporation   who   had
rendered   pensionable   service   was   entitled   to   seek
voluntary   retirement.   It   held   that   the   respondent’s
husband would be deemed to have retired even though
he had moved another application terming his retirement

Page 3 of 13
as resignation in view of the law laid down in  Sheel
Kumar   Jain  vs.  The   New   India   Assurance   Co.   Ltd.
2012 (1) SLR 305. Thus, the appellants were directed to
treat respondent’s husband as having voluntarily retired
and release the retiral benefits to which he was entitled.
7. Aggrieved, an appeal was filed by the appellants
herein   in   D.B   Special   Appeal   Writ   No.   1261/2018.
However, no infirmity was found by the Division Bench in
the reasoning of the learned Single Judge and the learned
Division Bench dismissed the appeal. The same has been
assailed by the appellants herein in this appeal.
8.  In the above background we have heard Dr. Ritu
Bhardwaj,   learned   counsel   for   the   appellants,   Mr.   S.
Mahendran,   learned   counsel   for   the   respondents   and
perused the appeal papers.
9. The  short  question  that  arises  for  consideration
herein is as to whether the husband of the respondent
had acquired an indefeasible right to seek for voluntary
retirement from service and in that   light whether the

Page 4 of 13
High Court was justified in arriving at the conclusion that
the subsequent resignation dated 03.05.2006 submitted
by the husband of the respondent be considered as an
application   for   voluntary   retirement   and   treat   the
cessation of the jural relationship of employer/employee
under the provision for Voluntary Retirement.
10. In order to consider the above aspect, a perusal of
the factual matrix in the instant case would indicate that
the respondent’s husband had joined the service of the
Appellant   Transport   Corporation   at   Alwar   Depot   on
15.03.1979. The application seeking voluntary retirement
was   submitted   on   28.07.2005   by   which   period   the
respondent’s husband no doubt had put in more than 25
years of service. Insofar as the eligibility to apply seeking
voluntary retirement in view of the completed length of
service,   the   respondent’s   husband   had   acquired   such
right. The Appellant Transport Corporation however, did
not think it appropriate to accept the application and
grant the voluntary retirement. In that circumstance the
husband of the respondent submitted his resignation on

Page 5 of 13
03.05.2006   which   was   accepted   by   the   Appellant
Transport Corporation and was relieved on 31.05.2006.
The respondent contends that immediately thereafter an
application   was   made   indicating   that   the   word
‘resignation’   was   inadvertently   mentioned   and   the
intention of the respondent’s husband was to renew his
request   for   voluntary   retirement.   However,   the
consideration   of   such   subsequent   application   by   the
Appellant   Transport   Corporation   did   not   arise   and   as
indicated, the respondent’s husband had been relieved on
31.05.2006 and all the service benefits payable in respect
of an employee who had resigned from service was paid,
which was accepted by the respondent’s husband. The
undisputed   position   is   also   that   the   respondent’s
husband   subsequently   died   on   14.04.2011.   It   is
subsequent to the death of the husband, the respondent
had   filed   the   writ   petition   before   the   High   Court   of
judicature for Rajasthan, Bench at Jaipur in S.B. Civil
Writ Petition No.2839/2012. The learned Single Judge
while considering the case of the respondent merely took

Page 6 of 13
note of the legal position which had been enunciated by
this Court in the facts of those cases which had been
referred and with a bare reference to Clause 19D(2) of the
Rules arrived at the conclusion that the application for
voluntary retirement was deemed to have  been accepted
and therefore, directed that the appellants to treat the
respondent’s husband to have retired from service on the
date he was relieved and pay the retiral benefits. The
Division Bench has reiterated the said position.
11. Having heard the learned counsel for the parties,
we find that the factual aspects which were relevant for
decision making in the instant case has not been referred
by the High Court during the course of its order but has
merely assumed that the voluntary retirement application
should be deemed to have been accepted when there was
no rejection.   As noticed from the objection statement
filed by the respondent herein herself, the right to seek
for   voluntary   retirement   is   stipulated   in   Rule   50   of
Rajasthan   Civil   Services   Pension   Rules,   1996.     As
indicated above, since the same provides for 20 years of

Page 7 of 13
qualifying   service,   the   respondent’s   husband   had
qualified to apply. However, what is relevant to take note
is that sub­Rule(2) thereof provides that the notice of
voluntary retirement given by the employee shall require
acceptance by the appointing authority. In the instant
case,   the   undisputed   position   is   that   there   was   no
acceptance and in that circumstance the husband of the
respondent had submitted his resignation on 03.05.2006.
Though   the   High   Court   has   indicated   deemed
acceptance,   the   same   would   not   be   justified   in   the
instant facts since the position which has not been taken
note by the High Court is that as on the date when the
husband of the respondent had made the application for
voluntary retirement on 28.07.2005 the husband of the
respondent   had   already   been   issued     Charge­Sheets
bearing No.7352 dated 16.12.2004 and bearing No.4118
dated   11.07.2005   alleging   misconduct.   Though   the
respondent,   through the objection statement seeks to
contend that the charge alleged against her husband was
not   justified,   that   aspect   of   the   matter   would   not   be

Page 8 of 13
germane to the present consideration since the position
of   law   is   well   established   that   pending   disciplinary
proceedings if an application for voluntary retirement is
submitted there would be no absolute right seeking for
acceptance since the employer if keen on proceeding with
the   inquiry   would   be   entitled   not   to   consider   the
application for voluntary retirement. Hence there would
be   no   obligation   to   accept.   In   the   instant   facts   the
proceedings   relating   to   the   charge   sheet   was   taken
forward   and   completed   through   the   final   order   dated
03.09.2005.   The   punishment   of   withholding   of   the
increment was imposed. In such circumstance the nonconsideration of the application for voluntary retirement
would be justified.
12. Be that as it may, as noted the inquiry had been
completed and thereafter when the respondent’s husband
submitted the resignation on 03.05.2006, the same was
processed, accepted, he was relieved on 31.05.2006 and
the payment of terminal benefits were made which had
been   accepted   by   him.   During   his   lifetime   up   to

Page 9 of 13
14.04.2011 the husband did not raise any issue with
regard to the same. It is only thereafter the respondent
has filed the writ petition before the High Court. Primarily
it is to be noticed that when the application for voluntary
retirement was filed on 28.07.2005 and had not been
favourably   considered   by   the   employer,   instead   of
submitting the resignation on 03.05.2006, if any legal
right was available the appropriate course ought to have
been   to   seek   for   acceptance   of   the   application   by
initiating   appropriate   legal   proceedings.   Instead   the
respondent’s husband had yielded to the position of nonacceptance   of   the   application   for   voluntary   retirement
and   has   thereafter   submitted   his   resignation.   The
acceptance   of   the   resignation   was   acted   upon   by
receiving the terminal benefits. If that be the position,
when the writ petition was filed belatedly in the year
2012 and that too after the death of the employee who
had   not   raised   any   grievance   during   his   life   time,
consideration of the prayer made by the respondent was

