There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.

 There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.

1

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 233 of 2021

(Arising out of SLP (Crl) No 11218 of 2019)

Sonu @ Subhash Kumar .... Appellant

Versus

State of Uttar Pradesh & Anr ....Respondent(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal, by way of an SLP, arises from a judgment of a learned Single Judge

of the High Court of Judicature at Allahabad dated 26 September 2019 in

Criminal Miscellaneous Application No 35811 of 2019. The above application

was instituted under Section 482 of the Code of Criminal Procedure 19731

 for

quashing the charge sheet dated 25 April 2018 in Case No 1066/IX/19 arising out

of Case Crime No 121 of 2008 under Section 376 of the Indian Penal Code 18602

at PS Kotwali, District Mathura. The High Court dismissed the application with a

direction that the appellant herein may move the trial Court to seek discharge at

the appropriate stage. However, the High Court directed that if the appellant

moves an application for bail before the competent Court, the application should

1 “CrPC”

2 “IPC”

2

be disposed of in accordance with law. In the meantime, the appellant was

protected against coercive action for a period of thirty days and was directed to

appear before the Competent Court within the aforesaid period.

3 In order to consider the grievance of the appellant, it would be necessary to

advert to the contents of the FIR. The FIR was lodged by the second respondent

on 7 February 2018. The FIR, which is registered on the basis of a written

complaint of the second respondent to the SHO, PS Kotwali, Mathura, states that

the second respondent developed friendship with the appellant and that he

assured that he would marry her. It has then stated that she was exploited

physically for one and a half years and that the second respondent had also

spoken to the parents and sister of the appellant. It has been stated that the

father of the appellant had informed the second respondent that he would

arrange the marriage of the appellant with her. After a lapse of about a year and

a half, the appellant is stated to have gone back to his home town which is

Jhansi on 5 January 2018 and made a phone call to the second respondent that,

since he wishes to perform a “court marriage”, the second respondent may

come to Jhansi. This was on the ground that the appellant could not travel to

Mathura where the second respondent lived. The second respondent has

alleged that she proceeded to Jhansi, but on reaching the residence of the

appellant, she was informed by the father of the appellant that the appellant

does not wish to marry her. The appellant’s father also stated that the appellant

did not desire to meet her and further asked her to take some money and leave

from there. The FIR further records that the second respondent was assaulted by

the appellant’s sister and thrown out of the appellant’s house. The statement of

the second respondent was recorded under Section 164 of CrPC. The entirety of

the statement is extracted below:

3

“Statement U/s 164 Cr.P.C.

Name of victim: Geeta D/o Ram Babu, Age 25 years,

stated on oath that -

I had love affair with Sonu S/o Kamlesh, age 27 years, for

the last 1-1/2 years. He used to tell to marry with me. I

got influenced by his talks. I voluntarily developed

relationship of husband-wife with him. Now, he and his

family members are refusing to marry with me. On 5th

January, 2018 Sonu went to Jhansi and from there also he

kept on taking [sic talking] with me on phone. He called

me to Jhansi and then on 21.01.2018 without informing

anybody in my home, I went to Jhansi on the address

given by Sonu. His father met me there and told me that

they are not intending to solemniz’e my marriage with

Sonu and advised me to ran away from there after taking

some money. Sonu’s mother Shobha and sister Neha

assaulted me. On 21.1.2018 I stayed at Jhansi station

and then on the training [sic train] of 12 O' clock in the

night I came back to Mathura. My sole grievance is that

Sonu is refusing to marry with me. I have studied upto

class 6th. I have nothing more to say.

It is certified that the above statement has been given by

the victim with her own voluntary wish and without any

force or pressure.

Recorded by

Sd/- .

6.3.18

Heard and verified

Sd/- _

Victim”

4 Mr Amit Pawan, learned counsel appearing on behalf of the appellant, has relied

upon a decision of this Court in Pramod Suryabhan Pawar v State of

Maharashtra3

. Learned counsel submitted that the relationship between the

appellant and the second respondent was consensual in nature. It has been

urged that a bare reading of the FIR as well as the statement under Section 164

of CrPC would indicate that there was absolutely no intent on the part of the

3 (2019) 9 SCC 608

4

appellant, when he entered upon the relationship, not to marry the second

respondent nor can it be even suggested that the promise to marry was false.

Hence, it has been submitted that no offence has been made out within the

meaning of Section 376 of IPC.

5 On the other hand, Mr Simant Kumar, learned counsel appearing on behalf of the

second respondent, supported the judgment of the High Court stating that the

FIR would indicate that the complaint of the second respondent on the basis of

which the FIR was registered would indicate that the second respondent had

developed a friendship with the appellant who had assured that he would marry

her.

6 Mr Vishnu Shankar Jain, learned counsel appearing on behalf of the State of Uttar

Pradesh, has similarly supported the decision of the High Court, relying on the

observations contained in paragraph 16 of the decision of this Court in Pramod

Suryabhan Pawar (supra).

7 On the basis of the rival submissions and with the assistance of the counsel, we

have perused the FIR. The FIR specifically records that the second respondent

had developed a friendship with the appellant and that he had assured that he

would marry her. The FIR then records that the appellant and the second

respondent developed a physical relationship which spread over a period of one

and a half years, during the course of which the second respondent conversed

with the parents and sister of the appellant. It has been alleged in the FIR that

the parents of the appellant were agreeable to the couple getting married. As a

matter of fact, the appellant returned to his home town at Jhansi on 5 January

2018 when he had made a phone call to her stating that she should come and

visit him so that they can get married. On travelling to Jhansi at the behest of

the appellant, the second respondent was informed by the father of the

5

appellant that the appellant did not wish to marry her. The contents of the

statement under Section 164 of CrPC also indicate that the second respondent

had “voluntarily developed relationship of husband-wife with him”. The second

respondent has then stated that “now, he and his family members are refusing

to marry with me”. The second respondent has further stated that “my sole

grievance is that Sonu is refusing to marry with me”.

8 The contents of the FIR as well as the statement under Section 164 of CrPC

leave no manner of doubt that, on the basis of the allegations as they stand,

three important features emerge:

(i) The relationship between the appellant and the second respondent was of

a consensual nature;

(ii) The parties were in the relationship for about a period of one and a half

years; and

(iii) Subsequently, the appellant had expressed a disinclination to marry the

second respondent which led to the registration of the FIR.

9 In Pramod Suryabhan Pawar (supra), while dealing with a similar situation,

the principles of law which must govern a situation like the present were

enunciated in the following observations:

“Where the promise to marry is false and the intention of the

maker at the time of making the promise itself was not to abide

by it but to deceive the woman to convince her to engage in

sexual relations, there is a “misconception of fact” that vitiates

the woman’s “consent”. On the other hand, a breach of a

promise cannot be said to be a false promise. To establish a

false promise, the maker of the promise should have had no

intention of upholding his word at the time of giving it...”

6

10 Further, the Court has observed:

“To summarise the legal position that emerges from the above

cases, the “consent” of a woman with respect to Section

375 must involve an active and reasoned deliberation towards

the proposed act. To establish whether the “consent” was

vitiated by a “misconception of fact” arising out of a promise to

marry, two propositions must be established. The promise of

marriage must have been a false promise, given in bad faith

and with no intention of being adhered to at the time it was

given. The false promise itself must be of immediate relevance,

or bear a direct nexus to the woman’s decision to engage in the

sexual act.”

11 Bearing in mind the tests which have been enunciated in the above decision, we

are of the view that even assuming that all the allegations in the FIR are correct

for the purposes of considering the application for quashing under Section 482 of

CrPC, no offence has been established. There is no allegation to the effect that

the promise to marry given to the second respondent was false at the inception.

On the contrary, it would appear from the contents of the FIR that there was a

subsequent refusal on the part of the appellant to marry the second respondent

which gave rise to the registration of the FIR. On these facts, we are of the view

that the High Court was in error in declining to entertain the petition under

Section 482 of CrPC on the basis that it was only the evidence at trial which

would lead to a determination as to whether an offence was established.

12 For the above reasons, we allow the appeal and set aside the impugned

judgment and order of the High Court dated 26 September 2019. In view of the

reasons which have been adduced earlier, the charge sheet dated 25 April 2018,

which has been filed in pursuance of the investigation which took place, shall

stand quashed. The order of the trial Court dated 3 October 2018 taking

cognizance shall accordingly stand quashed and set aside.

13 In view of the above order, Mr Amit Pawan, learned counsel appearing on behalf

of the appellant, states that no further step shall be taken in respect of the

7

cross-FIR which was registered against the second respondent at the behest of

the appellant.

14 Pending application, if any, stands disposed of.

 …………...…...….......………………........J.

 [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.

 [M R Shah]

New Delhi;

March 01, 2021

-S-

8

ITEM NO.10 Court 6 (Video Conferencing) SECTION II

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

 RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).11218/2019

(Arising out of impugned final judgment and order dated 26-09-2019

in A482 No. 35811/2019 passed by the High Court of Judicature at

Allahabad)

SONU @ SUBHASH KUMAR Petitioner(s)

 VERSUS

STATE OF UTTAR PRADESH & ANR. Respondent(s)

Date : 01-03-2021 This petition was called on for hearing today.

CORAM :

 HON'BLE DR. JUSTICE D.Y. CHANDRACHUD

 HON'BLE MR. JUSTICE M.R. SHAH

For Petitioner(s) Mr. Amit Pawan, AOR

Mr. Anand Nandan, Adv.

For Respondent(s) Mr. Vishnu Shankar Jain, AOR

Mr. Chanakya Gupta, Adv.

Mr. Simant Kumar, Adv.

Mr. Ravi Prakash, AOR

Ms. Jaishree Raj Soni, Adv.

Mr. Sandeep Malik, Adv.

Vagisha Nandini, Adv.

Mr. Vikram Singh Arya, Adv.

