LAW FOR ALL

Friday, April 22, 2022

once the adoption deed is void , the adopted son is not entitled for appointment on compensatory ground of the deceased employee

once the adoption deed is void , the adopted son is not entitled for appointment on compensatory ground of the deceased employee = One of the essentials of a valid adoption is that the child being given in adoption should be below 15years of age. Section 10 (iv) of the Hindu Adoption and Maintenance Act, 1956 makes this very clear. This section also shows that if there is a custom or usage applicable to the parties, this upper limit of 15 years is not applicable. In the case on hand, the petitioners have not pleaded let alone proved the existence of any custom or usage applicable either to the petitioner’s family or to his community in general. The existence of the custom and its applicability are matters of pleading and proof. The same are totally absent in the present case. The Hindu Adoption and Maintenance Act, 1956 spells out the essential conditions for a valid adoption. Section 4 says that the Act will have overriding effect over any Act/Rule, interpretation of Hindu Act or any custom or usage which is prevalent by then. Any other existing law before the Act was also cease to apply and in addition, Section 5 which is to the following effect makes it clear that any adoption made after the Act except in accordance with the provisions of the shall be void. -not entitled for appointment as deceased 's dependent .

AP HIGH COURT ; AMARAVATHI

W.P.No.16602 of 2020

KONDAMURI VIJAY AMBEDKAR

Versus
THE STATE OF AP

HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

W.P.No.16602 of 2020

ORDER :

This writ petition is filed seeking a writ of Mandamus

declaring that the endorsement dated 19.06.2020 passed by

respondent No.3 rejecting the claim of the petitioner for

employment as illegal, unjust, contrary to the award passed by

the Legal Services Authority.

This Court has heard Sri S.A.Razzaak, learned counsel for

the petitioner and the Government Pleader for Social Welfare.

The petitioner before this Court claims to be the adopted

son of one late Sri K.Deena Dayal. Sri K.Deena Dayal was

murdered on 08.04.2013. A case was registered under section

302 IPC., but after the investigation, the Police closed the case

as undetectable and a final report dated 04.02.2016 was also

filed in the Court. The petitioner, who claims to be the adopted

son of the deceased, is claiming for compensation and also

employment as per the provisions of the Scheduled Caste,

Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the

Amendment in 2015 (hereinafter referred to as the Act). Apart

from that, he submits that he has also entered into a

compromise with the other legal heir of K.Deena Dayal in a Lok

Adalat and as per the compromise, the petitioner is entitled to

compassionate appointment under the provisions of the Act.

Learned counsel for the petitioner argued the matter at

length and pointed out the various facts, the correspondence

that took place between the parties and argued that in view of

the amendment to the Act and Rules, the petitioner is entitled to

compassionate appointment. The contention of the learned

counsel is that the enactment itself and its amendments are

beneficial/welfare legislations which should be liberally

interpreted and would entitle the petitioner to seek

compassionate appointment under the relevant Government

Orders by which the rules have been framed. Learned counsel

argues that the award of the Lok Adalat is also binding on the

respondents and it is a valid compromise. He points out that

the petitioner, being the adopted son, is entitled to the

employment under G.O.Ms.No.3 dated 16.01.1996 as modified

later.

Relying upon the definition of ‘Family’ in G.O.Ms.No.43

dated 15.04.2015, the learned counsel argues that even if the

adoption is not correct, he fits within the definition of ‘family’

under clause 2 (e) since, he is Sri Deen Dayal’s brother's son.

The contention of the learned counsel for the petitioner is

therefore to the effect that the petitioner is entitled to

appropriate employment and the rejection of the same by the

respondent is not correct.

In reply to this, learned Government Pleader for Social

Welfare argues in line with the counter affidavit that has been

filed. It is his contention essentially that the provision of law on

which the petitioner is relying would only apply, if the adoption

is valid. In the case on hand, the learned Government Pleader

points out that the adoption deed is not valid and that on the

date of adoption, the petitioner was aged 18 years.

It is also his contention that after obtaining legal opinion,

the State has come to the conclusion that the petitioner is not

entitled to employment as the adoption itself is not valid. He

also submits that a declaration of “status” that is being sought

by the petitioner cannot be granted in a writ of this nature. The

validity of the adoption is the essential defense that is urged by

the learned Government Pleader for Social Welfare. The adoption

and its validity should be clearly pleaded and proved as per him

in an appropriate proceeding. He does not dispute the existence

of the provisions of the Act, or the facts which are detailed by

the petitioner. It is his essential contention that the adoption is

not valid and that consequently the petitioner is not entitled to

any relief in this writ.

This Court after hearing both the learned counsel notices

that the deed of adoption on which both the parties rely upon is

not really before this Court. The petitioner in his wisdom has

only challenged the action of the respondents in rejecting his

request for employment. He also pleaded in his writ affidavit

itself that the reliance on the age of the petitioner for deciding on

the validity of the adoption is not correct as the restriction of age

has no place in the community of Sudras to which the petitioner

belongs. He also argues that in the alternative, as the family

member and a relative by birth to the diseased K.Deena Dayal,

he is entitled to employment.

The fact that the deceased was murdered and the case was

closed is not in dispute. As far as the contention of the learned

counsel that age of the adopted child is not very material is

concerned, it is not supported by any law. The petitioner

admittedly is a Hindu. One of the essentials of a valid adoption

is that the child being given in adoption should be below 15

years of age. Section 10 (iv) of the Hindu Adoption and

Maintenance Act, 1956 makes this very clear.

This section also shows that if there is a custom or usage

applicable to the parties, this upper limit of 15 years is not

applicable. In the case on hand, the petitioners have not

pleaded let alone proved the existence of any custom or usage

applicable either to the petitioner’s family or to his community in

general. The existence of the custom and its applicability are

matters of pleading and proof. The same are totally absent in

the present case.

Even if the age of the petitioner is looked into, the writ is

filed in the year 2020 and he has been described as a person

aged about 32 years. This means he was born in 1988. As per

the parties the adoption is performed on 04.10.2004 which

means he was 16 on the date of the adoption. The Family

Members Certificate filed by the petitioner dated 24.05.2016

shows that he is aged 29 years on the date which means that he

was born in 1987 which makes him 17 years old by the time of

adoption in the year 2004. The representations on which the

Revenue Department relies upon states that he is aged 18 years.

Therefore, the available evidence and the documents do not

disclose clearly that the petitioner was aged below 15 years as

on the date of the alleged adoption.