Page 10 of 13
not justified. The High Court has, therefore, committed
an error in passing the concurrent orders.
13. The   learned   counsel   for   the   respondent   would
submit that even if it is a case of resignation the deceased
husband of the respondent was entitled to the payment of
gratuity   as   he   had   put   in   the   qualifying   service.   The
learned counsel for the appellant would contend that the
gratuity   amount   had   been   paid.   In   that   regard,   the
reference made to para 9 of the writ appeal filed before
the   High   Court   would   however   indicate   that   though
reference   is   made   to   the   payment   disbursed   to   the
respondent’s   husband   while   accepting   the  resignation,
the same does not disclose that the gratuity amount has
been paid. Further, in the appeal filed before this Court
the appellants have sought to justify the non­payment of
the   gratuity   as   the   husband   of   the   respondent   had
resigned   from   service.   As   rightly   pointed   out   by   the
learned counsel for the respondents, Section 4(1)(b) of the
Payment of Gratuity Act, 1972 provides that the gratuity
shall be payable if the termination of employment is after

Page 11 of 13
5   years   of   continuous   service   and   such   termination
would include resignation as well. In that view, if the
gratuity amount has not been paid to the respondent’s
husband, the liability to pay the same would subsist and
the respondent No.1 will be entitled to receive the same
in   accordance   with  the   provisions   of   the   Act.   In   that
regard it is directed that the appellants shall accordingly
calculate   the   gratuity   and   pay   the   same   to   the
respondent No.1, if already not paid. Such payment shall
be made within four weeks from this date. 
14. In the result, the appeal is allowed. The judgment
dated   19.11.2018   passed   in   D.B.   Special   Appeal(W)
No.1261/2018 upholding the order dated 01.11.2017 in
S.B. Civil Writ Petition No.2839 of 2012 is set aside. The
gratuity   amount   as   directed   above   shall   be   paid   to
respondent   No.1   in   terms   of   the   provisions   of   the
Payment of Gratuity Act, 1972 within four weeks from
this date.

Page 12 of 13
15.  Pending application, if any, shall stand disposed of.
………….…………….J.
(R. BANUMATHI)
          ………….…………….J.
                                              (A.S. BOPANNA)
New Delhi,
April 15, 2020


Page 13 of 13

Application of law - Misapplication of Law -Non Application of Law - High court misapplied the law to the set of facts and as such liable to be set aside. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Apex court held that in cases where there has been a long period of continuous separation and the marriage becomes a fiction it would be appropriate to dissolve such marriage. On the position of law enunciated it would not be necessary to advert indetail inasmuch as the decision to dissolve the marriageapart from the grounds available, will have to be taken oncase to case basis and there cannot be a strait jacket formula. This Court can in any event exercise the power under Article 142 of the Constitution of India in appropriate cases. However, in the instant facts, having given our thoughtful consideration to that aspect we notice that the parties hail from a conservative background where divorce is considered a taboo and further they have a female child born on 03.01.2007 who is presently aged about 13 years. In a matter where the differences between the parties are not of such magnitude and is in the nature of the usual wear andtear of marital life, the future of the child and her marital prospects are also to be kept in view, and in such circumstance the dissolution of marriage merely becausethey have been litigating and they have been residingseparately for quite some time would not be justified inthe present facts, more particularly when the restitution of conjugal rights was also considered simultaneously. In that view, having arrived at the conclusion that the very nature of the substantial questions of law framed by the High Court is not justified and the conclusion reached is also not sustainable, the judgment of the High Court is liable to be set aside 2020 [3]advocatemmmohan apex court cases 16

                     
Application of law - Misapplication of Law -Non Application of Law - High court misapplied the law to the set of facts and as such liable to be set aside.
Samar   Ghosh   vs.   Jaya Ghosh  (2007) 4 SCC 511
Apex court held  that in cases where there has been a long period of continuous separation and   the   marriage   becomes   a   fiction   it   would   be appropriate to dissolve such marriage.  
On the position of law enunciated it would not be necessary to advert indetail inasmuch as the decision to dissolve the marriageapart from the grounds available, will have to be taken oncase to case basis and there cannot  be a strait jacket formula. 
This Court can in any event exercise the power under   Article   142   of   the   Constitution   of   India   in appropriate cases. 
However, in the instant facts, having given   our   thoughtful   consideration   to   that   aspect   
we notice   that   the   parties   hail   from   a   conservative background   where   divorce   is   considered   a   taboo   and further they have a female child born on 03.01.2007 who is presently aged about 13 years.  
In a matter where the differences   between   the   parties   are   not   of   such magnitude and is in the nature of the usual wear andtear of marital life,  the future of the child and her marital prospects   are   also   to   be   kept   in   view,   and   in   such circumstance the dissolution of marriage merely becausethey have been litigating and they have been residingseparately for quite some time would not be justified inthe present facts, more particularly when the restitution of conjugal rights was also considered simultaneously.   In that view, having arrived at the conclusion that the   very   nature   of   the   substantial   questions   of   law framed   by   the   High   Court   is   not   justified   and   the conclusion reached is also not sustainable, the judgment of the High Court is liable to be set aside
          2020 [3]advocatemmmohan apex court cases  16

                     REPORTABLE
             
   IN THE SUPREME COURT OF INDIA
   CIVIL APPELLATE JURISDICTION
   CIVIL APPEAL NOS.  1912­1913   OF 2020
   (Arising out of SLP (CIVIL) Nos.2704­2705 of 2019)
Mangayakarasi                .…Appellant(s)
Versus
M. Yuvaraj           ….  Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
     