UPON hearing the counsel the Court made the following

 O R D E R

1 Leave granted.

2 The appeal is allowed in terms of the signed reportable judgment.

3 Pending application, if any, stands disposed of.

 (SANJAY KUMAR-I) (SAROJ KUMARI GAUR)

 AR-CUM-PS COURT MASTER

(Signed reportable judgment is placed on the file)

9

the manner of filling up the seats has been well enunciated in the judgment in K.R. Shanthi’s case (supra) by the Madras High Court itself and appears to have been consistently followed. May be the peculiarity of the situation arising in Chemistry subject (which is in question) gives rise to this problem in the current year and such a problem had not apparently arisen earlier. In fact, there is no manner of doubt after the latest judgment of this Court in Saurav Yadav & Ors. case (supra) which again refers to the steps which have to be taken to fill in those vacancies. The steps are clear in their terms : in the given facts of the case, application of those principles or steps would imply: a) the general merit list to be first filled in; (b) the backlog vacancies of the particular reserved category to be thereafter filled in "first”; and (c) the remaining reserved vacancies for the current year to be filled thereafter. It appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in. The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect! The increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.10 Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant 10 These observations are in the context of the controversy before us as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration before this Court.

 the manner of filling up the seats has been well enunciated in the judgment in K.R. Shanthi’s case (supra) by the Madras High Court itself and appears to have been consistently followed. May be the peculiarity of the situation arising in Chemistry subject (which is in question) gives rise to this problem in the current year and such a problem had not apparently arisen earlier. In fact, there is no manner of doubt after the latest judgment of this Court in Saurav Yadav & Ors. case (supra) which again refers to the steps which have to be taken to fill in those vacancies. The steps are clear in their terms : in the given facts of the case, application of those principles or steps would imply: a) the general merit list to be first filled in; (b) the backlog vacancies of the particular reserved category to be thereafter filled in "first”; and (c) the remaining reserved vacancies for the current year to be filled thereafter. It appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in. The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect! The increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.10 Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant

10 These observations are in the context of the controversy before us as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration before this Court.

1

Reportable

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NOS. 3745-3754 OF 2020

THE STATE OF TAMIL NADU & ORS. .. APPELLANT(S)

VERSUS

K. SHOBANA ETC. ETC. ..RESPONDENT(S)

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The perennial problem of working out the reservation system given

the scarce employment sources has given rise to the present dispute.

2. Notification was issued on 12.06.2019 by the Teachers’ Recruitment

Board, appellant No. 3, inviting applications online from eligible

candidates for direct recruitment to the post of Post Graduate Assistants

and Physical Education Directors, Grade-I in school education and other

departments for the year 2018-2019 in Tamil Nadu. The recruitment for

various subjects was carried out smoothly, but the filling up of vacancies

for the post of Post Graduate Assistants in Chemistry has caused some

disputes in which the respondents were applicants. In terms of the

notification, a total of 356 posts were notified for Chemistry, out of which

117 vacancies were available for Most Backward Class (MBC) and

2

Denotified Community (DNC) candidates. The break-up of 117 vacancies

was of 74 backlog vacancies and 43 current vacancies.

3. The respondents, among other candidates, applied for the

aforementioned post online and appeared in the written examination on

28.09.2019. Post verification of certificates, a provisional selection list was

published by appellant No. 3 on 20.11.2019, but the names of the

respondents were absent.

4. The respondents claimed that on scrutinizing the list, they found

that the meritorious candidates under the MBC quota, who would have

been selected irrespective of any reservation, had not been considered

under the general vacancies but had been appointed in the MBC/DNC

quota against the backlog vacancies. This had caused the respondents

not to be appointed. It was their submission that the meritorious

candidates were required to be adjusted against vacancies on merit in the

General Turn, and it is only thereafter that the backlog vacancies had to

be filled in and thereafter, lastly, the current vacancies under the quota

had to be adjusted.

5. The aforesaid resulted in filing of writ petitions before the High Court

of Madras seeking quashing of the provisional selection list and for

appointment of these respondents.

6. The controversy really arose and arises from the interpretation of

Section 27(f) of the Tamil Nadu Government Servants (Conditions of

Service) Act, 2016 (hereinafter referred to as “the Act”). The relevant

Section reads as under:

3

“27. Reservation for Appointments-

(f) If qualified and suitable candidates belonging to any of

the Backward Classes, Backward Class Muslims including

the Most Backward Classes and Denotified Communities are

not available for selection for appointment by recruitment

by transfer or by promotion in the turns allotted to them,

the turns so allotted shall lapse and the selection for

appointment for the vacancies shall be made by the next

turn in the order of rotation:

Provided also that in the case of selection for appointment

by direct recruitment, with effect on and from the 1st April

1989, there shall be a ban on dereservation of vacancies

reserved for the candidates belonging to any of the

Scheduled Castes and Scheduled Tribes, Most Backward

Classes and Denotified Communities to be appointed by

direct recruitment. But, the above ban on dereservation of

vacancies shall not be applicable to the vacancies reserved

for the Backward Classes (other than Most Backward

Classes and Denotified Communities), Backward Class

Muslims and, therefore, if qualified and suitable candidates

belonging to any of the Backward Classes (other than Most

Backward Classes and Denotified Communities), Backward

Class Muslims are not available for appointment, the turn so

allotted to them shall lapse and the vacancy shall be filled

by the next turn in the order of rotation. If sufficient number

of qualified and suitable candidates belonging to any of the

Scheduled Castes and Scheduled Tribes, Most Backward

Classes and Denotified Communities are not available for

selection for appointment for the vacancies reserved for

them by direct recruitment in the first attempt of

recruitment, then, a second attempt shall be made for

selection of the candidates belonging to the respective

communities by direct recruitment in the same recruitment

year or as early as possible before the next direct

recruitment for selection of candidates against such

vacancies. If the required number of candidates belonging

to such communities are not available even then, the

vacancies for which selection could not be made shall

remain unfilled until the next recruitment year treating them

as “backlog” vacancies. In the subsequent year, when direct

recruitment is made for the vacancies of that year, namely,

the current vacancies, the “backlog” vacancies shall also be

 announced for direct recruitment, keeping the vacancies

of the particular recruitment year, namely, the

current year vacancies and the “backlog” vacancies

as two distinct groups as illustrated in Schedule-IX.

4

The selection for appointment for the next direct

recruitment shall be made first for the “backlog”

vacancies and then the normal rotation shall be

followed:

7. The Section propagates the social philosophy of vacancies for

reserved category not lapsing in case there are inadequate number of

candidates. Thus, instead of offering it to the general category, a provision

has been made to carry forward those vacancies for one year. In case

even in the succeeding year, these vacancies are not filled in, then it goes

to other categories. However, crucial issue arises from the last sentence

of third proviso to Section 27(f) which provides for the selection of

appointment for the next direct recruitment to be made “first for backlog

vacancies and then the normal rotation shall be followed”. Meaning, thus,

has to be assigned to what is implied by the expression “first” vis-à-vis the

backlog vacancies.

8. It is the case of the appellants that the clear provisions of the

Section must be given effect to, which in turn, would imply that on the

basis of merit the backlog vacancies had to be first filled in. After those

vacancies were filled, the appointment had to be made on merit in the

General Turn. Thus, such of the candidates who made it on merit, would

be adjusted against those seats, while the remaining would be adjusted

against the reserved vacancies.

9. The respondents succeeded before the learned Single Judge in

terms of judgment dated 09.01.2020 and the Writ Appeals preferred

against the same was dismissed vide impugned order dated 19.03.2020.

5

10. Learned senior counsel for the appellants Shri C. Aryama Sundaram

contented that vested right can only be for 69% reservation, while if the

view propounded by the respondents was to be taken into account, it

would lead to more than 69% reservation. There had been no reduction in

reservation below the statutory limit, and that coming in the open

category did not mean that they are not entitled to benefit of the reserved

category.

11. An argument was initially sought to be propounded that the backlog

vacancies relating to the earlier year would require seniority to be given,

and if the respondents’ plea was accepted, persons less meritorious in

that category would be entitled to seniority. However, in subsequent

proceedings, it transpired that this was not the factual position, as the

backlog vacancies would also take the seniority from the year when they

were so filled in.

12. Learned senior counsel sought to contend that the expression used

in Section 27(f) of the Act must be given its natural meaning and the word

“first” had been used by the legislature in its wisdom and with an intent

which could not be made otiose.

13. The appellant relied on Hardeep Singh Vs. State of Punjab & Ors.

1

wherein, though the dispute related to the interpretation of the provisions

of Section 319 of the Cr.P.C., what is relevant is the proposition sought to

be laid down. It held that it was a settled principle of law that if an

interpretation leads to a conclusion that the word used by the legislature

is redundant, that should be avoided as the presumption is that the

1 (2014) 3 SCC 92, paras 42 to 45. 

6

legislature has deliberately and consciously used the word of carrying out

the purpose of the Act. The legal maxim a verbis legis non est

recedendum which means, “from the words of law, there must be no

departure” has to be kept in mind. There could be no assumption that a

legislature committed a mistake when the language of the statute was

plain and ambiguous. No word in a Statute has to be construed as a

surplusage nor could any word be rendered ineffective or purposeless if

the Court required to carry out the legislative intent fully and completely.

14. We may also note the submission of learned senior counsel for the

intervenors Mr. S. Nagamuthu, supporting the plea of the appellants

because his clients are the beneficiaries of the manner in which the

Section is sought to be interpreted by the appellants, and thus certain

other reserved categories benefited from the same. The additional

submission he made was in the context of Article 16 (4B) of the

Constitution of India which reads as under:

 “16: Equality of opportunity in matters of public

employment-

(4B)- Nothing in this article shall prevent the State from

considering any unfilled vacancies of a year which are

reserved for being filled up in that year in accordance with

any provision for reservation made under clause (4) or in

accordance with any provision for reservation made under

clause (4) or clause (4A) as a separate class of vacancies to

be filled up in any succeeding year or years and such class

of vacancies shall not be considered together with the

vacancies of the year in which they are being filled up for

determining the ceiling of fifty per cent reservation on total

number of vacancies of that year.”

15. The submission advanced was that what the appellants were doing

7

was in consonance with the same, as the reservation carried forward was

to be filled in as a separate class of vacancies, and not to be considered

together with a vacancy of that year in which they are being filled in

keeping in mind that the seats were limited.

16. On the other hand, learned senior counsel for the respondents Mr.

N.L. Rajah contended that the correct methodology was that first, the list

has to be drawn up on the basis of merit, and then only the issue of

application of reservation would arise.

17. Thus, first the meritorious candidates would take their place in the

general merit list where no reservation would apply. Reservation would

apply thereafter, whereby the backlog vacancies would be filled in first,

followed by the current year vacancies. In a nutshell, his contention was

that Section 27 of the Act has nothing to do with the selection based on

merit, and only applies to the mode of reservation post that stage. Two

lists for “the distinct groups” are required to be made as provided for the

reserved vacancies, which would be- first, a backlog list and then,

secondly, the current list. The meritorious selected candidates have

nothing to do with this part of the list. Our attention was also drawn to

the provisional selection list dated 20.11.2019 to point out how the merit

list had been drawn up. The submission, thus, was that this is the

consistent and correct practice, and the fact that this problem arose only

in case of Chemistry would make no difference even though practically

now all the backlog vacancies would be filled in.