The petitioner before this Court is challenging the order of

the State rejecting his claim for employment on the ground that

he did not fulfill his minimum age criteria prescribed under the

section mentioned above. Despite the rejection on this specific

ground, the petitioner did not plead or prove that the adoption is

valid and did not file any categorical proof of his age more so on

the date of adoption. Apart from this, this Court is also of the

opinion that the proof of adoption is necessary. The Hindu

Adoption and Maintenance Act, 1956 spells out the essential

conditions for a valid adoption. Section 4 says that the Act will

have overriding effect over any Act/Rule, interpretation of Hindu

Act or any custom or usage which is prevalent by then. Any

other existing law before the Act was also cease to apply and in

addition, Section 5 which is to the following effect makes it clear

that any adoption made after the Act except in accordance with

the provisions of the shall be void.

5. Adoptions to be regulated by this

Chapter- (1) No adoption shall be made after

the commencement of this Act by or to a

Hindu except in accordance with the

provisions contained in this Chapter, and any

adoption made in contravention of the said

provisions shall be void.

(2) An adoption which is void shall

neither create any rights in the adoptive

family in favour of any person which he or

she could not have acquired except by reason

of the adoption, nor destroy the rights of any

person in the family of his or her birth.

In addition, sections 6 to 11 deal with other requisites for a

valid adoption. In the opinion of this Court, since an adoption,

has the effect of disrupting the natural succession and has the

effect of conferring a certain status on the petitioner, it is a

matter of pleading and proof. The petitioner, whose claim has

been rejected on the ground that there is no valid adoption has

to necessarily establish his rights by adequate pleading and

proof that there was a valid adoption confirming to the legal and

factual requisites mentioned above and that there were actual

giving and taking of the child in adoption. These are matters of

pleading and evidence which will determine the status of the

individual and as such it is only a declaratory suit that can be

filed in a civil Court of competent jurisdiction and not a writ, in

the opinion of this Court, a writ petition is not a proper

proceeding for the relief sought.

Apart from these two issues, this Court finds that the

petitioner is also relying upon the decree passed in the Lok

Adalat between the daughter of late Deena Dayal and the

petitioner. It is important to note that the State is not a party

to this proceedings. The judgment/Award that was passed may

be binding between the parties to the said litigation, since it was

based upon some concessions. However, it cannot be said that

the same is conferring a right on the petitioner qua the State to

seek employment. The daughter of late Deena Dayal may not

have an objection and the award passed may operate as res

judicata/estoppel against her, but it does not confer right on the

person/petitioner to claim employment with the respondents.

The deed of adoption or its validity are not the subject matter of

the decision before the Lok Adalat. Therefore, this Court is of

the opinion that the award of the Lok Adalat is not binding on

the respondent-State.

Learned counsel for the petitioner also argued in the

alternative that even if the deed of adoption is not valid, the

petitioner is entitled to employment on the ground that he is a

blood relative and family member. He relies upon the definition

of ‘family’ clause (2)(e) of G.O.Ms.No.43 to support his argument.

However, a close reading of this G.O.Ms.No.43 shows that it is

passed/brought into existence only for the purpose of providing

funds for the purpose of compensation to the victims or their

dependents. These victims or their dependents suffer loss or

injury as a result of a crime and they require rehabilitation and

help. A dependant who is entitled to such help/assistance is

defined in section 2(b). The dependant must prove that he is

fully dependant on the victim before claiming the compensation.

Family also includes blood relations living in the same

household. In the opinion of this Court, Rule 7 of this G.O.

clarifies the procedure to be followed before the compensation is

to be granted. It is a matter of proof before the District Legal

Services Authority. The genuineness of the claim shall have to

be decided by the District Legal Services Authority. Section 9(a)

also provides upper limit or time period for filing of an

application. Therefore, this Court is of the opinion that

G.O.Ms.No.43 will not confer any status on the petitioner to

claim the relief particularly in this writ petition. This G.O. came

into force on 15.04.2015 itself, but the petitioner did not pursue

his claim as per the said G.O.

Relying upon the Amendment Act in 2015 to the

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015 (Act 1 of 2016), learned counsel argues

that the petitioner falls within the definition of a victim as per

the amended clause 2(ec) which as follows:

(ec) “victim” means any individual who

falls within the definition of the ‘‘Scheduled

Castes and Scheduled Tribes’’ under clause

has suffered or experienced physical, mental,

psychological emotional or monetary harm or

harm to his property as a result of the

commission, of any offence under this Act

and includes his relatives, legal guardian and

legal heirs;

However, this Court has to hold (after considering the

purpose for which this sub-section has been inserted) that it is

to confer a right to claim compensation on a victim and also his

relatives, legal guardian and legal heirs who have suffered or

experienced physical, mental, psychological or other harm.

Again in the opinion of this Court, this is a matter which has to

be established. The right to claim anything under this amended

section would arise if the petitioner is able to establish by virtue

of being a relative, he has suffered physical, mental or other

harm. The mere fact that the Act has an inclusive definition of

victim does not lead to irresistible conclusion that the petitioner

can claim employment on the basis of this definition.

Lastly, this Court notices that it is G.O.Ms.No.3 dated

16.01.1996 that gives a right to the petitioner to seek

employment. Annexure 1 to the G.O.Ms.No.3 deals with the

relief that can be granted for the various offences that are

described. Clause 21 deals with the murder and states that in

addition to the compensation payable for the murder, pension is

payable to the widow or other dependants of the deceased or

employment to one member of the family or provision of

agricultural land and houses. Therefore, this Rule by itself also

does not provide for an absolute right or confer an absolute right

on the petitioner to claim employment. In the opinion of this

Court, the definition of family in G.O.Ms.No.43 cannot also be

applied to the present case. Clause 21 gives the alternatives to

the State. The petitioner who wants to seek employment will

have to plead and prove that all the other sub sections would

not apply and that he fits within the definition of ‘member of a

family of the deceased’ for seeking employment. This basic

parameter is not met by the petitioner as he did not prove that

the adoption on which he relies is correct and is as per the law.

For all the above mentioned reasons, this Court is of the

opinion that the writ is not an appropriate proceeding and that

the petitioner has failed to prove that he has the necessary

status to claim employment. A declaration of status is the

proper remedy in this case. Unless and until the petitioner’s

status as the legal heir/adopted son is established in a

comprehensive civil suit, he is not entitled to any benefits.

The writ petition is misconceived and is dismissed. No

order as to costs.

As a sequel, the miscellaneous applications, pending if

any, shall stand dismissed.