         Leave granted.   
2.     The   appellant   is   before   this   Court   assailing   the
judgment dated 20.07.2018 passed by the High Court of
Judicature at Madras in CMSA Nos.23 & 24 of 2016.  The
appellant is the wife of the respondent.  Since the rank of
parties was different in the various proceedings as both
the parties had initiated proceedings against each other,
for   the   sake   of   convenience   and   clarity   the   appellant
herein would be referred to as ‘wife’ and the respondent
herein would be referred to as ‘husband’ wherever the
context so admits. 
Page 1 of 18
3. The husband initiated the petition under Section
13 of the Hindu Marriage Act seeking dissolution of the
marriage.     The   wife   on   the   other   hand   initiated   the
petition   under   Section   9   of   the   Hindu   Marriage   Act
seeking   restitution   of   conjugal   rights.     The   respective
petitions     registered   as   H.M.O.P   No.13/2010   (old
No.532/2007)   and   H.M.O.P   No.27/2008   were   clubbed
and   the   learned   Subordinate   Judge,   Pollachi   by   the
judgment dated 26.11.2010 dismissed the petition filed
by the husband and allowed the petition filed by the wife.
The   husband   claiming   to   be   aggrieved   by   the   said
judgment preferred the appeals in CMA No.90/2011 and
71/2011 before the Additional District & Sessions Judge,
Coimbatore, namely, the First Appellate Court.  The First
Appellate Court having considered the matter, dismissed
the   appeals   filed   by   the   husband.     The   husband,
therefore, filed the Second Appeal under Section 100 of
the   Code   of   Civil   Procedure   before   the   High   Court   of
Judicature at Madras in CMSA Nos.23 & 24 of 2016.  The
High Court has through the impugned judgment dated
Page 2 of 18
20.07.2018 allowed the appeals, set aside the order for
restitution of conjugal rights and dissolved the marriage
between   the   parties   herein.     It   is   in   that   light   the
appellant­wife is before this Court in these appeals.
4. The undisputed position is that the marriage of the
parties was solemnised on 08.04.2005 which in fact was
after the parties had fallen in love with each other.  As
per the averments, the wife is elder to the husband by six
to seven years.  The parties also have a female child born
on 03.01.2007.  During the subsistence of the marriage
certain differences cropped up between the parties.  The
husband   alleged   that   the   wife   was   of   quarrelsome
character and used filthy language in the presence of
relatives and friends and also that she had gone to the
college where the husband was employed and had used
bad language in the presence of the students which had
caused insult to him.  The husband, therefore, claiming
that   he   belongs   to   a   respectable   family   and   cannot
tolerate such behaviour of the wife got issued a legal
notice dated 07.12.2006 which was not responded to by
Page 3 of 18
the wife.   The husband therefore filed a petition under
Section 13 of Hindu Marriage Act in H.M.O.P No.65/2007
seeking dissolution of marriage.  The husband contends
that the wife appeared before the Trial Court and on the
assurances put forth by her of leading a normal married
life the petition was not pressed further.   The husband
alleges that merely about five days thereafter the wife
went to the college and abused him and also left the
marital home on 12.04.2007.  In that background on the
very   allegations   which   had   been   made   in   the   first
instance, the petition seeking dissolution of marriage in
H.M.O.P No.13/2010 (old No.532/2007) was filed.
5. The   wife   who   appeared   and   filed   objection
statement disputed the allegations of the husband.  The
factual aspects with regard to the qualification of the
husband at the time of the marriage and his employment
were also disputed.   It was contended by her that after
marriage they resided together at Sathiyamangalam up to
the   year   2005   and   thereafter   at   Saravanampatti   till
December, 2006.     It was contended that the distance
Page 4 of 18
between the hometown of the parents of the husband and
the said places referred to is more than 120 kms and
travelling   the   said   distance   was   difficult.     Hence   the
allegation  of  insulting  them  is not  true.  Subsequently
when   the   relationship   between   the   husband   and   his
parents   were   cordial   and   were   living   together,   it   is
claimed that the wife had behaved well with the relatives
and the visitors.   Hence the allegation about her rude
behaviour   is   disputed.     In   respect   of   the   legal   notice
issued by the husband on 07.12.2006 it is contended
that during the pregnancy, the husband told her that his
parents are insisting on issuing the legal notice and the
husband did not mean what had been indicated therein.
Within about 25 days thereafter the wife had delivered a
female child and even in respect of the earlier petition in
H.M.O.P   No.65/2007   she   was   made   to   appear   and
submit about her readiness to live with him which she
had done unsuspectingly.  The said case was also stated
to be instigated by his parents.  In that light, the wife had
Page 5 of 18
denied the allegations and sought for dismissal of the
petition.
6. In the petition filed by the wife under Section 9 of
the Hindu Marriage Act seeking for restitution of conjugal
rights   she   had   referred   to   the   manner   in   which   the
marriage has taken place and had indicated that they are
living   separately   without   valid   reasons   and,   therefore,
sought for the relief.  The husband having appeared filed
the objection statement referring to the parties belonging
to different communities as also the age difference.  The
further averments made in the petition were denied. The
husband also referred to the complaint filed by the wife
before   the   Negamam   Police   Station   in   Crime
No.401/2007 in which the husband was arrested by the
police and was in judicial custody for seven days.  In that
light, it was contended that the marriage between the
parties had broken down to a point of no return, hence
sought for dismissal of the petition. 
7. The Trial Court framed the issues based on the
rival contentions. The husband examined himself and the
Page 6 of 18
witnesses as PW1 to PW4 and exhibited the documents
A1   to   A5,   while   the   wife   examined   herself   and   the
witnesses as RW1 to RW3 and exhibited the documents
as   R1   to   R3.     The   Trial   Court   after   referring   to   the
evidence   tendered,   has   dismissed   the   petition.     While
doing so the Trial Court had referred in detail to the
evidence that had been tendered and in that light insofar
as the allegations, the Trial Court was of the opinion that
the husband has not examined any witnesses to prove
that after 15 months of the marriage the quarrel started
between   them   and   that   he   had   to   shift   about   seven
houses due to quarrelling nature of the wife with the
neighbours.     It   was   further   observed   that   from   the
witnesses who have been examined, the evidence do not
relate   to   the   allegation   that   the   wife   had   abused   the
husband in front of the students and the co­workers.  In
that   light,   the   Trial   Court   noticed   that   the   allegation
made by the husband as PW1 and the relatives who were
examined as witnesses (PW2 and PW3) had alleged that
the wife had lived a luxurious life at her parent’s house.
Page 7 of 18
In that light, the Trial Court taking into consideration the
manner in which the marriage between the parties had
taken place and also taking note that a female child was
born from the wedlock on 03.01.2007 had formed the
opinion that the petition seeking divorce had been filed at
the instigation of the parents of the husband and there
was no real cause for granting the divorce.
8. The   First   Appellate   Court   while   considering   the
appeals   filed   by   the   husband   had   taken   note   of   the
evidence   which   had   been   referred   to   before   the   Trial
Court and in that light having reappreciated the matter
had upheld the judgment of the Trial Court.
9. In the Second Appeal filed before the High Court, it
raised   the   following   substantial   questions   of   law   for
consideration:
“1. Whether the courts below are correct
and   justified   in   failure   to   dissolve   the
marriage of the appellant and respondent
on   the   ground   of   mental   cruelty   (when
particularly   the   alleged   complaint   dated
24.11.2007 for dowry harassment lodged
by   the   respondent   against   the   appellant
and her in­laws and the consequent arrest
Page 8 of 18
by   the   police   would   unquestionably
constitutes cruelty as postulated in section
13(1)(ia) of the  Hindu Marriage Act?
2.    Whether the judgments of the courts
below in dismissing the petition for divorce
overlooking   the   subsequent   event
regarding   the   lodging   of   false   criminal
complaint   by   the   respondent­wife   for
dowry   harassment   against   the   appellant
and her in­laws are sustainable in law? 
3. Whether the judgment of the courts
below   are   correct   and   justified   when
particularly   the   criminal   prosecution
initiated in C.C.No.149 of 2008 on the file
of the Judicial Magistrate No.2, Pollachi for
dowry  harassment   is  ended  in  Honorary
acquittal?
4. Whether the judgment of the courts
below are perverse?”
10. It   is   in   that   background,   the   High   Court   had
arrived at the conclusion that the criminal case filed by
the   wife,   which   was   proceeded   in   C.C.   No.149/2008
alleging that the husband had demanded dowry and in
the said proceedings when the allegation is found to be
false for want of evidence the same would be an act of
inflicting   mental   cruelty   as   contemplated   under
Section13(1)(ia) of the Hindu Marriage Act and in that
light had allowed the appeal.
Page 9 of 18
11. Heard Mr. S. Nandakumar, learned counsel for the
appellant­wife, Mr. B. Ragunath, learned counsel for the