18. Learned counsel supported his contention by reference to certain

8

judicial pronouncements. On the principle of how the persons in the merit

list, irrespective of their community, would not affect the reservation as

they would be adjusted against the general candidates were supported by

the judicial pronouncement in Rajesh Kumar Daria vs. Rajasthan Public

Service Commission and Ors.

2

 In para 9 of the judgment, the difference

between the nature of vertical reservation and horizontal reservation has

been highlighted to opine that the candidates belonging to the backward

class may compete for non reserved posts for which they are appointed

on merit, their number will not be counted against quota reserved for

respective backward classes. This is stated to be the consistent view

starting from the judgment in Indra Sawhney v. Union of India

3

, R.K.

Sabharwal vs. State of Punjab

4

, Union of India vs. Virpal Singh Chauhan

5

and Ritesh R Sah Vs. Dr. Y.L. Yamul

6

. This principle does not to apply for

horizontal (special) reservations. For example, where a special

reservation for women is provided within the social reservation for

Scheduled Castes, the proper procedure is first to fill up the quota for

Scheduled Castes in order of merit and then find out the number of

candidates among them who belong to the special reservation group of

“Scheduled Caste women”. If the number of women in such list is equal to

or more than the number of special reservation quota, then there is no

need for further selection towards the special reservation quota. Only if

there is any shortfall, the requisite number of Scheduled Caste women

2. (2007) 8 SCC 785.

3. 1992 Supp (3) SCC 217.

4. (1995) 2 SCC 745.

5. (1995) 6 SCC 684.

6. (1996) 3 SCC 253.

9

shall have to be taken by deleting the corresponding number of

candidates from the bottom of the list relating to Scheduled Castes.

19. A similar view has been taken in Anil Kumar Gupta & Ors. vs. State

of U.P. & Ors.

7

 by opining on the basis of the judgment in Indra Sawhney’s

case (supra) that the proper and correct course is to first fill up the open

quota seats on the basis of merit, and then fill up each of the social

reservation quotas. If the quota fixed for horizontal reservations is already

satisfied, no further question would arise while dealing with such

horizontal reservations (which is not the case in the present appeals).

20. Learned counsel also sought to contend that insofar as Tamil Nadu is

concerned, the matter was settled long time back by the judgment of the

High Court in K.R. Shanthi vs. Secretary to Government, Education

Department, Chennai & Anr.

8

 It was clearly observed that candidates

selected on merit under open quota should not be adjusted against

reserved vacancy and the inter se seniority of candidates selected and

appointed in that selection should be only on merit and not on the basis of

roster points. It would be relevant to extract the steps which were opined

as required to be taken and set out in para 14:

 “14. A perusal of the above judgments would keep at least

two things beyond any pale of doubt. Firstly, the roster is

not vacancy based, but the same is only post based. It

7. (1995) 5 SCC 173.

8. (2012) 7 MLJ 241 paras 14, 18 and 19, incidentally authored by S. Nagamuthu, J., as

he then was, though of course the principle of promissory estopple cannot apply while he

raises his contentions! 

10

identifies the number of posts earmarked for various

categories under the vertical reservations and posts left

behind for open quota as well as special reservations.

Secondly, after so identifying the posts, it should be

calculated as to how many vacancies are to be filled up

under various categories in the current selection. If once the

number of vacancies earmarked for each category in the

current selection is identified by using the Roster, thereafter

the Roster will have no further role to play in the matter of

selection. After identifying the number of vacancies

earmarked for various categories, the selection for each

category has to be made purely based on merit following

the method detailed below:

First Step:

(i) As against the number of vacancies identified for open

quota, irrespective of caste, sex, physically challenged, etc.,

everyone should be allowed to compete based on merits.

(ii) The meritorious candidates should be first selected as

against the above vacancies under open quota.

Second Step:

(iii) After completing the first step, moving on to the vertical

reservation categories, selection has to be made for each

category from amongst the remaining candidates belonging

to the particular reserved category (vertical) based on

11

merits.

Third Step:

(iv) After completing the second step, horizontal reservation

which cuts across the vertical reservation has to be verified

as to whether the required number of candidates who are

otherwise entitled to be appointed under the horizontal

reservation have been selected under the vertical

reservation.

(v) On such verification, if it is found that sufficient number

of candidates to satisfy the special reservation (horizontal

reservation) have not been selected, then required

corresponding number of special reservation candidates

shall have to be taken and adjusted/accommodated as

against social reservation categories by deleting the

corresponding number of candidates therefrom.

(vi) Even while filling up the vacancies in the vertical

reservation, if, sufficient number of candidates falling under

the horizontal reservation have been appointed, then, there

will be no more appointment exclusively under the

horizontal reservation.

Caution:

(vii) At any rate, the candidates who were selected as

against a post under open quota shall not be adjusted

against the reserved quota under vertical reservations.”

12

21. Lastly, referring to the recent judgment of this Court in Saurav

Yadav and Ors. vs. State of Uttar Pradesh & Ors.

9

 This judgment again set

forth the steps to be taken while implementing this list in para 14 as

under:

“14. The observations in the Order dated 20.02.2019

passed by the Division Bench of the High Court of Judicature

at Allahabad in Pramod Kumar Singh v. State of U.P.

8 are

also relied upon by the State Government. In that case the

horizontal reservation for dependants of Freedom Fighters,

Ex. Servicemen and women in the very same selection for

Police Constables was in issue. The Division Bench of the

High Court dealt with the Note submitted on behalf of the

State which indicated the steps undertaken to determine

and fill up seats for various categories as under:—

“The procedure as set forth for completion of the

recruitment exercise is then described in the following

terms:

“Step 3.1 From List-1 select 19158 candidates in open

category in order of their merit (Total Marks). This list may

contain candidates from any state or any reserved

categories (OBC/SC/ST) also. Let us call this list as List 1- A.

Step 3.2 Now select 10345 candidates of OBC Category

from the candidates left after Step 3.1 from the List-1. This

9 . 2020 SCC OnLine SC 1034.

13

will include only OBC candidates with domicile of U.P. Let us

call this list as List-1-B.

Step 3.3 Now select 8046 candidates of SC Category from

the candidates left after Step 3.1 from the List-1. This will

include only SC candidates with domicile of U.P. let us call

this list as List 1-C.

Step 3.4 Now select 766 candidates of ST Category from

the candidates left after Step 3.1 from the List-1. This will

include only ST candidates with domicile of U.P. let us call

this list as List 1-D.

Step 3.5 If number of candidates in List-1-C is less than the

required number 8046 for SC Candidates from shortage will

be filled from ST candidates remaining after step 3.4 if

available. If required quota of SC remains unfilled, then

number of shortage posts should be shown separately.

Similarly if number of for ST candidates then shortage will

be filled from SC candidates remaining after Step 3.3, if

available. If required of ST still remains unfilled then number

of shortage posts should be shown separately.

Step 3.6 In this way four lists of candidates will be

prepared as follows:

List-1-A (OC) List-1-B (OBC) List-1-C (SC) List-1-D (ST)

19158 (will include

GEN, OBC, ST of any

state)

10345 (Only OBC,

domicile of U.P.)

8046 (Only SC,

domicile of U.P.)

766 (Only ST,

domicile of U.P.)

14

Step 4 prepare a separate list of remaining candidates from

List-1 who are not included in List-1-A, 1-B, 1-C and 1-D. Let

us call this list as List-1.

Step 4.1 Now count the number of DFF candidates

belonging to General Category (having domicile of U.P.) from

the List-1-A. The candidates should not be OBC/SC/ST

category. If number of candidates is 383 or more, then

nothing needs to be done, otherwise select the shortfall of

candidates of general category belonging to DFF on merit

from the List-2 (Only candidates not belonging to OBC,

SC & ST category) and adjust/insert them in after

removing equal number of candidates from the bottom

of List-1-A except General Category DFF, Ex-Servicemen,

female and home guard candidates (any candidate who is

eligible for horizontal reservation)”.””

22. We have examined the contentions of the parties.

23. First, we would like to turn to the judgment of the learned Single

Judge which, in our view, is absolutely lucid and clear to the controversy

and the conclusion. Learned Single Judge set forth the controversy in the

first paragraph itself, i.e., whether the candidates who secured high marks

should have been fitted in the General Turn but have been fitted in

MBC/DNC Quota for the last year, which in turn has deprived certain

candidates of selection. It has been rightly noted that the entire confusion

15

has arisen due to the wrong reading of provisions of Section 27 of the Act,

which provides for reservation for appointment. Section 27(f) merely

states that if the required number of candidates belonging to the

community which fall under reservation are not available, then, the

vacancies, for which selection could not be made in the current year,

should be treated as backlog vacancies. In the subsequent recruitment,

the backlog vacancies and the current vacancies for the particular

community must be separately announced, and the direct recruitment

must first accommodate the backlog vacancies and thereafter only, the

current vacancies have to be accommodated. The provision had been

read by the appellants as if the backlog vacancies must be filled in by

MBC/DNC category candidates, irrespective of the merit of the candidate

or the rank secured by him/her. The highest mark that was secured was

109 and, up to 90 marks, the candidates were fitted in General Turn and

thus those candidates will have to be selected under the General Turn,

irrespective of their community. It is these candidates who had been fitted

in the backlog vacancy which has caused the problem.

24. The Division Bench vide the impugned order also opined in the

same terms and agreed with the interpretation of Section 27 of the Act by

further observing that the proviso which contains the word “first” does not

have any relation to the offer and placement of such reserved category

candidates, including, Most Backward Classes who attain their position by

way of merit in the open category/General Turn vacancies.

25. We are in complete agreement with the view taken by the courts

16

below as there really could not have been any cavil to the aforesaid. The

principle that such of the reservation category candidates who make it on

their own merit have to be adjusted against the general category

candidates has not been in doubt or argued in view of the catena of

judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be

read in a manner, apart from any other reason, to negate this very

principle.

26. It has been rightly pointed out by learned counsel for the

respondents that the issue arising from seniority of filling the backlog

vacancies first was not even urged in the courts below and was sought to

be raised for the first time before this Court, and elaborately at that, which

plea finally fizzled out, as it was conceded that there is no factual basis for

the same.

27. There can be no doubt about the proposition that if a word is used in

a Statue, it cannot be made otiose as held in Hardeep Singh (supra).