________________________

D.V.S.S.SOMAYAJULU,J

Date : 15.06.2021

Note: L.R. copy be marked

KLP

Thursday, April 21, 2022

The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form “B” is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.In these circumstances, we are of the opinion that the Division Bench as also the Single Judge of the High Court did not appreciate the materials available in their proper perspective. We do not think that the view taken by the Division Bench was a possible view. Sustaining such view would result in depriving the appellant of his legitimate benefits under the applicable Voluntary Retirement Scheme. The materials relied upon by the appellant were ignored altogether. We thus set aside the judgment of the Division Bench. As a consequence, the judgment of the Single Judge also would stand set aside. The rejection order dated 13th October 2008 of the competent authority shall stand quashed. The respondent no.1 proceeded in the case of the appellant in an erroneous manner in treating the appellant’s date of birth to be 21st September 1945. We accordingly direct the respondents to extend the benefits of VRS to the appellant treating his date of birth as 21st September 1949.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2858 OF 2022

(Arising out of Special Leave to Appeal (Civil) No. 16886

of 2019)

SHANKAR LAL .…...APPELLANT(S)

VERSUS

HINDUSTAN COPPER LTD. & ORS. ……RESPONDENT(S)

J U D G M E N T

ANIRUDDHA BOSE, J.

The appellant is before us primarily questioning the

validity of an order of the employer (Hindustan Copper

Limited the first respondent in this appeal) treating his date

of birth as 21st September 1945. This date has relevance for

computation of his benefits accruing from a Voluntary

Retirement Scheme (“VRS”), for which he applied and was

granted. The appellant’s stand is that his date of birth is 21st

September 1949. The appellant had invoked the writ

jurisdiction of the High Court of Judicature for Rajasthan at

Jaipur (“the High Court”), but was unsuccessful before a

Single Judge and the Division Bench in sustaining his case.

If the latter date, i.e. 21st September, 1949 was accepted by

the employer to be his date of birth, his financial benefits

from the said scheme would have been higher, as he would

have had longer service tenure left. It appears that the

tenure of service left was the basis on which the VRS benefit

was to be computed. We would like to point out here that in

the pleadings and copies of various other documents forming

part of the paperbook, there are overlapping dates claimed by

the appellant to be his actual date of birth. These are 20th

September 1949 and 21st September 1949. This variation,

however, is insignificant so far as adjudication of this appeal

is concerned. In this judgment, we shall ignore this variation

and proceed on the basis that 21st September 1949 is the

date claimed by the appellant to be his birthdate.

2. The VRS was operational in the appellant’s case with

effect from 3rd October 2002. Admitted position is that 21st

September 1949 was recorded as his date of birth in his

service book. This was opened in 1975. He had joined the

organisation in the year 1971 and the Form “B” reflects his

date of birth as 21st September 1945. The appellant claims

that at the time of his voluntary retirement, he came to learn

for the first time that his date of birth was being changed to

21st September 1945. He invoked the writ jurisdiction of the

High Court in the year 2008 as his representations for

adhering to 21st September 1949 as his birthdate failed to

evoke positive response from the employer. That writ petition

(S.B. Civil Writ Petition No.5690/08) was disposed of by a

Single Judge with a direction to the appellant to make a fresh

representation in light of the recommendations made by a

committee of the employer themselves in his favour on the

subject controversy. The competent authority was directed, in

the same judgment delivered on 15th July 2008, to consider

and decide on the same in accordance with law.

3. The appellant’s representation was rejected by the

competent authorityemployer by an order passed on 13th

October 2008 (“the rejection order”). The appellant’s plea

against the rejection order (S.B. Civil Writ Petition No.

13195/2008) was dismissed by a learned Single Judge of the

High Court by an Order dated 24th November 2008 and his

appeal (D.B.Special Appeal Writ No.1501/2011) assailing the

order of dismissal before a Division Bench of the same High

Court also failed. The judgment of the Division Bench was

delivered on 8th December 2016. It is this judgment which is

under appeal before us. The appellant stakes his claim

primarily on his service book maintained by the employer,

where his date of birth is shown as 21st September 1949. Mr.

Kaushal Yadav, learned counsel for the appellant has also

relied on a Life Insurance Corporation (“L.I.C.”) Policy in

which the same date of birth has been shown. This policy,

however, was subscribed to by the appellant in the month of

May, 1980. The appellant’s counsel has brought to our notice

sample copies of his pay slips for the months of August 1994

and August 2001. Both these pay slips carry the message,

“Happy Birthday ***20.09.1949***”. The appellant has also

relied upon certain clauses of the Standing Orders of the

employer in support of his claim. We shall refer to the

relevant clauses thereof later in this judgment.

4. The appellant had joined the said organisation as a

miner on completion of his onemonth training in the

temporary job. Communication to that effect was issued on

th September 1971. We have already referred to different

documents emanating from or maintained by the employer

themselves where his date of birth was shown to be

21st September 1949. In the computation sheet of his

estimated “VR benefit” also the same date of birth was

reflected. By that time, the post the appellant was holding

was that of “drifter operator” (a copy of the estimate sheet

forms part of the paperbook, at page 38). The appellant was

relieved from his service on 3rd October 2002. The appellant’s

case is that he came to know that his date of birth was being

altered only after he was relieved from service. From the

materials available on record, we find reference to his date of

birth as 21st September 1945 for the first time in a form

issued by the employer on 22nd March 2003. The top portion

of this form (a copy of which appears at page 47 of the

paperbook) carries an endorsement made by the Assistant

Manager of the first respondent: “Date of birth: 21.09.1945

as per ‘B’ Form”. Immediately below this sentence there is

recordal that “D.O.B: 21.09.1949 as per H.O. Application.”

Rest of the said form contains other particulars of the

appellant, which also includes his date of birth, filled in as

20th September 1949. The appellant, however, had knowledge

of his date of birth being taken by the employer as 21st

September 1945 earlier, but according to him, he had noticed

this only after being relieved from service. In his service

certificate issued on 29th October 2002, 21st September 1945

was shown as his birthdate.

5. Stand of the respondents, represented by Ms. Nandini

Sen Mukherjee, learned counsel, is that at the entry point, he

had given his age to be 26 years, and that was the age

reflected in the Form “B”. That is a statutory form required

to be maintained under The Mines Act, 1952. It has also been

submitted by her that at that point of time, the medical

practitioner during a health checkup had also assessed his

age to be about 25 years, which would take his year of birth

closer to 1945. In the year 1975, his service book was

prepared. In such records, the appellant’s age was entered

as 26 years by mistake, repeating his age as it was at the

time he joined the organisation. That is how the inconsistent

recordal of the appellant’s birthdate is sought to be explained

by the employer. She has also emphasised that the appellant

had raised the complaint after receiving all the VRS benefits

computed on the basis of his age as reflected in the Form “B”.