respondent­husband and perused the appeals papers.
12. In the light of the contentions put forth by the
learned counsel, a perusal of the papers would disclose
that the petition for dissolution of marriage instituted by
the husband was on the allegation that the behaviour of
the wife was intemperate as she was quarrelsome with
the   neighbours,   friends   and   with   the   visitors.   It   was
alleged   that   she   had   also   gone   over   to   the   place   of
employment of the husband and demeaned him in the
presence   of   the   students   and   other   co­workers.     In
respect of the said allegations, the Trial Court having
taken note of the evidence tendered through PW1 to PW4
had arrived at the conclusion that the said evidence was
insufficient to prove the allegations which were made in
the petition.  A bare perusal of the judgment passed by
the Trial Court would indicate that the evidence available
on   record   has   been   referred   to   extensively   and   a
conclusion has been reached. The First Appellate Court
Page 10 of 18
has also referred to the said evidence, reappreciated the
same   and   has   arrived   at   its   conclusion.     In   such
circumstance,   in   a   proceeding   of   the   present   nature
where the Trial Court has referred to the evidence and
the   First   Appellate   Court   being   the   last   Court   for
reappreciation of the evidence has undertaken the said
exercise and had arrived at a concurrent decision on the
matter, the position of law is well settled that neither the
High Court in the limited scope available to it in a Second
Appeal under Section 100 of the Civil Procedure Code is
entitled to reappreciate the evidence nor this Court in the
instant appeals is required to do so. 
13. It is in that view, we have not once again referred
to the evidence which was tendered before the Trial Court
which   had   accordingly   been   appreciated   by   the   Trial
Court.  In such situation the High Court had the limited
scope for interference based on the substantial question
of law. The substantial questions of law framed by the
High Court has been extracted and noted in the course of
this judgment.   At the outset, the very perusal of the
Page 11 of 18
questions   framed   would   disclose   that   the   questions
raised does not qualify as substantial questions of law
when the manner in which the parties had proceeded
before the Trial Court is noticed. The questions framed in
fact provides scope for re­appreciation of the evidence
and not as substantial questions of law.  As noticed, in
the instant facts the husband filed a petition at the first
instance,   seeking   dissolution   of   marriage   in   H.M.O.P
No.65/2007   and   the   same   was   predicated   on   the
allegation  about   the   wife   using   filthy   language   in   the
presence of the relatives and friends and also using such
language in the presence of the students of the husband.
It is in that light, the husband alleged cruelty and sought
for dissolution of marriage on that ground.  It is no doubt
true that the said petition which was initially filed was
not pressed though the contentions of the parties in that
regard   is   at   variance,     inasmuch   as   the   husband
contends that the petition was not pressed as the wife
had assured of appropriate behaviour henceforth, while
the wife contends that the said proceedings had been
Page 12 of 18
initiated   at   the   instigation   of   his   parents   and   had
accordingly not been pressed thereafter. 
14. Be that as it may, though the subsequent petition
was filed by the husband in H.M.O.P No.13/2010 which
was originally numbered as H.M.O.P No.532/2007, the
same   was   also   filed   on   the   same   set   of   allegations.
Further at that point in time the wife had also filed a
petition under Section 9 of the Hindu Marriage Act.  In
that   background,   though   subsequently   in   the
proceedings before the Trial Court a reference is made to
the criminal proceedings, as on the date when the cause
of action had arisen for the husband who initiated the
proceedings   seeking   dissolution   of   the   marriage,   the
criminal case filed against him was not the basis whereby
a ground was raised of causing mental cruelty by filing
such   criminal   complaint.     If   that   be   the   position,   a
situation   which   was   not   the   basis   for   initiating   the
petition for dissolution of marriage and when that was
also not an issue before the Trial Court so as to tender
evidence and a decision be taken, the High Court was not
Page 13 of 18
justified in raising the same as a substantial question of
law   and   arriving   at  its   conclusion  in   that  regard.    A
perusal of the judgment of the High Court indicates that
there   is   no   reference   whatsoever   with   regard   to   the
evidence based on which the dissolution of marriage had
been sought, which had been declined by the Trial Court
and   the   First   Appellate   Court   and   whether   such
consideration had raised any substantial question of law.
But the entire consideration has been by placing reliance
on   the   judgment   which   was   rendered   in   the   criminal
proceedings   and   had   granted   the   dissolution   of   the
marriage.  The tenor of the substantial questions of law
as framed in the instant case and decision taken on that
basis if approved, it would lead to a situation that in
every case if a criminal case is filed by one of the parties
to the marriage and the acquittal therein would have to
be automatically treated as a ground for granting divorce
which will be against the statutory provision.
15. It cannot be in doubt that in an appropriate case
the unsubstantiated allegation of dowry demand or such
Page 14 of 18
other allegation has been made and the husband and his
family members are exposed to criminal litigation and
ultimately   if   it   is   found   that   such   allegation   is
unwarranted and without basis and if that act of the wife
itself   forms   the   basis   for   the   husband   to   allege   that
mental cruelty has been inflicted on him,   certainly, in
such   circumstance   if   a   petition   for   dissolution   of
marriage is filed on that ground and evidence is tendered
before the original court to allege mental cruelty it could
well   be   appreciated   for   the   purpose   of   dissolving   the
marriage on that ground.  However, in the present facts
as already indicated, the situation is not so.  Though a
criminal   complaint   had   been   lodged   by   the   wife   and
husband has been acquitted in the said proceedings the
basis on which the husband had approached the Trial
Court is not of alleging mental cruelty in that regard but
with   regard   to   her   intemperate   behaviour   regarding
which   both   the   courts   below   on   appreciation   of   the
evidence had arrived at the conclusion that the same was
not proved.  In that background, if the judgment of the
Page 15 of 18
High Court is taken into consideration, we are of the
opinion   that   the   High   Court   was   not   justified   in   its
conclusion.
16. The learned counsel for the respondent however,
contended that ever since the year 2007 the parties have
been   litigating   and   were   living   separately.     In   that
situation it is contended that the marriage is irretrievably
broken down and, therefore, the dissolution as granted
by   the   High   Court   is   to   be   sustained.     The   learned
counsel has relied on the decisions in the case of Naveen
Kohli vs. Neelu Kohli (2006) 4 SCC 558, in the case of
Sanghamitra Ghosh vs. Kajal Kumar Ghosh (2007) 2
SCC 220 and in the case of  Samar   Ghosh   vs.   Jaya
Ghosh  (2007) 4 SCC 511 to contend that in cases where
there has been a long period of continuous separation
and   the   marriage   becomes   a   fiction   it   would   be
appropriate to dissolve such marriage.  On the position of
law enunciated it would not be necessary to advert in
detail inasmuch as the decision to dissolve the marriage
Page 16 of 18
apart from the grounds available, will have to be taken on
case to case basis and there cannot be a strait jacket
formula. This Court can in any event exercise the power
under   Article   142   of   the   Constitution   of   India   in
appropriate cases.  However, in the instant facts, having
given   our   thoughtful   consideration   to   that   aspect   we
notice   that   the   parties   hail   from   a   conservative
background   where   divorce   is   considered   a   taboo   and
further they have a female child born on 03.01.2007 who
is presently aged about 13 years.  In a matter where the
differences   between   the   parties   are   not   of   such
magnitude and is in the nature of the usual wear and
tear of marital life,  the future of the child and her marital
prospects   are   also   to   be   kept   in   view,   and   in   such
circumstance the dissolution of marriage merely because
they have been litigating and they have been residing
separately for quite some time would not be justified in
the present facts, more particularly when the restitution
of conjugal rights was also considered simultaneously. 
Page 17 of 18
17. In that view, having arrived at the conclusion that
the   very   nature   of   the   substantial   questions   of   law
framed   by   the   High   Court   is   not   justified   and   the
conclusion reached is also not sustainable, the judgment
of the High Court is liable to be set aside.
18. In   the   result,   the   judgment   dated   20.07.2018
passed in CMSA Nos.23 & 24 of 2016 is set aside.  The
judgment   dated   26.11.2010   passed   in   H.M.O.P
Nos.13/2010 and H.M.O.P No.27/2008 and affirmed in
CMA   No.90/2011   and   CMA   No.71/2011   are   restored.
The Appeals are accordingly allowed with no order as to
costs. 
19.           Pending   applications   if   any,   shall   also   stand
disposed of.
………….…………….J.
(R. BANUMATHI)
          .……………………….J.
                                               (S. ABDUL NAZEER)
………….…………….J.
                                              (A.S. BOPANNA)
New Delhi,
March 03, 2020