However, that is not the factual scenario in this case. The question arises

as to at which stage would Section 27 of the Act operates, and where in

the list, the application of the “first” principle would apply. Section 27

deals with the reservation. It has nothing to do with the general

candidates list/ General Turn vacancies. Such of the candidates who have

made it on their own merit albeit, from reserved category, have not

sought the benefit of the reservation. Thus, Section 27 of the Act would

have nothing to do up to that point. Section 27 would apply only when

the reservation principle begins, which is after filling up of the seats on

17

merit. Thus, the word “first” would apply at that stage, i.e., the backlog

vacancies have to be filled in first and the current vacancies to be filled in

thereafter. At the stage when the general category seats are being filled,

there is thus no question of any carry forward or current vacancies for

reserved category arising at all.

28. We may also note that the manner of filling up the seats has been

well enunciated in the judgment in K.R. Shanthi’s case (supra) by the

Madras High Court itself and appears to have been consistently followed.

May be the peculiarity of the situation arising in Chemistry subject (which

is in question) gives rise to this problem in the current year and such a

problem had not apparently arisen earlier. In fact, there is no manner of

doubt after the latest judgment of this Court in Saurav Yadav & Ors. case

(supra) which again refers to the steps which have to be taken to fill in

those vacancies. The steps are clear in their terms : in the given facts of

the case, application of those principles or steps would imply:

 a) the general merit list to be first filled in;

 (b) the backlog vacancies of the particular reserved category to be

thereafter filled in "first”; and

 (c) the remaining reserved vacancies for the current year to be filled

thereafter.

29. It appears that such a situation may not arise in the future as all

backlog vacancies are stated to have been filled in. The performance and

merit of candidates, as apparent from the list in question, would itself

show as to how many candidates have been successful to attain

18

appointment on a merit position without even availing of reservation- an

extremely encouraging aspect! The increase in MBC/DNC candidates really

does not impinge on the reservation of seats for other categories, nor

does it violate any provision of the Constitution of India.10 Though, of

course, it would imply that some of the other candidates from different

reserved categories would not be entitled to fill in the reserved seats of

MBC/DNC categories, if those seats would have remained vacant.

30. The result of the aforesaid is that the appeals are dismissed in the

aforesaid terms, leaving the parties to bear their own costs.

31. We may note that apparently in pursuance to our directions, the

candidates as per the impugned judgment may possibly have already

joined.

 ..............................…..J.

 [SANJAY KISHAN KAUL]

 ...................................J.

 [DINESH MAHESHWARI]

 .................................J

. [HRISHIKESH ROY]

NEW DELHI,

March 05, 2021.

10 These observations are in the context of the controversy before us as the larger issue

of reservation beyond 50%, qua Tamil Nadu, is still pending consideration before this

Court.

when allotment letter bars Subletting , then partnership with another person can not be termed as subletting admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document 20 and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises. 21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is “You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties”. As noted above, Chief Administrator in its order dated 04.03.1986 21 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not.

when allotment letter bars Subletting , then partnership with another person can not be termed as subletting = admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document 20 and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises. 21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is “You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties”. As noted above, Chief Administrator in its order dated 04.03.1986 21 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not. 

 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.814-815 Of 2021

(arising out of SLP(C)Nos.11009-11010 of 2019)

MADAN MOHAN SINGH ...APPELLANT(S)

VERSUS

VED PRAKASH ARYA ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.

2. These appeals have been filed by the appellant

challenging the judgment of the High Court of Punjab

and Haryana dated 06.12.2018 by which Regular Second

Appeal No.35 of 1997 filed by the respondent, the

defendant in suit, has been allowed, and the Regular

Second Appeal No.2610 of 2002 filed by the appellant

has been dismissed and the suits filed by the

plaintiff-appellant have been dismissed.

2

3. Brief facts of the case which are necessary to be

noted are:

The appellant due to surrender of a temporary

stall at Nehru Market was allotted Booth No.186 in

Sector 35-D, Chandigarh vide Allotment Letter dated

20.06.1972 issued by the Estate Officer, Chandigarh

Administration. The allotment specifically provided

that appellant-plaintiff has no right to transfer his

rights directly or indirectly. The appellant was

restrained from subletting the premises or any part

thereof. The building was leased out for cattle

poultry feed and for no other purpose. The appellant

entered into a partnership deed dated 18.12.1976 with

the respondent, Ved Prakash for carrying out the

business of cycle repairing etc. in partnership at

Booth No.186, Sector 35-D, Chandigarh. The

appellant’s case is that by notice dated 04.10.1979,

the respondent dissolved the partnership and

thereafter he became an employee of the appellant in

the Booth. 

3

4. The Estate Officer, Chandigarh passed an order

dated 09.09.1980/15.04.1982 terminating the hirepurchase agreement of the Booth on the ground that

the premises are being used in contravention of

Allotment Letter dated 20.06.1972. The appellant

filed an application before the Chief Administrator,

Union Territory, Chandigarh questioning the order

dated 15.04.1982 praying that order be declared

illegal and wrong. The respondent, Ved Prakash filed

an application before the Chief Administrator, in the

proceedings claiming him to be occupier of the

premises, paying that he may also be made party to

the proceedings. By order dated 09.02.1984 passed

under Public Premises (Eviction of Unauthorised

Occupants) Act, 1971, the Estate Officer directed

eviction from Booth No.186. The appeal was filed by

the respondent, Ved Prakash before the Additional

District Judge, Chandigarh. In the aforesaid appeal

the appellant also appeared. The appeal was dismissed

on 10.06.1985. However, the Appellate Court observed

that Booth belonged to the appellant and the

4

respondent, Ved Prakash was in possession as an

employee of the appellant.

5. The respondent, Ved Prakash has also filed Appeal

No.21 of 1984 challenging the order dated 09.09.1980

of the Estate Offider, Chandigarh issued on

15.04.1982 (cancelling the hire-purchase agreement).

The Chief Administrator, Chandigarh Administration

decided the aforesaid appeal on 13.03.1986 where the

Chief Administrator has also noticed that misuse of

the premises has been stopped, hence, the premises be

restored to hirer-the appellant and the respondentVed Prakash was also held as servant of the hirer by

the Chief Administrator. The respondent also filed

Civil Writ Petition No.3115 of 1985 challenging the

order of eviction under the Public Premises Act which

was dismissed as infructuous on 14.03.1986 by the

High Court noticing that the order of resumption has

been revoked.

6. The appellant being unable to take possession of

the premises, he filed Civil Suit No.77 of 1986

5

impleading the respondent as sole defendant. The

appellant’s case in the suit was that possession of

Booth No.186 was given to the respondent in pursuance

of partnership deed dated 18.12.1976. It was pleaded

that after restoration of the Booth by Chief

Administrator, Chandigarh dated 04.03.1986, the

plaintiff-appellant became owner of the property and

it was further pleaded that the respondent after

dissolution of the partnership has been allowed to

use the premises as an employee. By notice dated

17.02.1986 the services of the respondent-defendant

have been terminated and the defendant was requested

to handover the vacant possession of the premises to

the plaintiff. However, the possession was never

restored to the plaintiff till date, the plaintiff

prayed for direction of mandatory injunction against

the defendant directing the defendant to restore

possession to the plaintiff of Booth No.186, Sector

35-D, Chandigarh.

7. The defendant filed a written statement. In the

written statement, the defendant pleaded that he took

6

the premises on rent from the plaintiff on 18.12.1976

at a monthly rent of Rs.450/- per month. The

execution of partnership deed dated 18.12.1976 was

admitted but it was claimed as sham document. It was

further stated in para 2 of the written statement

(reply on merits) that plaintiff has never issued any

receipt for the rent and he has been refusing the

rent from October, 1982. The defendant claimed to be

a tenant. The trial court vide its judgment dated

29.02.1992 dismissed the suit. The trial court held

the defendant to be a tenant notwithstanding the fact

that defendant failed to prove any documents

pertaining to the tenancy. The execution of

partnership deed dated 18.12.1976 was accepted,

however, the trial court observed that the said

partnership deed was executed only to avoid the

prohibition in hire purchase agreement.

8. Against the order of the trial court appeal was

filed by the appellant. The First Appellate Court

vide its judgment dated 02.12.1996 allowed the appeal

7

granted the decree of mandatory injunction to the

appellant-plaintiff. The First Appellate Court held

that there was no material to come to the conclusion

that defendant was tenant. The findings of the trial

court on the question of tenancy was held to be based

on surmises and conjectures. It was held that there

was no presumption of landlord and tenant. The First

Appellate Court also noticed that the respondent, Ved

Prakash appeared as DW-2 and stated that he had

maintained accounts books in the business but there

is no record regarding payment to the appellant,

accounts books were not produced in the Court.

Against the judgment of the First Appellate Court,

the Second Appeal was filed by the defendant which

was allowed by the High Court by impugned judgment

dated 06.12.2018. The High Court framed following two

questions:

'(i) Whether the court while adjudicating upon

the dispute must go to the route of the case

and unearth the evil design by lifting the

veil ?

(ii) Whether the first appellate court, before

setting aside a judgment passed by the learned

8

trial court, is required to analyse the reasons

given by the learned trial court and after

critical appraisal thereof give its own reasons

while disagreeing or setting aside the reasons

given by the learned trial court ?'

9. The High Court has held that the First Appellate

Court wrongly relied upon the order passed by the

Chief Administrator. The High Court further observed

that the First Appellate Court also misread that

before the Chief Administrator the defendant had

taken a stand that he was merely a servant, which is

against the record. The High Court has further

observed that the First Appellate Court has also

drawn adverse inference on account of the nonproduction of the accounts books by the defendant.

The High Court held that entire story put forth by

the plaintiff does not appeal to the reason. A

Regular Second Appeal No.2610 of 2002 was filed by

the plaintif against the judgment refusing to grant

the mandatory injunction directing the defendant for

not using the Booth for cycle repairing. The appeal

filed by the defendant was allowed setting aside the

9

decree of First Appellate Court. Aggrieved by the

aforesaid judgments, these appeals have been filed by

the plaintiff-appellant.

10. There is no dispute between the parties that

Booth No.186 was allotted to the plaintiff-appellant

by order dated 20.06.1972. The condition Nos.12, 13

and 19 which are relevant for the present case are as

follows:

“12. You will have no right to transfer your

rights under this lease directly or indirectly.

You will not sublet the premises or any part

thereof. If there is any dispute as to whether

the premises have been sublet or not the

decision of the Chief Administrator,

Chandigarh, on the point shall be binding on

the parties, no fragmentation of the building

be permissible.

13. The building shall be used only for the

purpose it is leased out cattle poultry feed

and for no other purpose.