6. It appears that there had been disputes over age in

respect of other employees also in the same organisation, and

a threemember committee was constituted by an Order

passed on 7th September 2004 by the General Manager,

Khetri Copper Complex of the first respondent. The

committee considered the case of the appellant also, and

their report went in his favour. Relevant extract from this

report has been annexed at page 54 of the paperbook

(Annexure P13). In Clauses 3, 4 and 5 of this report,

background has been given in relation to recordal of date of

birth of an employee. We quote below the said three clauses

from that report:

“3. As per the company’s certified standing orders,

the basis for determining the date of birth of an

employee will be:

a) Birth Certificate

b) School Leaving Certificate

c) Insurance Policy

d) Horoscope

e) Medical Report

In the standing orders followed in KCC, it is no

where written that the ‘B’ Form will be basis for the

determining the age.

4. In one of the court case (Durga Ram Vs. HCL

Case No.2427/1990) for age anomaly, the Hon’ble

High Court, Rajasthan has declined to accept the ‘B’

Form Register as the basis for age/date of birth

determination where the Hon’ble High Court had

quoted “when ‘B’ Form entries have not been made

by the petitioner in his own handwriting and the

entries have been made in ‘B’ Form in a language

which the petitioner could not have understood,

entries made in ‘B’ Form could not have been made

basis for effecting the retirement of the petitioner.

5. During construction period of KCC there was no

proper system of recording the particulars of an

employee like date of birth, age etc. Most of the

workmen were engaged as “daily rated monthly paid

basis” and there was no proper system of recording

the exact date of joining, date of birth etc. During

this period employees so engaged were never asked

for documents etc. in support of their age. Only after

the Gopal Das Narayan Award in 1971, all these

“daily rated monthly paid” workmen were regularized

and their date of initial joining in the company were

taken into account, service book was introduced and

particulars of these employees were maintained.”

(quoted verbatim from the paperbook)

7. In relation to the appellant, the recommendation of the

committee was to the following effect:

“6. Shri Shankar Lal Saini, Code No.36145, Exemployee.

Shri Shankar Lal joined the company on 21.9.1971.

His age was recorded as 26 years in the ‘B’ Form

Accordingly, his date of birth comes to 21.9.1945.

However, his date of birth was not recorded in his

service book. His service book was filled up in the

year 1975 where his date of birth was recorded as

21.9.1949 counting 26 years from the year 1975

(year of filling up the service book).

In the medical report dated 22.9.1971 also his age

was assessed as 25 years, which comes nearer to

1945 and not of 1949. The date of birth recorded in

the service book was not disputed for a long time.

However, in the year 2002, when the anomaly was

noticed the case was processed for rectification but

in the meantime, Shri Shankar Lal has submitted

V.R. and subsequently released from the

committee’s service on 3.10.2002. His V.R. payment

was released considering his date of birth as

21.9.1949 and not as 21.9.1949 (which was

recorded in his service book) as the Finance

Department did not agree to accept the date of birth

as 21.9.1949. After receiving the payment the exemployee made several request to release the

balance amount of V.R. benefit considering his date

of birth is 21.09.1949. The committee observed that

the exemployee joined this complex on 21.9.1971.

Since he was only literate, a ‘B’ register was filled up

at that time where his age was recorded as 26 years.

In the year 1975 a service book was filled up where

date of birth was recorded as 21.9.1949, counting

26 years from the year 1975. There was a medical

report dated 22.9.1971 where his age was assessed

as 25 years which makes the date of birth as

22.9.1946 but this medical report cannot be

considered as this was a routine medical report and

no medical board was set up specifically for age

determination. The committee felt that the date of

birth as 21.9.1949 was recorded in the service book

in the year 1975, which was never disputed

thereafter. Moreover, the same date of birth was

mentioned in his payslip ever year which was also

published by the committee. His LIC record also

indicates the same date of birth. Only at the time of

his release of payment in the year 2002 his date of

birth was considered from 21.9.1949 to 21.9.1949

which is against the DEP’s guidelines dated

9.2.2001. The committee, therefore, recommended to

maintain his date of birth as 21.9.1949.”

(quoted verbatim from the paperbook)

8. This recommendation was rejected by the employer,

which resulted in the appellant filing the writ petition before

the High Court. We have referred to this writ petition and

directions issued by the High Court on 15th July 2008 earlier

in this judgment.

9. The recommendation of the committee was not

accepted by the employer in the rejection order, relying on

Clause 5 of the Standing Order. The relevant extract from

this clause has been quoted in para (iv) of the rejection order

made by the competent authority. We reproduce below the

said clause, as it appears in the rejection order:

“iv) ….. However, in case of Mining workmen,

declaration of age by the individual workman in the

‘B’ Form Register as per the Mines Act/Rules may be

relied upon subject to confirmation by the

Company’s Medical Officer whenever considered

necessary.”

(quoted verbatim from the paperbook)

10. In the rejection order, reference was also made to the

guidelines of the Department of Public Enterprises,

Government of India. In Clauses (v), (vi) and (vii) of the said

order, it is recorded:

“v. The department of Public Enterprises,

Government of India in its guidelines dated 9th

February, 2001 states that the date of birth declared

by an employee and accepted by the appropriate

authority shall not be altered unless the same is

represented against with adequate

proof/justification within 5 years of joining the

service.

vi. Whereas, Shri Shankarlal never disputed the

date of birth recorded in ‘B’ Form, which is the

primary document for the purpose of recording date

of birth of employee working in Mines as per the

Mines Act and as well as the Standing Orders of the

Company, until his release from the services of the

Company on voluntary retirement on 03.10.2002 i.e.

after 31 years of service.

vii. The competent authority has taken note of the

recommendation of the Committee, which was

appointed in 2004 to examine anomalies in dates of

birth of certain number of employees. It is seen that

while examining this case, the committee had

somehow failed to consider and record the

importance of Clause No.5 of the Standing Order

applicable in case of mining workmen as referred

above. The competent authority has therefore not

accepted the recommendations of the said

committee.”