Page 18 of 18

whether the appellant working as Assistant Director in CACEE was entitled to continue till 60 years of age which was the age of retirement of Teacher of the Kerala University or he was to retire at the age of 56 years.?

whether the appellant working as Assistant Director in CACEE was entitled to continue till 60
years of age which was the age of retirement of Teacher of the Kerala University or he was to retire at the age of 56 years.?

S. Ramamohana Rao vs. A.P. Agricultural University and another, 1997
(8) SCC 350. 
In the above case the appellant was working as a Director of Physical Director in the
Bapatla Agricultural College. The appellant was initially appointed as Physical Director in
Agricultural College which was a Government College which College stood transferred to the Andhra Pradesh University, when it was formed, the services of the appellant stood transferred to the Agricultural University and he continued to work as Director in the said University. This Court noted the definition of Teacher in the University Statutes and came to the conclusion that Physical Director is also Teacher within the meaning of Section 2(n) of the Andhra Pradesh Agricultural University Act, 1963. The said judgment has no bearing in the present case since admittedly the appellant in the said case was working in the University as Director of Physical Education.
37. We may also notice one of the letters dated 31.10.2014 brought on record as Annexure-P-17 to the petition which is a communication by the Government of Kerala according sanction for merging the Centre for Adult, Continuing Education & Extension which is to the following effect:
                    “ORDER
Sanction is accorded for merging the
Centre for Adult, Continuing Education &
Extension (CACEE) which is functioning as
Self Financing Centre under the University
of Kerala, with Institute of Distance
Education so that the department can
function in dual mode as Institute of
Distance and Adult Continuing Education.
            (By order of the Governor)
                      Dr. K.M. ABRAHAM
                             Additional Chief Secretary.”
38. As per the Government letter Centre has been merged with Institute of Distance Education, what are the consequences of merger of Centre with Institute of Distance Education have neither been explained by the appellant nor there are any material to come to the conclusion that by such merger the Centre shall become Centre maintained by the University. 
The above letter of the Government also supports our conclusion that Centre is not maintained by the University and it is Self-Financing Centre. The said letter also in no manner supports the case of the appellant as the claim of the appellant as raised in this appeal.
39. In view of the foregoing discussion, we do not find any merit in the appeal which is dismissed
accordingly.