19. The undersigned shall have full rights,

power and authority at all times to do through

his officers or servants all acts and things

which may be necessary or expedient for the

purpose of enforcing compliance with all or any

of the terms conditions and reservations herein

10

contained and to recover from you the cost of

doing any such act or thing.

11. It is also admitted that a partnership deed dated

18.12.1976 was executed both by the plaintiff and the

defendant under which deed it was decided and agreed

mutually to carry out the business of cycle repairing

etc. in Booth No.186. It is relevant to notice that

the execution of partnership deed was not disputed by

the defendant, Ved Prakash but his case was that he

took premises on rent at the rate of Rs.450/- per

month on 18.12.1976. The partnership document was

termed as sham document by the defendant. In

paragraph 2 of the plaint, the plaintiff has made

pleading, which was replied in para 2 of the written

statement, which are as follows:

“Para 2 of the Plaint: That after the taking

possession of the said booth the plaintiff

earlier started running business under the name

and style of M/s Prakash Cycle Store in

partnership with the defendant and partnership

deed was duly executed between the parties on

18.12.1976. Copy of the partnership deed is

attached.

11

Para 2 of written statement: Para 2 of the

plaint as stated is wrong and denied. It is

stated that the defendant took the demised

Premises on rent from the plaintiff on the

18.12.1976 at a monthly rent of Rs.450/- per

month. The said partnership deed dated the

18.12.1976 was executed. It was a sham document

executed only to save the plaintiff from the

rigours of clause 12 of the Allotment Order

dated 20.06.1976 in favour of the plaintiff,

which lays down that in case of sub-tenancy the

booth may be resumed. In fact, the execution of

this partnership deed was one of the preconditions laid down by the plaintiff for

renting out the demised premises to the

defendant. Even since the 18.12.1976 the

defendant has been in exclusive possession as a

tenant and has been paying rent at the rate of

Rs.450/- per month. The plaintiff has never

issued any receipt for the rent received. The

plaintiff has now been refusing rent since

October, 1982.

12. As noted above, the premises was resumed by the

Estate Officer by order dated 09.09.1980 which was

issued on 15.04.1982 on the ground that premises is

not being used for the purpose for which it was

granted but it was being used for cycle repairing.

12

Against the order dated 09.09.1980 the respondent

himself filed an Appeal No.21 of 1984 where the

plaintiff-appellant had also appeared and claimed

that the defendant is only a servant of the

plaintiff. The Chief Administrator allowed the appeal

holding that misuse having stopped the allotment be

restored to hirer, Madan Mohan Singh. The Chief

Administrator also after considering the arguments of

the parties came to the conclusion that Ved Prakash

was a servant of the hirer. The relevant observations

of Chief Administrator are as follows:

“....At the outset the counsel for the

appellant has stated that the misuse has been

stopped and that the premises in question are

now being used for running a shop for the sale

of poultry and cattle feed etc. The

representative of the Estate Officer has

admitted the factum of the removal of the

misuse by the appellant. Sh. Kaushal has argued

that the appellant has no locus standi for

filing this appeal because the appellant is

merely a servant of the hirer Sh.Madan Mohan

Singh. In support of his contention he has

produced before me a copy of the judgment of

the Additional Distt. Judge, Chandigarh who

dismissed the appeal of Shri Ved Prakash

holding the view that the appellant was in

13

possession of the said premises not as a tenant

or licencee but only as an employee. …… The

consideration of argument put forward by Sh.

Kaushal and that of the evidence adduced before

me by him lead me to conclude that the

appellant being a servant of the hirer has no

cause of action to agitate the impugned order.

Leaving this matter aside and adverting to the

main issue involved in this case, I find that

the misuse which was the basis for the passing

of the impugned order has been removed and the

booth is being used for the purpose for which

it was sold. I, therefore, do not find any

justification to deprive the hirer of this

booth to hold back this property. In this back

ground the allotment of the booth is restored

to its hirer Sh. Madan Mohan Singh. Since the

booth had been put to misuse the amount of

forfeiture shall stand and should be paid

within thirty days reckonable from the date of

issue of this order.

Announced in the presence of the parties.

Chandigarh Dated the, Chief Administrator”

4

th March, 1986 Chandigarh Administration

 Dated : 13.03.86.”

13. We may notice one more finding rendered by the

Additional District Judge in appeal filed by the

respondent against the order passed for eviction

under the Public Premises (Eviction of Unauthorised

14

Occupants) Act. The appeal was dismissed by the

Additional District Juge on 10.10.1985. However, in

paragraph 4 the Additional District Judge has made

the following observation:

“4. I have heard and have perused the file. A

perusal of the file shows that the booth

belonged to Shri Madan Mohan Singh. The said

Madan Mohan Singh appeared before the Estate

Officer and produced the record to show that

the appellant was in possession of the premises

as his employee. This position was found to be

true by the Estate Officer. Even thereafter a

notice was issued to Shri Ved Prakash which was

served on him. In appeal a copy of the original

affidavit has been placed on the file by the

landlord to show that the appellant agreed to

work on the premises as an employee on salary

of Rs.320/- P.M. In view of the position it

becomes clear that the appellant is not in

possession of the premises in his own right

either as a tenant or a licencee. Rather his

possession is only as an employee.”

14. We have noticed Clause 19 of the Allotment Order

in which, it is the Estate Officer, Chandigarh

Administration who has full rights, power and

authority for the purpose of enforcing compliance

with all or any of the terms, conditions of allotment

15

dated 20.06.1972. It is further relevant to note that

Booth was resumed by the Estate Officer by order

dated 09.09.1980 (issued on 15.04.1982) on the ground

of uses of the premises not for cattle poultry feed

but cycle/autorickshaws repairing. The Chief

Administrator in his judgment dated 13.03.1986, which

order was passed in appeal filed by the defendant

against the resumption order, has observed after

hearing the argument of hirer that the respondent is

only a servant of the hirer. The above observation

and finding of the Chief Administrator cannot be

wished-away by the defendant as irrelevant. The High

Court while referring to the order of the Chief

Administrator has only observed that the Appellate

Court has misread that defendant had taken a stand

that he was merely a servant, which is against the

record. When the Administrator has noted the case of

the parties and came to the conclusion that defendant

was a servant of the hirer, those findings cannot be

said to be against the record. The specific findings

of the Chief Administrator are “The consideration of

16

argument put forward by Sh. Kaushal and that of the

evidence adduced before me by him lead me to conclude

that the appellant being a servant of the hirer has

no cause of action to agitate the impugned order”.

Further the Chief Administrator has held that there

is no justification to deprive the hirer of the

Booth. In view of the order of Chief Administrator

dated 13.03.1986, the appellant-plaintiff was clearly

entitled to the possession and user of the Booth but

when the possession was not handed over by the

defendant to the appellant, he had to file the suit

for mandatory injunction.

15. The defence which was taken by the defendant

before the trial court by filing written statement

and by appearing in the evidence was that he is a

tenant of the premises which was let out to him on

18.12.1976 at the rate of Rs.450/- per month.

16. We may first notice the finding of the trial

court by which trial court held that defendant was

tenant of the premises. The trial court framed the

17

Issue No.4, “whether the defendant is a tenant” ? The

trial court while answering Issue No.4 recorded the

following finding:

“Therefore, the defendant has to be held to be

a tenant in respect of the booth in question

notwithstanding the fact that the defendant

failed to prove any documents pertaining to the

tenancy. Therefore, this issue is also decided

in favour of the defendant and against the

plaintiff.”

17. The categorical finding recorded by the trial

court is that the defendant failed to prove any

documents pertaining to the tenancy. The tenancy is a

relationship which is created between two parties.

The agreement of tenancy can be both by writing or

oral. Even if there is oral agreement of tenancy, the

Court has to look into the circumstances and

intention of the parties and other material to

conclude as to whether there was any tenancy or not.

The present is not a case where defendant claimed any

rent agreement. The defendant has come up with a case

that he is paying rent at the rate of Rs.450/- per

month. Defendant in his written statement has stated

18

that plaintiff has never issued any rent receipt.

Thus, present is not a case where there was any rent

receipt filed by the defendant in support of his

claim of tenancy. The defendant himself appeared as

DW-2. In cross-examination following statement was

made by DW-2:

“No rent note was written in December, 1976

regarding booth in question. I have no receipt

in my possession with regard to payment of

rent. I maintain books of account in the

regular course of business with regard to the

business being carried out in the shop. I

cannot produce the account books with regard to

the business being done in the shop. I have not

maintain any account with regard to payment of

rent to the plaintiff. I have sent the rent by

money order to the plaintiff, but the plaintiff

never received any money order and I cannot

produce any receipt of the money order vide

which the plaintiff would have accepted the

rent with regard to the premises.”

18. This court had laid down in C.M. Beena and

another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595,

that conduct of the parties before and after the

creation of relationship is relevant for finding out

their intention.

19

19. When there is no evidence of taking premises on

rent and it is admitted by DW-2 that he had not

maintained any record of accounts of payment of rent,

there is no base for holding that relationship of

landlord and tenant is proved. The trial court

itself has held that defendant had failed to prove

any documents pertaining to tenancy. The First

Appellate Court, thus, has rightly come to the

conclusion that findings of the trial court that the

defendant is a tenant is based on the surmises and

conjectures.

20. One more fact to be noticed is that the defendant

claimed his tenancy with effect from 18.12.1976. On

18.12.1976, admittedly partnership deed was signed

both by the plaintiff and defendant which was before

the Court. The defendant had not denied the execution

of partnership deed but he wanted to wish-away the

partnership deed saying that it was a sham document

to save the hirer from rigours of clause 12 of the

Allotment Order. When the parties signed a document

20

and entered into a partnership deed, they cannot wish

away the consequences which flow from the signing of

deed. The plaintiff having categorically denied the

tenanacy and there being no evidence with regard to

the tenancy, we do not find any error in the judgment

of the First Appellate Court that defendant was not a

tenant of the premises. We do not find any error in

the judgment of the First Appellate Court holding

that defendant was not a tenant of the premises.