(quoted verbatim from the paperbook)

11. In the appellant’s writ petition seeking invalidation of

the rejection order, the High Court found the stand taken by

the authorities in rejecting the appellant’s plea for treating

his date of birth as 21st September 1949 to be justified. The

Single Judge of the High Court considered the fact that no

documentary evidence was available on record to support his

date of birth to be 21st September 1949. The appellant’s writ

petition was dismissed. Against the judgment of dismissal,

the appellant approached the Division Bench of the same

Court. The Division Bench also primarily relied upon the

entry in the Form “B” register and dismissed the appeal. The

Division Bench, inter alia, held:

“(5) There shall be a presumption of correctness with

regard to entries regarding date of birth made as far

back as 1971 in the statutory Form ‘B’ register

under the Mines Act. If the Appellant seeks to

challenge entries in a statutory register duly signed

by him also, the onus lies on him to prove how it

was wrongly made. Obviously the age mentioned

was not a figment of imagination by the Respondent

evident from the order of appointment which states

that it was based on his own statement

(6) The service book of the Appellant was opened in

the year 1975. There was no challenge to entry in

the same also. According to the DPE guidelines any

request for correction in the date of birth in the

service book was required to be made within 5 years.

If there was a prescription of time limit, the question

of raising any controversy much after that period

and acceptance of VRS 2002 simply does not arise.

(7) The Appellant accepted the benefits of the VRS

and then raised the dispute. The Respondents in all

fairness referred his case to a Medical Board which

again opined in confirmation of the entries made in

the Form ‘B’ register and the service book. The

contention of the Appellant with regard to his date of

birth being 21.09.1947 becomes a disputed question

of fact which cannot be inquired in the writ

jurisdiction quite apart from the fact of it having

been raised very belatedly.”

(quoted verbatim from the paperbook)

12. The stand of the employer, thus, is that in his service

book there was error in recording the age of the appellant as

26 years in 1975 and we ought not to give any credence to

such recordal. The respondents had only corrected an error

and such recordal in service book cannot be treated to be

acceptance of the appellant’s date of birth as 21st September

1949. We, however, find that the authorities proceeded in

this matter in a rather mechanical manner and embarked on

a unilateral exercise of correcting the age entry in the service

book on their perception that an error was being corrected.

This exercise was conducted without giving any opportunity

of hearing to the appellant and at the fag end of his service

tenure. Otherwise, various documents including the L.I.C.

policy consistently reflect 21st September 1949 to be the

appellant’s birthdate.

13. Clause 5 of the Standing Order on which reliance has

been placed by the employer does not treat the entry in the

Form ‘B’ recording date of birth of a miner to be the

conclusive proof of his or her age. Any doubt on a workman’s

age at the time of joining service also could be verified by a

medical board. We accept that an entry in the Form “B”

possesses high probative value, but they are not conclusive

proof of what is contained therein. The competent authority

proceeded on the basis that since the appellant did not

question the entry in Form “B”, he ought not to be permitted

to question the same at the time of his voluntary retirement.

14. The committee report prepared by three deputy general

managers of the respondent no.1 has raised doubt of the

correctness of the medical report as the same was not a

report of a medical board set up specifically for age

determination. It appears to have been a general observation

in course of health checkup. There does not appear to have

had been any other medical board constituted for that

purpose. The Division Bench, in the judgment under appeal,

has held that the respondents had referred the appellant’s

case to a medical board which had again confirmed the

entries made in the Form “B” register. We do not find from

the counter affidavit that any further medical board was

constituted. Moreover, the finding of the Division Bench that

opinion of the medical board confirmed the entries made in

the Form “B” register and service book is erroneous as in the

service book prepared in the year 1975, the year of birth of

the appellant has been treated to be 1949. Moreover, the

rejection order does not deal with the committee’s

observation that the medical opinion on the appellant’s age

was a routine medical report and not the opinion of a medical

board constituted to determine the age of an employee.

Subsequent payslips, the sample copies of which have

already been referred to in a preceding part of this judgment

also repeated 1949 to be the appellant’s year of birth. The

L.I.C. policy subscribed to by the appellant also carries the

same date of birth.

15. One of the factors that weighed with the Division

Bench was that there was no challenge to entry in the service

book, which should have been done within five years as per

the DPE guidelines. We are unable to accept this reasoning

as the service book contained 21st September 1949 as his

date of birth and this was prepared in 1975. Thus, no

occasion arose for approaching the employer for making any

correction in the service book till 2002.

16. This is not a case where a workman is seeking to

change his date of birth to his benefit at the end of his career.

This is a case where the employer is altering the records at

the end of the career of the workman to his detriment on

taking unilateral decision that the date of birth specified in

the appellant’s service book was erroneous, relying on a date

disclosed in a statutory form. Turning to Clause 5 of the

Standing Order, we have already expressed our view on the

evidentiary value of the entries in Form “B” as regards date of

birth of a workman. In the committee report, the DPE’s

guidelines dated 9th February, 2001 has been referred to,

which deals with alteration of the date of birth of an

employee. The report records:

“1. As per the DPE’s guidelines dated 9.2.2001, an

alteration of date of birth of an employee may be

considered with the sanction of the Board of

Directors, if

(a) request in this regard is made within 5 years of

his entry into the service of the Public Sector

Undertaking

(b) It is clear established that a genuine bonafide

mistake had occurred.

ineligible to appear in any school/University in

which he had appeared or for entry in Public Sector

Service on the date on which he first appeared at

such examination or on the date on which he

entered the Public Sector Services.”

(quoted verbatim from the paperbook)

17. Though in the Form “B”, the appellant’s age in 1971

was given as 26 years (the date of birth shown as 21st

September 1945), in the subsequent documents the date

appearing in service book had been reflected and it was the

date reflected in the service book which formed the basis of

the payslips as also the estimate statement of the appellant’s

voluntary retirement benefits. In such circumstances, the

appellant’s failure to seek correction in the Form “B” register

could be condoned.

18. The employer has taken a stand that the date of birth

recorded of the appellant in the service book was an act by

mistake. This is a weak explanation in our opinion. Several

subsequent steps were taken by the employer in relation to

the appellant’s employment on the basis of the entry in his

service book. The employer are the custodian of these

records. They acted all along on the basis of the service

entries till the appellant took VRS. It has been pleaded by the

appellant that at the time of his appointment, the office of the

respondent company entered in all their records his date of

birth as 21st September 1949. In the light of these facts, we

are not inclined to accept the version of the employer that

service book recordal was a mistake. The employer, a public

sector unit in this case, was expected to act with a certain

element of responsibility in maintaining the service records of

their workmen and ensure that there is uniformity in

particulars concerning individual employees. There is no

explanation as to how this mistake occurred and how pay

slips continued to be issued carrying the mistaken date of

birth for such a long time. The High Court in our view ought

not to have had accepted “mistake” as the cause for different

entries in different documents.