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1641 of 2020
(arising out of SLP(C)No.26880 of 2016)
P. GOPINATHAN PILLAI ...APPELLANT(S)
VERSUS
UNIVERSITY OF KERALA & ORS. ...RESPONDENT(S)
J U D G M E N T
 ASHOK BHUSHAN, J.
This appeal has been filed by the appellant for
quashing the judgment of Kerala High Court dated
08.07.2016 by which Writ Petition (C)No.12179 of 2016
filed by the appellant claiming to continue in
service till he attains the age of 60 years has been
dismissed.
2. The brief facts of the case for deciding this
appeal are:
The appellant was appointed as Project Officer in
the Centre for Adult Continuing Education and
2
Extension (hereinafter referred to as “CACEE”). The
appellant joined at the CACEE with effect from
26.12.1989. By letter dated 01.02.1990 of the Deputy
Registrar of the University of Kerala, University
accorded sanction to the appointment of the appellant
as Project Officer against the post at the CACEE. The
University of Kerala has also implemented the
University Grants Commission (UGC) scale of pay to
the CACEE staff. The appellant was also given the
UGC pay scale. The Centre has issued various
certificates to the appellant that he has been
teaching various courses like the Post Graduate
Diploma etc. On 07.12.2012, the appellant was
promoted as Assistant Director in the CACEE. The
University Grants Commission revised the scale of pay
of the CACEE at par i.e. Director, Assistant Director
and Project Officer corresponding to the pay scale of
Associate Professor, Assistant Professor, Reader,
Lecturer. Writ Petition (C) No.12179 of 2016 was
filed by the appellant before the High Court of
Kerala seeking a declaration that the appellant is a
Teacher of the University of Kerala and entitled to
3
continue in service upto the age of 60 years.
3. The appellant’s case was that he cannot be
retired at the age of 56 years. The appellant in his
writ petition relied on earlier judgments of the
Kerala High Court including judgment delivered by the
High Court with regard to the post of Director and
Assistant Director of CACEE itself. The appellant
also filed certificates issued by the Centre to the
appellant that he while working in the Centre has
been associated with Teaching Research Extension and
other activities. When the writ petition came for
consideration before a learned Single Judge, noticing
a conflict between two judgments i.e. in (1) W.A.
1099 of 1988 and (2) W.A. 180 of 1992, the learned
Single Judge referred the matter to be heard by a
Division Bench.
4. The case of the appellant was contested by the
University. The Division Bench after scanning the two
judgments with regard to which conflict was noticed,
observed that the said judgments were delivered in
the peculiar facts and circumstances arising in each
case and there was no justification for reference.
4
The Division Bench proceeded to consider the merits
of the controversy and held that the appellant is not
a Teacher of the University and is not entitled to
continue till the age of 60 years. The writ petition
was consequently dismissed. Aggrieved by the judgment
of the Division Bench, this appeal has filed by the
appellant.
5. We have heard Shri A. Raghunath, learned counsel
appearing for the appellant and Shri Jogy Scaria,
learned counsel for the respondent.
6. Learned counsel for the appellant submits that
the appellant is working as Assistant Director in
CACEE, a Teacher defined in Section 2(27) and 2(28)
of the Kerala University Act, 1974, hence, he is
entitled to all the benefits of a Teacher of the
University including the age of retirement being 60
years. It is submitted that the University of Kerala
itself placed the appellant in the senior scale for
lecturer under the UGC Scheme with effect from
24.05.1997.
7. Learned counsel for the appellant submits that
5
UGC way back in 1993 directed that the staff working
in CACEE be treated at par with other Teaching staff
working in other faculties of the Universities. It is
submitted that the High Court of Kerala has delivered
several judgments declaring that the staff of CACEE
particularly posts of Project Director, Assistant
Director etc. are ‘Teachers’ and entitled to continue
till the age of 60 years.
8. Learned counsel for the appellant referring to
various certificates issued by CACEE submits that the
appellant has been recognised as being engaged in
teaching and research work. It is submitted that the
High Court erred in dismissing the writ petition of
the appellant by holding that the appellant is not
the Teacher of the University as defined in Section
2(28) of the Kerala University Act.
9. Learned counsel for the University refuting the
submissions of the learned counsel for the appellant
contends that CACEE in which the appellant was
employed is not a Statutory University Department of
study and research as defined in the statutes of the
University. CACEE is not affiliated to the
6
University. CACEE is one of the many Schemes
sponsored by outside funding Agencies like UGC.
Initially CACEE was started on a temporary basis as a
planned Scheme established by the Government of India
for the purpose of eradicating illiteracy in the
society and was operative till 31.03.1997. No Agency
having come forward to sponsor the Scheme. The
Syndicate of the University taking into account the
despair of the staff took a view and resolved to
restructure CACEE as a Self-Supporting Centre. The
normal date of the retirement of the employees of
CACEE is 56 years, some of the employees of CACEE who
were allowed to continue upto to the age of 60 years
wherever there was direction of the High Court in
respective cases. The appellant was never appointed
on a teaching post rather he was appointed on an
administrative post which was a temporary post. The
judgments of the Kerala High Court relied by the
counsel for the appellant are distinguishable and
they were delivered in the facts of each case.
10. We have considered the submissions of learned
counsel for the parties and perused the records.
7
11. The only point to be determined in this appeal is
as to whether the appellant working as Assistant
Director in CACEE was entitled to continue till 60
years of age which was the age of retirement of
Teacher of the Kerala University or he was to retire
at the age of 56 years.
12. The claim in the writ petition was that he is a
Teacher of the University within the meaning of
Kerala University Act, 1974. Hence, he was entitled
for the benefit of retirement of the age as
prescribed for the Teachers of the University. We may
first notice the provisions of the Kerala University
Act, 1974, the Kerala University First Statutes, 1977
and Kerala University First Ordinances, 1978.
13. Section 2 of the Kerala University Act, 1974 is a
definition clause. Section 2 sub-section (2) defines
‘affiliated college’. Section 2(7) defines ‘college’.
Section 2(19) defines ‘recognised institution’.
Section 2(27) defines ‘teacher’ and Section 2(28)
defines ‘teacher of the University’.
14. In the Kerala University First Statutes, 1977,
8
Statute 2 sub-clause (f) defines ‘Department’ which
is to the following effect:
“Section 2(f)”Department” means a
Kerala University Department of Study
and/or Research or a Department functioning
for a specific purpose maintenance at the
cost of the Kerala University Fund;”
15. Chapter 3 of the Statutes deals with “Teachers of
the University”. Statute 10 under Chapter 3 is as
follows:
“10. Applicability of certain Rules to
University Teachers.- Subject to the
provisions of the Kerala University Act,
1974 and the Statutes’ issued thereunder,
the Kerala Service Rules, the Kerala State
and Subordinate Service Rules, and the
Kerala Government Servant’s Conduct Rules
for the time being in force as amended from
time to time shall mutatis mutandis apply
to the teachers of the University, with
such modifications as the context may
require and the expression “Government” in
those Rules shall be construed as a
reference to the “University”.
Provided that the age of retirement of
teachers of the University shall be 60.”
16. The Kerala University First Ordinances, 1978,
Chapter XVII deals with scales of pay, qualification
etc. of various posts in the University. The Schedule
9
to the Ordinances contains details of all the posts
in the University including the posts in different
Departments, Institutes, Colleges.
17. The appellant admittedly was appointed in CACEE
with effect from 26.12.1989 which received the
sanction of the University by letter dated
01.02.1990. Letter dated 01.02.1990 has been brought
on the record as Annexure-P-2. The Order dated
01.02.1990 reads:
“ORDER
Selection was made to the posts of
Assistant Directors and Project Officers in
the Centre for Adult Education and