21. When Clause 12 of the Allotment Letter as noted

above prohibits the hirer from subletting the

premises or any part thereof, it is the decision of

the Chief Administrator which shall be binding on the

parties. The relevant portion of Clause 12 in this

regard is “You will not sublet the premises or any

part thereof. If there is any dispute as to whether

the premises have been sublet or not the decision of

the Chief Administrator, Chandigarh, on the point

shall be binding on the parties”. As noted above,

Chief Administrator in its order dated 04.03.1986

21

which was passed in the appeal filed by the defendant

himself, has concluded that the Ved Prakash-defendant

(respondent herein) was a servant of the hirer. The

said decision by clause 12 is final between the

parties and it is not open for the defendant to plead

contrary to the above. Both the trial court and the

High Court have erred in not taking in consideration

Clause 12 and finding of the Chief Administrator in

its order dated 04.03.1986. The finding of the Chief

Administrator dated 04.03.1986 which was passed after

the order of the Estate Officer cannot be wished away

by the defendant nor can be ignored while deciding

the question as to whether the premises were sublet

to the defendant or not.

22. We may also notice that the High Court while

deciding the Regular Second Appeal filed by the

defendant has also decided Regular Second Appeal

filed by the appellant-plaintiff which arose from

the Suit No.77 of 1986 filed by the plaintiff

seeking relief for permanent and mandatory

22

injunction, restraining the defendant from using

the Booth No.186 for cycle repairs. The Regular

Scond Appeal No.2610 of 2002 filed by the

plaintiff-appellant has also been dismissed. In

view of our decision that Suit No.77 of 1986 filed

by the appellant deserved to be decreed and had

rightly been decreed by the First Appellate Court,

the judgment of the High Court in RSA No.2610 of

2002 is of no avail.

23. In view of the foregoing discussions, we allow

these appeals and restore the judgment of the First

Appellate Court dated 02.12.1996. The Estate

Officer, Chandigarh Administration shall ensure

that the appellant is immediately put in possession

of the premises of Booth No.186. It shall be open

for the appellant to take appropriate proceedings

to recover the damages and mesne profit for the use

23

of premises by the defendant. The appeals are

allowed with costs.

......................J.

 ( ASHOK BHUSHAN )

......................J.

 ( R. SUBHASH REDDY )

New Delhi,

March 05, 2021.

Respondent No.4 continued to work in the State of Uttar Pradesh by virtue of interim orders passed initially by the High Court of Judicature at Allahabad and later by this Court. He did not make any attempt to have his case considered for promotion to IAS when his juniors in the SCS Officers cadre were being promoted to IAS from the State of Uttarakhand. 7 | P a g e He could have made a request for consideration of his case without prejudice to the ongoing litigation in this Court. Admittedly, he did not lodge any protest or prefer any objection at the time of promotion of the Appellants to IAS. Even after the SLP filed by him was dismissed, an attempt was made for his retention in the State of Uttar Pradesh. As the Union of India did not accept the request made by the State of Uttar Pradesh to retain Respondent No.4 in Uttar Pradesh, having no other alternative he joined the State of Uttarakhand. No fault can be found with Respondent No.4 for pursuing his legal remedies. However, he cannot now seek to disturb settled matters, especially those relating to seniority of others during the period in which he was serving in the State of Uttar Pradesh. In other words, the inclusion of the Appellants in the select list of IAS cannot be reviewed at the behest of Respondent No.4 at this stage.

  Respondent No.4 continued to work in the State of Uttar Pradesh by virtue of interim orders passed initially by the High Court of Judicature at Allahabad and later by this Court. He did not make any attempt to have his case considered for promotion to IAS when his juniors in the SCS Officers cadre were being promoted to IAS from the State of Uttarakhand. 7 | P a g e He could have made a request for consideration of his case without prejudice to the ongoing litigation in this Court. Admittedly, he did not lodge any protest or prefer any objection at the time of promotion of the Appellants to IAS. Even after the SLP filed by him was dismissed, an attempt was made for his retention in the State of Uttar Pradesh. As the Union of India did not accept the request made by the State of Uttar Pradesh to retain Respondent No.4 in Uttar Pradesh, having no other alternative he joined the State of Uttarakhand. No fault can be found with Respondent No.4 for pursuing his legal remedies. However, he cannot now seek to disturb settled matters, especially those relating to seniority of others during the period in which he was serving in the State of Uttar Pradesh. In other words, the inclusion of the Appellants in the select list of IAS cannot be reviewed at the behest of Respondent No.4 at this stage.

Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.495 of 2021

 (Arising out of SLP (C) No. 2288 of 2019)

Vinod Prasad Raturi & Ors. .... Appellant(s)

Versus

Union of India & Ors. …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. In this Appeal the correctness of the order of the High

Court directing the respondents in Writ Petition to conduct a

review Departmental Promotion Committee (DPC) for

considering allotment of the 4th Respondent to earlier batch.

2. The State of Uttar Pradesh was reorganized under the

Uttar Pradesh Reorganization Act, 2000 (hereinafter referred

to as “the Act”). The State of Uttarakhand was created

pursuant to the said Act. The Central Government issued

guidelines on 30.09.2000 for allocation of erstwhile

employees of the State of Uttar Pradesh amongst the two

States. A tentative final allocation list was prepared and

1 | P a g e

circulated to the employees calling for their objections, if

they were aggrieved by the proposed final allocation. A

State Advisory Committee was constituted by the Central

Government. The State Advisory Committee prepared a list

of State Civil Service (SCS) Officers on the basis of their

seniority for allocation to the State of Uttarakhand. Though,

some of the officers joined the services in the State of

Uttarakhand, there were others who objected to their

allotment. Writ Petitions were filed in the High Court of

Judicature at Allahabad questioning the allotment to the

State of Uttarakhand. Appellant No.2 was also a party to the

Writ Petition. The High Court stayed the orders of allocation

during the pendency of the Writ Petitions.

3. After considering the objections received from the

aggrieved parties, the Central Government issued the final

allocation list on 22.04.2003 in accordance with Section 73 of

the Act. By a judgment dated 11.12.2003, the High Court

dismissed the Writ Petition filed by Appellant No.2 and others

challenging the allocation to the State of Uttarakhand.

Aggrieved by the judgment of the High Court, Appellant No.2

and other SCS Officers including Respondent No.4 filed

Special Leave Petitions (SLPs) in this Court. By an order

2 | P a g e

dated 07.01.2004, this Court directed the authorities to

maintain the status quo.

4. The State of Uttarakhand communicated to the

Government of India by a letter dated 09.01.2011 that 9

vacancies in the Indian Administrative Services (IAS) cadre

for the select list for the year 2010 were available. 2

additional vacancies had arisen in the year 2009. In all,

there were 11 vacancies in the IAS cadre in 2011. Appellant

No.2 withdrew SLP (C) No.24078 of 2003. Thereafter, a final

allotment order was passed by the Government of India,

pursuant to which the Appellant No.2 joined the State of

Uttarakhand on 15.04.2011.

5. The Appellants were included in the select list for 2011

and they were promoted to IAS in the vacancies determined

in accordance with Regulation 5(1) of the IAS (Appointment

by Promotion) Regulations, 1955.

6. SLPs filed by Respondent No.4 and others against the

judgment of the High Court were dismissed on 12.02.2015.

Thereafter, Respondent No.4 filed a Review Petition which

was also dismissed by this Court. On 09.06.2015, the

Government of India allocated Respondent No.4 and other

PCS officers to the State of Uttarakhand. The request made

by the Government of Uttar Pradesh for retention of

3 | P a g e

Respondent No.4 in the State of Uttar Pradesh was rejected

by the Central Government by order dated 25.06.2015. The

Government of India on 02.09.2015 reiterated its direction of

allocation of Respondent No.4 and others to the State of

Uttarakhand. Respondent No.4 was relieved on 28.09.2016

from Uttar Pradesh and thereafter, he joined the services of

the State of Uttarakhand on 01.10.2016. A seniority list of

State Civil Services Officers (Executive Branch) was prepared

on 20.02.2017. Respondent No. 4 submitted his objections

to the tentative seniority list wherein he requested for the

period of service rendered by him in Short Service

Commission of the Indian Army and as Deputy

Superintendent of Police to be counted for the purpose of

calculating the total qualifying services. A final seniority list

of SCS Officers (Executive Branch) was issued on 17.03.2017.

Respondent No.4 made a representation on 23.11.2017

requesting to induct him in the IAS cadre with seniority being

restored as per the seniority in the feeder cadre of PCS.

Respondent No.4 was promoted to IAS on 09.01.2018 and

allocated the year of allotment as 2010. As his juniors were

given the year of allotment from 2005 onwards, Respondent

No.4 requested for revision of his seniority in the IAS cadre.

He requested for a review DPC to be held in view of the

4 | P a g e

allocation of his juniors in earlier batches. As there was no

response to his representation, Respondent No.4 filed a Writ

Petition seeking direction to the Respondents-therein to

conduct review DPC and to consider his case for allotment in

the All India Services as per his seniority in SCS (Executive

Branch). On 20.06.2018, the High Court disposed of the Writ

Petition with direction to the Respondents to hold a review

DPC within a period of six months.

7. We have heard Mr. V. Shekhar, learned Senior Counsel

appearing on behalf of the Appellants and Mr. Rupinder Singh

Suri, learned Additional Solicitor General appearing on behalf

of the Union of India and Mr. V.K. Shukla, learned Senior

Advocate for Respondent No. 4. The Appellants contended

that the High Court committed an error in directing the

review DPC to be conducted without hearing them. The

Appellants were not even made parties in the Writ Petition. It

is well settled law that persons who are likely to be affected

have to be heard before any order likely to affect them is

passed. According to the Appellants, Respondent No.4

continued to serve in the State of Uttar Pradesh by virtue of

an interim order passed by this Court. Till the year 2016,

Respondent No.4 did not make any request for consideration

of his case for induction to IAS cadre from the State of

5 | P a g e

Uttarakhand. Moreover, Respondent No.4 did not protest

when the Appellants were being inducted in the IAS cadre.

As Respondent No.4 was not in the State of Uttarakhand

when the Appellants were being promoted to IAS cadre, he

cannot raise any grievance at this stage. It was further

submitted on behalf of the Appellants that Respondent No. 4

was considered for promotion to IAS cadre while he was

working in the State of Uttar Pradesh. Respondent No.4

contended that the order passed by the High Court which is

innocuous in nature should not be interfered with by this

Court in exercise of its jurisdiction under Article 136 of the

Constitution of India. It was submitted on his behalf that his

allotment to the State of Uttarakhand is with effect from

09.11.2000 and he is entitled to get all the benefits including

his seniority. Admittedly, juniors to Respondent No.4 were

promoted earlier than him. The request made by

Respondent No.4 to review his seniority in the SCS Officers is

legitimate. It was pointed out on behalf of Respondent No.4

that the Union of India also supports his plea that a review

DPC has to be conducted. It was pointed out on behalf of the

Union of India that the final allocation of SCS Officers was

delayed due to pendency of the SLPs in this Court. After

dismissal of the SLPs, final allocation was made. On the

6 | P a g e

basis of the order passed by the High Court in the Writ

Petition filed by Respondent No.4, a decision was taken by

the Central Government to hold a review DPC which could

not be completed in view of certain objections taken by the

State of Uttarakhand.