19. The other point on which argument has been advanced

on behalf of the employer is on the aspect of delay on the

appellant’s part in questioning the mistake in the Form “B”. It

has been urged by the respondents’ counsel that they had

extended the sum as per the VRS package computed on the

basis of 21st September 1945 as his date of birth and

complaint on that count was raised by the appellant after

receiving such benefits. It is their case that the anomaly was

discovered sometime in JulyAugust 2002 and the appellant

was asked to appear before a higher authority, which he did

on 16th October 2002. The note sheet of the appellant’s

meeting with the Assistant General Manager on 16th October

2002 has been annexed to the respondent’s counteraffidavit

marked as “R1”. The note sheet records that the appellant

had refused to put his signature thereon. Such refusal is not

of much significance so far as adjudication of the subjectdispute is concerned. Fact remains that this notesheet

appears to be the first document by which the employer had

alerted the appellant of their decision to rely on Form “B”

entry for computing his age.

20. The said document came into existence after the

appellant was released from his service on 3rd October 2002.

No document of earlier origin in this regard has been brought

to our notice in course of hearing of this appeal. The

appellant complained against such decision on 26th October

2002. Thus, the process of fixing of the appellant’s date of

birth had continued beyond the date on which he was

released from his service.

21. We do not think the appellant’s complaint over the

dispute was belated so as to nonsuit him on this count

alone. VRS benefit is an entitlement and assumes the

character of property to the employee concerned once his

application for VRS is accepted. It is the right of a person

under Article 300A of the Constitution of India to have the

VRS benefit to be given on accurate assessment thereof, the

employer here being a public sector unit. If at the time of

quantifying the VRS benefit after accepting an employee’s

application for voluntary retirement, the employer take any

step that would reduce such benefit in monetary terms, such

step shall have to be taken under the authority of law. We

find the action of the employer lacking in authority of law in

this case on two counts. First, it fails for not adhering to the

principles of natural justice. The decision not to follow the

service book recordal was taken without giving an

opportunity of hearing to the appellant. The opportunity of

hearing of the appellant also accrued because the employer

themselves had proceeded on the basis that the later date

i.e., 21st September 1949 was the birthdate of the appellant

and this was a long established position. Moreover, since in

the own records of the employer two dates were shown, under

normal circumstances it would have been incumbent on their

part to undertake an exercise on application of mind to

determine in which of these two records the mistake had

crept in. That process would also have had to involve

participation of the appellant, which would have been

compatible with the principles of natural justice. There are

several authorities in which this Court has deprecated the

practice on the part of the employees at the fag end of their

career to dispute the records pertaining to their dates of birth

that would have the effect of extension of the length of their

service. We are not referring to those authorities in this

judgment as the ratio laid down on that count by this Court

is not relevant for adjudication of this appeal. The very

reasoning on which an employee is not permitted to raise

agecorrection plea at the fag end of his service to extend his

tenure should also apply to the employer as well. It is the

employer here who had proceeded on the basis of age of the

appellant reflected in his service book during the latter’s

service tenure and they ought not to be permitted to fall back

on the Form “B” which would curtail the VRS benefit of the

appellant.

22. The principle of estoppel cannot be invoked in this case

against the appellant to debar him from claiming the benefit

properly computed as per his age reflected in the official

documents. Occasion did not arise for the appellant to advert

to the age correcting process so far as entry in the Form “B”

is concerned as the employer themselves had treated his date

of birth to be 21st September 1949 in the service book.

23. In these circumstances, we are of the opinion that the

Division Bench as also the Single Judge of the High Court did

not appreciate the materials available in their proper

perspective. We do not think that the view taken by the

Division Bench was a possible view. Sustaining such view

would result in depriving the appellant of his legitimate

benefits under the applicable Voluntary Retirement Scheme.

The materials relied upon by the appellant were ignored

altogether. We thus set aside the judgment of the Division

Bench. As a consequence, the judgment of the Single Judge

also would stand set aside. The rejection order dated 13th

October 2008 of the competent authority shall stand

quashed. The respondent no.1 proceeded in the case of the

appellant in an erroneous manner in treating the appellant’s

date of birth to be 21st September 1945. We accordingly direct

the respondents to extend the benefits of VRS to the

appellant treating his date of birth as 21st September 1949.

Such benefits shall be extended to him within a period of four

months, upon deducting therefrom the sum already paid to

him. The differential amount shall carry simple interest at

the rate of seven percent (7%) per annum to be computed

from 3rd October 2002, being the date on which he was

released from service, till the date of actual payment to him

in terms of this judgment.

24. The appeal is allowed accordingly.

25. Pending application(s), if any, shall stand disposed of.

26. There shall be no order as to costs.

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

(Dr. Dhananjaya Y. Chandrachud)

.…………………..........................J.

(Aniruddha Bose)

NEW DELHI;

20th April, 2022.

Dismissal of petition for leave to appeal -not amounts to merger = A petition for leave to appeal to this Court may be dismissed by a nonspeaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a nonspeaking order, i.e., it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of 6 (2000) 6 SCC 359 29 merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared.If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.30363064 OF 2022

[Arising out of Special Leave Petition (Civil) No.22987

23015 of 2019]

STATE OF ODISHA & ORS. ETC.ETC. ...APPELLANT(S)

VERSUS

SULEKH CHANDRA PRADHAN ETC.

ETC. ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. The appellants – State of Odisha and others have

approached this Court, being aggrieved by the judgment and

order dated 20th December, 2018, delivered by the Division

Bench of the High Court of Orissa at Cuttack in a batch of writ

petitions being Writ Petition (Civil) No. 6557 of 2018 along with

connected matters, thereby dismissing the said writ petitions

filed by the appellants – State of Odisha and others, challenging

the judgments and orders delivered by the Odisha

Administrative Tribunal (hereinafter referred to as “the

Tribunal”), Bhubaneswar Bench, Bhubaneswar/Cuttack

Bench, Cuttack dated 18th May, 2017 in O.A. No. 2266 of 2015

along with connected matters and 30th January, 2018 in O.A.

No.3420 (C) of 2015 along with connected matters.