Extension, University of Kerala. The
Director, Centre for Adult Education and
Extension has, vide his letter read above,
reported that the following officers have
reported for duty.
1.Dr. V. Reghu - Assistant Director
2.Smt. A.R. Supriya - Assistant Director
3.Sri.P. Gopinathan
Pillai - Project Officer
4.Sri. K. Mohandas - Project Officer
Sanction has therefore been accorded by
the
Vice Chancellor to:-
10
*** *** ***
*** *** ***
”All the above appointments are made
against the posts at the Centre for Adult
Education and Extension created temporarily
till 31.03.1990 coming under Point No.16 of
the new 20 point programme relating to
eradication of illiteracy and spread of
Universal Elementary Education.
K.M. MATHEW
DEPUTY REGISTRAR (Admn-1)”
18. The judgment of the High Court does not mention
any details of the establishment, nature and
organisation of the Centre i.e. CACEE. However, in
the counter-affidavit (sworn by Dr. M. Jayaprakas,
Registrar-in-charge of the University of Kerala)
filed in this appeal, the details of Centre have been
elaborately pleaded. Paragraphs 5 and 6 of the
counter-affidavit which are relevant for the present
case are as follows:
“5. It is submitted that Centre for Adult
continuing Education and Extension
(CACEE) in which the petitioner was an
employee is not a Department or
Institution instituted by Kerala
University Authorities viz, the Senate,
Syndicate or any other statutory body
under the provisions of the aforesaid
11
Act or Statutes. But the CACEE is one of
the many schemes sponsored by outside
funding agencies like UGC.
6. The Centre for Adult continuing
Education and Extension (hereinafter
referred as CACEE) is not a Department
or an institution or even a Study Centre
instituted under the Kerala University
Act, Statutes or Regulations. CACEE was
only one among the schemes sponsored and
functioning by way of funding from
outside agencies like the UGC. Initially
CACEE was started on a temporary basis
as a planned Scheme established by the
Government of India, for the purpose of
eradicating illiteracy in the society
and was operative till 31.03.1997.
Thereafter no agency had come forward to
sponsor the scheme. All members,
including the staff were under the
threat of termination from service. In
such circumstances, the Syndicate of the
Respondents taking into account the
despair of the staff, took a lenient
view and resolved to restructure, CACEE,
as a Self-Supporting Centre, on the
specific ground that the total
expenditure of the Scheme, should be
limited to the revenue generated and
remitted to the Kerala University, by
the Scheme. The Syndicate further
resolved that the salary for the staff
of CACEE would be paid out of the fund
remitted to the University, and in
return, the University would render all
the Administrative work of CACEE,
without any overhead charges or fee. As
per the terms of the Scheme, the staff
therein, were to retire at the age of
56. The service conditions, of a member
under the Kerala University Service, are
governed by the Kerala University Act,
12
Statutes and Ordinances. All members
under the Kerala University service are
appointed against posts instituted as
per the Kerala University Act, Rules and
Regulations. Facts being so, the staff
under CACEE, are not governed by the
Kerala University Act. Ordinance, and
Statutes as they are not members under
the Kerala University Service.”
19. Although rejoinder-affidavit has been filed by
the appellant to the above counter-affidavit of the
University but neither there is any reply to the
counter-affidavit nor details mentioned in paragraphs
5 and 6 of the counter-affidavit regarding nature of
the establishment of the Centre has been refuted. We,
thus, proceed to rely on the pleadings made in the
counter-affidavit regarding the establishment and the
nature of the Centre.
20. The Centre i.e. CACEE came to be established on
temporary basis as planned Scheme established by the
Government of India for the purpose of eradicating
illiteracy. The University Grants Commission also
funded the Centre and as pleaded in the counter-
13
affidavit after 31.03.1997 no Agency having come
forward to sponsor the Scheme the Syndicate of the
University resolved to restructure CACEE as a SelfSupporting Centre. The University has undertaken to
render all the Administrative work of CACEE.
21. The Schedule to the First Ordinances, 1978 of
the Kerala University contains designations of all
posts of University including teaching and nonteaching posts in various Departments and Centres
like University, Service and Instructions Centres,
Computer Centre, English Language Teaching Centre but
posts in CACEE are not included in the Schedule of
the Ordinances which obviously indicates that posts
in Centre are not posts in the University. Chapter 3
of the Statutes of the University specifically
provides for the Institution of Posts. Statute 1
under Chapter 3 is as follows:
14
“1. Institution of Posts.- The Senate shall
be competent to institute Professorships,
Readerships, Lecturerships, and such other
teaching and research posts required by the
University on the motion of the Syndicate
and/or on the proposals of the Academic
Council therefore endorsed by the
Syndicate.”
22. Had all the posts in the Centre have been
instituted by Senate, they ought to have been
included in the University, the posts of the Centre
are not the posts instituted by the Syndicate and not
the posts of the University.
23. We come to the definition of Teacher as defined
in Section 2 of the Kerala University Act, 1974.
Section 2(27) provides as:
“2(27) “teacher” means a principal,
professor, associate professor, assistant
professor, reader, lecturer, instructor, or
such other person imparting instruction or
supervising research in any of the colleges
or recognised institutions and whose
appointment has been approved by the
University;”
24. The condition precedent is that such person
15
should be imparting instruction or supervising
research in any of the Colleges of the recognised
institutions. Section 2(28) reads as:
“2(28).”teacher of the University” means a
person employed as teacher in any
institution maintained by the University.”
25. College and recognised institution have been
defined in Section 2(7) and 2(19) as follows:
“2(7). “college” means an institution
maintained by, or affiliated to the
University, in which instruction is
provided in accordance with the provisions
of the Statutes, Ordinances and
Regulations;
2(19). “recognised institution” means an
institution for research or special
studies, other than an affiliated college
recognised as such by the University;”
26. The Centre is not a College within the meaning
of Section 2(7) since as per the pleadings of the
University, Centre is neither maintained nor
affiliated to the University. There are no materials
on record also to indicate that the Centre is an
institution recognised by the University within the
16
meaning of Section 2(19). It is true that the Centre
is being run as a Centre under the administrative
control of the University. The definition of Teacher
of University in Section 2(28) also refers to a
person employed as Teacher in any institution
maintained by the University. The High Court in the
impugned judgment has held that the appellant was
never employed as Teacher hence he is not covered by
Section 2(28). From the pleadings on the record and
the materials which are brought on the record it is
apparent that the appellant is not covered by
definition of Teacher or the Teacher of the
University under Section 2(27) and 2(28) of the
Kerala University Act, 1974. When the appellant does
not fulfil the requirement of definition of Teacher
or Teacher of University, he cannot claim
applicability of Statute 10 of Chapter 3 of the
Statutes.
17
27. Much emphasis has been laid down by the learned
counsel for the appellant on different certificates
issued by the Centre where it has been mentioned that
the appellant is imparting instruction in various
courses like Post Graduate Diploma in Extension and
Field Outreach, Diploma in Non-Formal Education,
Master of Human Resource Management and PG
Certificate Courses etc. Even if it is assumed that
the appellant is imparting instruction in different
courses in the Centre that itself cannot make the
appellant Teacher within the meaning of Section 2(27)
and 2(28). The appellant having never been appointed
as Teacher he is not covered by the definition of
Teacher of the University.
28. Now we need to notice various judgments of the
Kerala High Court which have been relied by the
learned counsel for the appellant in support of his
case. The first judgment which has been relied by the
18
learned counsel for the appellant and has also been