8. The dispute that arises for consideration of this Court is

regarding the reconsideration of Respondent No.4 for

inclusion in an earlier select list for promotion to IAS in State

of Uttarakhand. As stated above, Respondent No.4 was

finally allocated to the State of Uttarakhand only in the year

2016 after the dismissal of the SLPs filed by them.

Respondent No.4 requested for reviewing his allotment to his

inclusion in the select list prepared for earlier years by

restoring his seniority in the SCS Officers cadre. This request

was made due to the promotion of his juniors in the SCS

Officers cadre to IAS by being included in the select list of

earlier years.

9. Respondent No.4 continued to work in the State of Uttar

Pradesh by virtue of interim orders passed initially by the

High Court of Judicature at Allahabad and later by this Court.

He did not make any attempt to have his case considered for

promotion to IAS when his juniors in the SCS Officers cadre

were being promoted to IAS from the State of Uttarakhand.

7 | P a g e

He could have made a request for consideration of his case

without prejudice to the ongoing litigation in this Court.

Admittedly, he did not lodge any protest or prefer any

objection at the time of promotion of the Appellants to IAS.

Even after the SLP filed by him was dismissed, an attempt

was made for his retention in the State of Uttar Pradesh. As

the Union of India did not accept the request made by the

State of Uttar Pradesh to retain Respondent No.4 in Uttar

Pradesh, having no other alternative he joined the State of

Uttarakhand. No fault can be found with Respondent No.4 for

pursuing his legal remedies. However, he cannot now seek

to disturb settled matters, especially those relating to

seniority of others during the period in which he was serving

in the State of Uttar Pradesh. In other words, the inclusion of

the Appellants in the select list of IAS cannot be reviewed at

the behest of Respondent No.4 at this stage. No doubt, the

allocation of Respondent No.4 dates back to 09.11.2000.

However, Respondent No.4 cannot be permitted to seek

review of the promotions made while he was serving the

State of Uttar Pradesh. The promotion of the Appellants

cannot be disturbed by the 4th Respondent who continued to

work in Uttar Pradesh of his volition. The High Court

committed an error in directing a review DPC to be

8 | P a g e

conducted without hearing the affected parties and without

realising that there was a likelihood of seniority of other

officers being disturbed.

10. For the aforementioned reasons, the judgement of the

High Court is set aside and the Appeal is allowed.

 .....................................J.

 [ L. NAGESWARA RAO ]

 .....................................J.

 [ S. RAVINDRA BHAT ]

New Delhi,

March 05, 2021.

9 | P a g e

whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty. The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained.

 whether the Tribunal proceeded correctly in passing the final direction to impose appropriate minor penalty. The Tribunal itself did not impose the punishment but left it to the authority concerned (for appropriate course of action). It was of the view that considering the findings of procedural lapses against the respondent, the appropriate punishment could only be a minor penalty and not a major penalty. With this again, we are in agreement with the course of action adopted. The nature of charges found against the respondent can hardly be one to call for a major penalty, keeping in mind that there was no bribery charge. Anyone can make mistakes. The consequences of mistakes should not be unduly harsh. We are, thus, of the view that the direction of the Tribunal is what is liable to be sustained. 

 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3592-3593 OF 2020

UNION OF INDIA AND ORS. ….APPELLANTS

VERSUS

P. BALASUBRAHMANAYAM ….RESPONDENT

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. The respondent joined the Department of Posts as Postal Assistant in

the year 1991 and earned his promotion from time to time to Assistant

Superintendent of Posts in the year 2008, a Group-B Gazetted cadre post. A

charge memo bearing No. Vig/105/10 dated 13.04.2010 (hereinafter referred

as “the Memo”) was issued to him by the Disciplinary Authority, Department

of Posts under Rule-14 of the Central Civil Services (Classification, Control

and Appeal) Rules, 1965 (hereinafter referred as “the 1965 Rules”). The

Memo enumerated 9 charges. Suffice to say that certain charges related to

procedural lapses in discharge of duties while another set of charges dealt

1

with alleged illegal gratification received by way of bribes. Accordingly,

violation of duties under the Central Civil Services (Conduct) Rules, 1964 was

alleged.

2. The respondent contested the Memo at the threshold itself on the

ground that the charges included allegations of bribery and thus had a

vigilance angle. As such, it was averred that it could not have been issued

without prior approval of the Central Vigilance Officer (hereinafter referred as

“CVO”) as mandated by a circular dated 18.01.2005 of the Department of

Posts, Ministry of Communication and I.T. (hereinafter referred to as “the

Circular”). The Circular advised that all cases of officers below the level of

Group ‘A’ involving vigilance angle should be referred to the Directorate for

consideration and advice by the CVO of the relevant department. Even for

closing the cases after a preliminary enquiry report, the procedure was

stated to be mandatory. The circular reads as under:

“Confidential

No.7-4/CVC/2004-Vig

Government of India

Ministry of Communication & I.T.

Department of Posts

Dak Bhawan, Sansad Marg

New Delhi-110001

Dated: 18.1.2005

To

All Principal Chief Postmaster General,

All Chief Postmaster General,

Director Postal Staff College India, Ghaziabad

Additional DG, Army Postal Service,

Chief Engineer (Civil), Headquarters

All Directors, Postal Training Centres

(By name)

2

Subject: Jurisdiction of Central Vigilance Commission in retain (sic)

to Officers of the level of Group ‘B’ Gazetted.

……

I am directed to invite attention to this office Memo of even

number dated 31st May 2004 on the subject captioned above vide

which a copy of office order No.98/VGL/15 dated 16.04.2004 from

Central Vigilance Commission was sent to you for

information/necessary action as also for bringing the same to the

notice of all concerned.

2. It may be recalled that as per the previous guidelines vigilance

cases of the Gazetted Officers of the Central Government and its

equivalent in other Government Organizations were to be referred to

the Central Vigilance Commission (CVC) for advice. However, vide

their aforesaid Office Order dated 16.04.2004, the Commission have

delegated their powers to the Central Government

Ministries/Organisations with regard to vigilance cases of Gazetted

Officers below Group ‘A’ of Central Government, viz., officers of the

level of Group ‘B’ Gazetted.

3. While delegating their powers, the CVC felt that appropriate

expertise is available to the CVO and expected that the CVO would

exercise proper check and supervision over vigilance cases of officers

of the level of Group ‘B’ Gazetted and would also ensure that the cases

of these officers are disposed of expeditiously within the time frame

stipulated by the Commission and further that the punishment

awarded to these officers would commensurate with the gravity of the

misconduct established on his part. The Commission is further noted

that if they come across any matter, which in their opinion, is (sic) not

been handled properly, it may recommended (sic) its review by the

appropriate authority or may give such directions as it considers

appropriate.

4. In view of the above delegations and expectations of the CVC, all

the Heads of Circles and other concerned authorities are hereby

advised that all cases of officers below the level of Group ‘A’ involving

vigilance angle should be continued to be referred to the Directorate

for consideration and advise by the CVO of the Department. The CVO,

may in turn, advise for closure of the case/initiation of major/minor

penalty action/any other administrative action as deemed fit and

proper in the circumstances of the case as also keeping in view of the

recommendation of the Head of the Circle.

3

5. It may again be reiterated that above procedure is mandatory

and is to be followed in all cases involving vigilance angle including

those ones where the Heads of the Circle are of the opinion that the

case needs to be closed, after evaluation of the preliminary inquiry

report.

6. The CVC has further reiterated that their advice would also be

necessary in cases of difference of opinion between the disciplinary

authority and the CVO with regard to the action to be taken against

officers who are not within the jurisdiction of the Commission if these

differences cannot be resolved with the intervention of the Secretary of

the Ministry or Head of the Department concerned.

7. Further, in respect of composite cases involving Group ‘A’ level

officers and other Group ‘B’ or even lower level officials, the advice of

the Central Vigilance Commission will be required as before.

8. The Heads of Circles may please note the above instructions and

ensure strict compliance of the same.

Sd/-

(S.C. BARMA)

DIRECTOR (VIG)

Copy also forwarded for information/necessary action to:

1. Sr. PPS to Secretary (Posts).

2. Member(P), Member (D), Member (O).

3. Sr. D.D.G.(C.P.).

4. CGM, PLI/CGM(BD)/JS&FA.

5. All DDsG/Secretary (Postal Services Board)

6. ADG(Vig-1), ADG(Vig-II) & ADG(Vig-III), Postal Directorate.

7. Guard Filed.

Sd/-

(P.H. PILLAI)

SECTION OFFICER(VIG)”

3. In this background, the respondent assailed the Memo by filing OA No.

421 of 2015 before the Central Administrative Tribunal at Hyderabad

(hereinafter referred to as “the Tribunal”). The validity of the Memo was

inter alia assailed on the grounds that (a) the mandatory advice of the CVO

4

had not been obtained; (b) the charge memo was vague, non-specific, and in

violation of sub-Rule (i)(3) of Rule 14 of the 1965 Rules, and (c) that there

had been an inordinate delay in concluding the proceedings. The appellant

department contested the petition and the tribunal decided against the

respondent by order dated 19.09.2016. We may notice at this stage that the

litigation before the Tribunal was not the first round of litigation but was

preceded by earlier petitions being filed. The Tribunal opined that the issue

of the prior approval of CVO had already been dealt with in an earlier

proceeding initiated by the respondent in O.A. No. 861 of 2013. There, it was

concluded that the approval was more of a safeguard against dropping of

inquiry proceedings against delinquent officials on fictitious grounds.

Additionally, the delay in concluding the proceedings was held to be

attributable to the respondent on account of repeated petitions alleging bias

and related appeals preferred by him. In this context, a direction was issued

to conclude the inquiry within 6 months. This order was assailed by the

respondent by filing a Writ Petition No. 42546 of 2016 on the sole ground

that the Memo had not been issued in compliance of the Circular. The High

Court opined that the Circular did not mandate any prior approval of the CVO

before issuance of the memo. It was also noted that not all charges against

the respondent revolved around allegations of bribery. The respondent then

approached this Court by way of SLP(C) No.9571 of 2017.

5

4. Meanwhile, the departmental proceeding against the respondent

culminated in an adverse report against him bearing, Memo No.