3. Vide order dated 18th May, 2017, delivered in O.A.

No.2266 of 2015 along with connected matters, the Tribunal,

Bhubaneswar Bench had allowed the Original Applications filed

by the applicants therein (respondents herein), thereby setting

aside the termination of the applicants (respondents herein)

and directing/allowing them to continue as Government

servant as third teacher/Assistant Teacher in Middle English

Schools (hereinafter referred to as “M.E. Schools”) with effect

from 1st April, 2011, as regular teacher. Vide order dated 30th

January, 2018, the Tribunal, Cuttack Bench followed its earlier

order dated 18th May, 2017 and granted the same relief to 137

Hindi Teachers.

4. The parties are referred herein as they are referred to in

the Original Applications.

5. The facts giving rise to the present appeals are as under:

6. All the applicants joined the Aided M.E. School as Hindi

Teachers, in or around 198889. The applicantSulekh

Chandra Pradhan (respondent No.1 herein) in the lead case

before the Tribunal, Bhubaneswar Bench, i.e., O.A. No.2266 of

2015, was appointed on 21st June, 1988 and joined on 23rd

June, 1988, as Hindi Teacher at Nrusingha Jena M.E. School,

Naginipur in District Kendrapada. The appointment of the said

applicant was made by the Managing Committee of the said

School.

7. On 12th May, 1992, the Government of Orissa, Education

Department issued a resolution, thereby taking over all M.E.

Schools situated in the State of Odisha with effect from 1st

April, 1991. Though the Government took over all the teachers

including nonteaching staff of the M.E. School as Government

servants, Hindi Teachers were not taken over as Government

servants and therefore, the services of the applicants were

automatically terminated. Aggrieved thereby, on 2nd July, 1993,

Sulekh Chandra Pradhan (respondent No.1 herein), approached

the High Court of Orissa at Cuttack by way of Writ Petition

being OJC No. 3042 of 1993, thereby raising a grievance that

the benefits extended to Hindi Teachers in terms of the letter of

the Deputy Director, Sanskrit, Hindi and Special Education

(hereinafter referred to as “the Deputy Director”) dated 1st May,

1992 were not being extended to him. It was asserted that

though he possessed the requisite qualification, he was not

being absorbed against the third teacher post in the M.E.

School where he was earlier working. The Division Bench of

the High Court, vide judgment and order dated 2nd July, 1993,

disposed of the said writ petition by directing the Director of

Elementary Education, Orissa (hereinafter referred to as “the

Director”), to look into the grievances of the petitioner therein

(i.e. Sulekh Chandra Pradhan) within four months from the

date of receipt of the order.

8. On 7th January, 1994, the Government of Orissa issued a

clarification that the letter dated 1st May, 1992 of the Deputy

Director addressed to all Inspectors of Schools/all District

Inspector of Schools, was applicable only to the teachers, who

were appointed against sanctioned posts and were drawing

their salaries from the Government fund under Plan and nonplan scheme. By the said communication dated 1st May, 1992,

the Deputy Director had clarified that Hindi being a nonexaminable subject in M.E. Schools, there was no need to allow

the existing Hindi Teachers in M.E. Schools to continue further.

9. It appears that in pursuance to the orders of the High

Court, the Government of Orissa addressed a letter dated 29th

September, 1995 to the Director, thereby informing that the

Government had decided to adjust such Hindi Teachers

appointed by the Managing Committee within the yardstick in

UP (ME) Schools as Assistant Teachers in the taken over M.E.

Schools either in vacant posts of Assistant Teacher or in the

post of Hindi Teacher to be created in such schools or in other

schools in relaxation of the qualifications, prescribed for the

third teachers. Vide the said communication dated 29th

September, 1995, the Director was asked to ascertain the

names of the Hindi Teachers along with their qualification from

the concerned District Inspector of Schools. In response to the

same, the Director immediately informed the Government that

since the appointments were made beyond the yardstick and

against the provisions of Odisha Education (Recruitment and

Conditions of Service of Teachers and Members of the Staff of

Aided Educational Institutions) Rules, 1974 (hereinafter

referred to as “the said Rules”), the reference to District

Inspector of Schools to furnish the names and qualifications of

such Hindi Teachers would lead to every possibility for

manipulation of the office records. It was also pointed out that

such an exercise may enable to sponsor names of Hindi

Teachers for approval by making backdated appointments. It

was therefore recommended that cases of only such Teachers

who had filed the writ application between 12th May, 1992 and

12th May, 1993, i.e., within a year after taking over of the

schools should be considered as one time measure.

10. Vide communication dated 21st May, 1996, the

Government of Orissa informed the Director that the

Government has decided to adjust 137 Hindi Teachers in M.E.

Schools. It appears that vide communication dated 17th June,

1996, the Government of Orissa also informed the Director that

while examining the original papers of Hindi Teachers, their

Acquaintance Roll should be verified by the District Inspector of

Schools. It further appears that vide communication dated 21st

August, 1996, the Government of Orissa informed the Director

that no action be taken in pursuance to its earlier

letters/communications dated 21st May, 1996 and 17th June,

1996, until further orders of the State Government.

11. Ignoring the letter/communication dated 21st August,

1996, the respective District Inspector of Schools issued

appointment order dated 27th August, 1996 in favour of the

applicant – respondent No. 1 herein. Noticing this, the

Directorate of Elementary Education, Orissa, Bhubaneswar

addressed a communication/letter dated 1st October, 1996 to

the District Inspector of Schools informing that all

appointments made by them should be kept in abeyance. It

appears that on the basis of the said communication dated 1st

October, 1996, the services of the applicants/Hindi Teachers

were discontinued with effect from 4th November, 1996. On 5th

September, 1998, the Government of Orissa addressed a

communication to the Director, stating therein that the

Government has withdrawn its G.O. No.31360 SME dated 29th

September, 1995.

12. It is the contention of the State Government that the Joint

Secretary to the Government of Orissa, Department of School

and Mass Education addressed a communication dated 7th

July, 2009 to the Director, stating therein that the Government

had decided to adjust the services of 137 Hindi Teachers in

M.E. Schools as Assistant Teachers against the vacant posts.

Vide another communication dated 2nd February, 2011, the

office of the Director informed the District Inspectors of Schools

that a committee constituted and headed by them should

scrutinize the original papers of Hindi Teachers and

acquaintance roll of the incumbents should be verified with

reference to the cash book of the School from the date of their

joining before the adjustment of such teachers. In pursuance

to the aforesaid communication dated 2nd February, 2011, the

applicants/respondents were appointed on 31st March, 2011 as

Assistant Teachers.