relied in subsequent judgments of the Kerala High
Court itself is a Division Bench judgment in
C.A.No.180 of 1992D decided on 20.07.2000 in Dr. K.
Sivadasan Pillai vs. The University of Kerala and
others. Dr. Pillai was working as a Reader in the
Department of Education of the University of Kerala
whereafter he was appointed as Director of the Centre
i.e. CACEE. The writ petition filed by Dr. Pillai was
dismissed hence the appeal was filed. The Division
Bench granted interim stay under which Dr. Sivadasan
was continued in the post and retired at the age of
60 years. The Division Bench in its decision made
following observation in paragraph 2 of the judgment:
“2…………The appellant/petitioner was a Reader
in the University. Thereafter he was
selected and appointed as the Director of
Centre for Adult Education and Extension.
The Pro-Vice Chancellor of the University
had given a certificate, Annexure IX,
wherein it is stated that
appellant/petitioner, Director, Centre for
19
Adult Education and Extension, University
of Kerala, was teaching students of Post
Masters Diploma in Adult Education and
Continuing Education while he was the ProVice-Chancellor of the University. Several
other documents were also produced by the
appellant/petitioner to show that he was
holding the post of teaching as a Director
in the Adult Education Department. It is
contended that appellant/petitioner did not
produce these documents in the original
petition because there was no such counter
by the University.”
29. Dr, Sivadasan worked as Reader in the University
and finally continued till 60 years because as Reader
he was admittedly worked as a Teacher of the
University. It appears that before he attained the
age of superannuation as Teacher, he was appointed as
Director of the Centre, he had lien on the post of
Reader as well as he was entitled to continue till
the age of 60 years with all retiral benefits. The
conclusion of the High Court itself was to the
following effect:
“3……………The documents produced by the
petitioner shows that he was holding the
post of Teacher while he was working as
Director in the Centre for Adult Education
and Extension.”
20
30. The above case, thus, was a case where the
appellant was holding a Teaching post in the
University and thereafter, he was appointed as
Director and had rightly held by the High Court to
continue him till 60 years.
31. The next judgment relied by the counsel for the
appellant is the judgment of Kerala High Court dated
14.06.2005 in W.P.(C) No.3141 of 2004(Y), Dr. B.
Vijayakumar vs. The University of Kerala and others.
In the above case the writ-petitioner was also
working as Director, and reliance was placed on the
judgment in Writ Appeal No.180 of 1992. The learned
Single Judge relying on the Division Bench judgment
in Dr. Sivadasan Pillai allowed the writ petition. In
paragraph 3 of the judgment learned Single Judge
himself has observed as follows:
“3. The Learned Counsel for the University
would submit that the said Dr. K. Sivadasan
Pillai was retaining his lien in the
Department of Education and therefore his
case cannot be treated at par with that of
the petitioner. When a Division Bench of
this Court categorically holds that the
post of Director in CACEE is the post of a
teacher and therefore the incumbent is
21
entitled to continue till he attains the
age of 60 years, then I need not look any
further to hold that the petitioner also is
holding the post of teacher and therefore
entitled to continue till he attains 60
years of age. Therefore, I have absolutely
no hesitation in holding that the
petitioner is holding the post of a teacher
as Director in the CACEE. As such, he is
entitled to continue in service till he
attains the age of 60 years. It is declared
so. The petitioner will be entitled to all
consequential benefits. The Writ Petition
is allowed as above but without no order as
to costs.”
32. Learned Single Judge although noted the
distinguishing feature of case of Dr. Pillai that he
had lien in the Department of Education, but without
adverting to the distinguish facts of Division Bench
judgment and without adverting as to how the writ
petitioner was a Teacher within the meaning of Kerala
University Act, the writ petition was allowed. The
above judgment of the learned Single Judge having
mechanically followed the Division Bench judgment in
W.A.No.180 of 1992 cannot come to the rescue of the
appellant.
33. Another judgment relied by the appellant is the
judgment of the Kerala High Court dated 14.02.2006 in
22
Writ Petition (C) No.25669 of 2004(E) in Dr. V. Reghu
vs. The University of Kerala and another. Learned
Single Judge in the above case also relying on the
Division Bench judgment in W.A. No.180 of 1992 filed
by Dr.K. Sivadasan Pillai has made the following
observation in paragraph 8:
“8……………There is overwhelming evidence and
materials on record to show that the
petitioner by discharging the duties of
Assistant Director of CACEE has been
imparting instruction at the Centre right
from his appointment in the year 1980.”
34. Learned Single Judge has, thus, relied on the
claim of the writ petitioner that while discharging
the duty of Assistant Director the petitioner has
been imparting instruction at the Centre. How only by
imparting instruction the petitioner had become
Teacher within the meaning of Section 2(27) and 2(28)
was neither been dealt with nor considered.
35. Another case which has been relied by the
appellant is judgment dated 25.05.2012 in W.P.
(C)No.15447 of 2007(L), M.N.C. Bose vs. University of
Kerala and Ors. In the above case, the writ
23
petitioner was working as Director of Students
Services which was a non-teaching post as per
Ordinances of the University which fact was noticed
in paragraph 2 of the judgment. Learned Single Judge
proceeded to held that while working as Director of
Students Services the writ petitioner as per duties
and functions was imparting instruction. The said
case has no relevance in the facts of the present
case since the post of Students Services was
admittedly post within the University whereas the
none of the posts in Centre is included in the
Ordinances hence the said case is clearly
distinguishable.
36. Learned counsel for the appellant has also relied
on the judgment of this Court in S. Ramamohana Rao
vs. A.P. Agricultural University and another, 1997
(8) SCC 350. In the above case the appellant was
working as a Director of Physical Director in the
Bapatla Agricultural College. The appellant was
initially appointed as Physical Director in
Agricultural College which was a Government College
which College stood transferred to the Andhra Pradesh
24
University, when it was formed, the services of the
appellant stood transferred to the Agricultural
University and he continued to work as Director in
the said University. This Court noted the definition
of Teacher in the University Statutes and came to the
conclusion that Physical Director is also Teacher
within the meaning of Section 2(n) of the Andhra
Pradesh Agricultural University Act, 1963. The said
judgment has no bearing in the present case since
admittedly the appellant in the said case was working
in the University as Director of Physical Education.
37. We may also notice one of the letters dated
31.10.2014 brought on record as Annexure-P-17 to the
petition which is a communication by the Government
of Kerala according sanction for merging the Centre
for Adult, Continuing Education & Extension which is
to the following effect:
“ORDER
Sanction is accorded for merging the
Centre for Adult, Continuing Education &
Extension (CACEE) which is functioning as
Self Financing Centre under the University
of Kerala, with Institute of Distance
Education so that the department can
function in dual mode as Institute of
Distance and Adult Continuing Education.
25
(By order of the Governor)
Dr. K.M. ABRAHAM
Additional Chief Secretary.”
38. As per the Government letter Centre has been
merged with Institute of Distance Education, what are
the consequences of merger of Centre with Institute
of Distance Education have neither been explained by
the appellant nor there are any material to come to
the conclusion that by such merger the Centre shall
become Centre maintained by the University. The above
letter of the Government also supports our conclusion
that Centre is not maintained by the University and
it is Self-Financing Centre. The said letter also in
no manner supports the case of the appellant as the
claim of the appellant as raised in this appeal.
39. In view of the foregoing discussion, we do not
find any merit in the appeal which is dismissed
accordingly.
......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( M.R. SHAH )
New Delhi,
April 08, 2020.