Vig/Misc./VM/2012/II dated 24.03.2017 (hereinafter referred to as “the 2017

Memo”) was issued. In terms of the 2017 Memo, none of the charges of

bribery were made out against the respondent but all charges relating to

procedural lapses on the part of the respondent were held to have been

proved. The respondent was inflicted with a punishment of compulsory

retirement from service with immediate effect.

5. SLP(C) No.9571 of 2017 was listed after this on 05.04.2017 and was

disposed of in view of the aforesaid final order having been passed but with

the liberty to the respondent to re-agitate the issue by challenging the order

of punishment in the 2017 Memo.

6. Pursuant to this, the next round was initiated by the respondent by

filing OA No. 344 of 2017 before the Tribunal assailing the Memo inter alia on

the ground of non-compliance with the Circular. The Tribunal gave its verdict

on 27.02.2019. It is material to note that the Tribunal took the view that,

since the bribery charges were not proved, the case of the respondent could

not be said to be prejudiced by not referring it to the CVO. Additionally, on

the argument of the respondent that sufficient opportunity to produce

documents and witnesses was not provided, the Tribunal found that the

procedural lapses had been found against the respondent on the basis of

6

certain admissions and explanations offered by him. As such, it was felt that

on the appreciation of evidence, the conclusion was just and proper.

7. Thereafter, the Tribunal proceeded to examine the issue of

proportionality of punishment. It found that the punishment of compulsory

retirement was unduly harsh and shockingly disproportionate considering

that none of the bribery charges had been found sustainable. To that extent,

the order of the disciplinary authority was set aside with a direction to

impose an appropriate minor penalty instead within 8 weeks.

8. This order was assailed by both the parties before the High Court of

Andhra Pradesh by filing Writ Petitions Nos. 3646 and 8606 of 2019. The

respondent sought quashing of the proceedings ab initio on the ground that

the Circular, read with Rule 12 of the Postal Manual Volume III, would totally

vitiate the entire proceedings.

“Postal Manual Volume III

Consultation with Central Vigilance Commission

12. In all Vigilance cases relating to Gazetted officers, the

Central Vigilance Commission should be consulted during the

progress of the case at the following stages:

xxxx xxxx xxxx xxxx

(v) The report of the Enquiry Officer conducting oral

enquiry into any departmental proceedings together with the full

record of the case should be forwarded to the Central Vigilance

Commission who will advise the disciplinary authority concerned

as to the course of further action to be taken.

xxxx xxxx xxxx xxxx”

7

The appellants, on the other hand, were aggrieved by the direction on the

issue of punishment.

9. In terms of the impugned judgement of the High Court dated

22.07.2019, it was opined at the outset that there may be some difficulty in

distinguishing vigilance cases from non-vigilance cases. The Circular and

Rule 12 had to be read in the context of safeguarding the interest of the

employees and to avert initiation of disciplinary proceedings in unwarranted

circumstances. The case of the respondent was said to have a vigilance

angle as it involved allegations of bribery. On the plea of the appellants that

the issue was resolved in the earlier proceedings, it was held that there was

no finality to that issue. The effect of Rule 12 of the Postal Manual had not

been considered before, and no finding was recorded for the same. It was

also noted that the Supreme Court, while disposing SLP No. 9571 of 2017

arising out of the earlier had given liberty to agitate this issue. The writ

petition filed by the respondent was allowed with an order that the direction

of imposition of minor penalty be set aside. The petition filed by the

appellant was dismissed and the authorities were directed to reinstate the

respondent into service with all consequential benefits.

10. Leave was granted in the present matter on 29.10.2020 and the

contempt proceedings were directed to be kept in abeyance.

8

11. Mr. K.M. Nataraj, learned Addl. Solicitor General substantively urged on

the premise that there was no mandatory requirement to obtain CVO’s

advice before initiating disciplinary proceedings. More so, this procedural

requirement was co-relatable to vigilance cases alone. In the alternative, it

was urged that this, in any case, would not vitiate the entire proceedings as

the administrative rules, regulations and instructions would not have

statutory force and would not give rise to any legal rights in favour of any

parties. In this behalf, reliance was placed in the judgment of Union of India

and ors. vs. Alok Kumar

1 where a pari materia circular of the Central

Vigilance Commission was considered. In that behalf, it was opined that the

test which is to be applied is whether any prejudice was caused to the

employee by not obtaining of the CVC’s advice at the first stage. It was

concluded that no prejudice had been caused in that case.

12. Learned ASG also made a reference to Chief Commercial Manager,

South Central Railway, Secunderabad & Ors. vs. G. Ratnam & Ors.

2

 In the

given facts of the case, Indian Railways Vigilance Manual, 1996, more

specifically paras 704 and 705, were examined qua the instructions

contained therein and the consequence of non-compliance thereof by the

investigating officer dealing with the departmental trap. The instructions

were held to be procedural in character and not of a substantive nature and

they were meant not for the delinquent officer but for guidance of the

1 (2010) 5 SCC 349

2 (2007) 8 SCC 212

9

investigating officer. Thus, a violation thereof ipso facto was held not to

vitiate the departmental proceedings.

13. On the other hand, the respondent, who appeared in-person,

contended that the Circular was statutory in nature as it was issued under

the authority of the Central Vigilance Commission, being a statutory body.

Thus, the procedure prescribed by the Circular and Rule 12(v) of the Postal

Manual Vol. III was mandatory, which was not complied with. The respondent

relied on a few judgments in this behalf3

. It may be observed that the same

were generic in character on the point of non compliance with executive

instructions. Thus, if procedural safeguards are provided, these judgments

note, the same should be observed as they prevent any arbitrary exercise of

power. In fact, in one of the cases, the expression used is “a departmental

instruction cannot totally be ignored”4

 [emphasis supplied]. The principle

propounded was that any wanton or deliberate deviation in implementation

of the rules could breed indiscipline among the services and amount to

undue favour to some while denial of equality among many5

. Suffice to say,

that in order that such executive instructions have force of statutory rules, it

must be shown that they have been issued under the authority conferred on

3 Veerender Kumar Dubey v. Chief of Army Staff (2016) 2 SCC 627; Moni Shankar v. Union of

India (2008) 3 SCC 484; Jt. Action Committee of Airlines v. Director General of Civil Aviation

(2011) 5 SCC 435; A.N. Sehgal & Ors. v. Raje Ram Sheoran 1992 Supp.(1) SCC 304; Union of

India v. K.P. Joseph & Ors. (1973) 1 SCC 194; Chief Commercial Manager v. G. Ratnam (2007)

8 SCC 212

4 Moni Shankar case (supra)

5 A.N. Sehgal case (supra)

10

the Central Government or the State Government by some statutes or under

some provisions of the Constitution providing therefor6

.

14. We may add that the respondent also sought to contend that the

action of the appellants was retributive in character as he had earlier

endeavoured to highlight the manipulations in the result of Postal Service

Group-B cadre examinations and the legal proceedings that followed

therefrom.

15. We have given thought to the aforesaid limited controversy and

examined the records. We are of the view that the reliance on the Circular

really does not help the case of the respondent inter alia for the reason that

once it is found that the case does not have a vigilance angle, albeit after

conclusion of inquiry, no prejudice can be said to have caused to the

respondent. If we may say so, the fairness of the departmental proceedings

is obvious on the fact that all charges relating to bribery had been held in

favour of the respondent and those charges have been rejected. The only

charges found proved are of procedural irregularities, over which there are

concurrent findings of the relevant authorities based on certain admissions

made by the respondent himself. The proceedings have also got prolonged

because at every stage the respondent sought to challenge them in judicial

forums, and that too not very successfully.

6 Chief Commercial Manager case (supra)

11

16. We find it difficult to disturb the findings of the disciplinary authority

insofar as the procedural lapses are concerned. It really shows that there was

negligence on the part of the respondent in performing his duties. That being

so, we do not feel it was appropriate for the High Court to have set aside the

result of the proceedings against the respondent by giving him a clean chit

on the issue as a consequence of the Circular not being followed. It would be

right to say that suppose these charges of bribery had not been levelled and

only procedural lapses were examined, this plea would not have been open

to the respondent.

17. In the facts of the case, the result has arisen after the inquiry but then,

at the cost of repetition we may say, there are no adverse consequences to

the respondent with respect to the bribery charges, but in fact favourable

consequences.

18. We are, thus, of the view that the course adopted by the Tribunal was

the appropriate course of action, i.e., the procedural lapses having been

found and the bribery allegation having been rejected the appropriate course

would have been to examine only the issue of disproportionality of

punishment.

19. It is correct to say that judicial forums do not sit as an appellate

authority to substitute their mind with the mind of the disciplinary authority

insofar as the finding is concerned. However, disproportionality of

12

punishment is a concept certainly not unknown to service jurisprudence and

has received consideration inter alia of this Court7

. This is what the Tribunal

proposed to do. We may examine the finding of the Tribunal on the issue of

disproportionality of punishment and are in complete agreement with the

view that the punishment of compulsory retirement was completely

disproportionate and harsh, keeping in mind the finding arrived at by the

disciplinary authority. It, thus, seems to appear that the charges originally

levelled may have persuaded the concerned authority to impose

punishment; losing site of the fact that the allegations qua bribery had not

been found against the respondent.

20. The question is whether the Tribunal proceeded correctly in passing the

final direction to impose appropriate minor penalty. The Tribunal itself did not

impose the punishment but left it to the authority concerned (for appropriate

course of action). It was of the view that considering the findings of

procedural lapses against the respondent, the appropriate punishment could

only be a minor penalty and not a major penalty. With this again, we are in

agreement with the course of action adopted. The nature of charges found

against the respondent can hardly be one to call for a major penalty, keeping

in mind that there was no bribery charge. Anyone can make mistakes. The

consequences of mistakes should not be unduly harsh. We are, thus, of the

view that the direction of the Tribunal is what is liable to be sustained.

7 S.R. Tewari v. Union of India and Anr. (2013) 6 SCC 602

13

21. The result of the aforesaid is that the impugned judgment of the High

Court is set aside and that of the Tribunal is restored. Necessary

consideration not having taken place, the appellants will do the needful in

terms of the order of the Tribunal within 8 weeks from today and giving all

consequential benefits thereof to the respondent. We hope that this long

drawn out service dispute would now come to an end after almost a decade.

22. The appeals are allowed in the aforesaid terms leaving parties to bear

their own costs.

……..……………………………….J.

 [SANJAY KISHAN KAUL]

……..……………………………….J.

 [HRISHIKESH ROY]

NEW DELHI.

MARCH 04, 2021.

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