13. It appears that certain teachers had approached the

Tribunal by filing various applications, thereby challenging the

order dated 1st October, 1996 and 4th November, 1996, vide

which the appointment of teachers were kept in abeyance. One

of such applications being O.A. No.4029(2) of 1996 came to be

rejected by the Tribunal by order dated 12th April, 2012. It

appears that one another application being O.A. No.3800 (C) of

2012 was filed by one Nimai Charan Dash, seeking a direction

to quash the order dated 21st August, 2012 whereby the

representation of the applicant therein to adjust him as a

regular teacher came to be rejected. The said application came

to be rejected by the Tribunal, Cuttack Bench vide order dated

23rd September, 2013. While rejecting the said O.A. the

Tribunal, Cuttack Bench, directed a detailed enquiry to be

conducted through the Vigilance Department.

14. In the enquiry, it was found that the letter dated 7th July,

2009 of the Government of Orissa addressed to the Director to

adjust 137 Hindi Teachers as Assistant Teachers against

vacant posts was issued by suppressing its earlier letter dated

th September, 1998, whereby the letter dated 29th September,

1995 to adjust the Hindi Teachers was withdrawn. The

Government of Orissa, therefore, vide communication dated

26th February, 2014, directed the Director to remove 137 Hindi

Teachers, who were illegally adjusted by the concerned District

Inspector of Schools. Accordingly, the services of the

applicants/Teachers came to be terminated with effect from

15th March, 2014.

15. The applicants, being aggrieved by their termination

approached the High Court by way of Writ Petitions being Writ

Petition (Civil) No.6747 of 2014 and other writ petitions. The

High Court vide order dated 9th May, 2014, delivered in Writ

Petition (Civil) No.6747 of 2014, found that the termination was

done without following the principles of natural justice and as

such, set aside the same. However, liberty was granted to the

State to proceed against the petitioner therein (i.e., Ramesh

Kumar Mohanty) by complying with the Rules governing the

employment of the petitioner therein and the requirement of the

rule of natural justice. The High Court further directed that the

services/appointments of such of the teachers would be

continued till the decisions were taken by the authorities after

remand.

16. In pursuance thereof, the applicants/teachers were

reinstated on 15th December, 2014. In view of the liberty

granted by the High Court, show cause notices were issued to

the applicants on 22nd July, 2015. Some of the applicants filed

their replies and appeared for personal hearing. Many of them

chose not to do so. The services of the applicants came to be

terminated with effect from 22nd August, 2015. Being aggrieved,

a batch of Original Applications came to be filed before the

Tribunal. The same came to be allowed by the Tribunal,

Bhubaneswar Bench, vide order dated 18th May, 2017, thereby

quashing the show cause notices dated 22nd July, 2015 and

holding that the applicants were entitled to continue as regular

Government servants as third teacher/Assistant Teacher in

M.E. School with effect from 1st April, 2011.

17. Vide another order dated 30th January, 2018, the

Tribunal, Cuttack Bench, followed the abovementioned order

dated 18th May, 2017, passed by the Tribunal, Bhubaneswar

Bench and granted similar relief to 137 Hindi Teacher.

18. Being aggrieved by the judgments and orders dated 18th

May, 2017 and 30th January, 2018 of the Tribunal, the State of

Odisha filed writ petitions before the High Court. The same

were dismissed by the impugned judgment and order dated 20th

December, 2018. Being aggrieved thereby, the present appeals

by way of special leave are filed. Vide order dated 20th

September, 2019, this Court issued notice and granted stay to

the impugned judgment and order.

19. We have heard Shri Chander Uday Singh, learned Senior

Counsel appearing on behalf of the appellants, Shri Gaurav

Agrawal, learned counsel appearing on behalf of the

respondents/teachers and Shri R. Balasubramanian, learned

Senior Counsel appearing on behalf of the

Interveners/applicants.

20. Shri Chander Uday Singh, learned Senior Counsel

appearing on behalf of the appellants would submit that the

High Court has grossly erred in holding that the State had not

challenged the judgment and order dated 18th May, 2017,

passed by the Tribunal, Bhubaneswar Bench, in O.A. No.2266

of 2015 and other connected cases. He submitted that, as a

matter of fact, Writ Petition (Civil) No.6557 of 2018 was filed

challenging the judgment and order dated 18th May, 2017,

passed by the Tribunal in O.A. No.2266 of 2015 and other

connected cases. He submitted that the High Court has erred

in holding that the teachers had discharged service under the

State Government for more than two decades. He further

submitted that the Division Bench of High Court has erred in

holding that the State had meted out discriminatory treatment

amongst the teachers. He therefore submits that the

judgments and orders passed by the Tribunal as well as the

High Court are not sustainable in law and liable to be set aside.

21. Shri Singh further submitted that the appointments made

are contrary to Rules 5 and 6 of the said Rules and as such, the

appointments made, de hors the said Rules, cannot be

sustained. He further submitted that the Tribunal, while

delivering the judgments and orders dated 18th May, 2017 and

30th January, 2018, has failed to take into consideration the

earlier orders of the Tribunal dated 25th June, 2013 and 23rd

September, 2013, vide which the Tribunal had rejected similar

claims made by the Hindi Teachers. He further submits that,

as a matter of fact, Sri Antaryami Bal, whose O.A. (No. 2270 of

2015) has been allowed by the Tribunal vide judgment and

order dated 18th May, 2017, was the applicant in O.A. No.4029

(2) of 1996, which was rejected by the Tribunal, Cuttack Bench

by a wellreasoned judgment and order dated 12th April, 2012.

He therefore submits that the judgments and orders of the

Tribunal, which were impugned before the High Court, would

also not be sustainable on the ground of judicial propriety.

22. On facts, Shri Singh submitted that the

applicants/teachers have worked only between 27th August,

1996 and 4th November,1996; between 31st March, 2011 and

15th March, 2014; and lastly from 15th December, 2014 till 25th

August, 2015. The third period was on account of the orders

passed by the High Court. He therefore submits that, at the

most, the applicants/teachers have worked approximately for a

period of four years.

23. Shri Gaurav Agrawal, learned counsel, would submit that

though the M.E. Schools had a sanction of two posts, i.e., one

post of Headmaster and one post of Assistant Teacher; the

posts of Hindi Teacher were filled in by the Management on

nongrant basis. He submits that the said Rules would be

applicable only to the appointments made on grantinaid basis

and as such, to the post of Headmaster and to the one post of

Assistant Teacher. Since the applicants/teachers, who were

appointed on a third post, which was on nongrant basis, they

would not be governed by the said Rules.

24. Shri Agrawal further submits that in pursuance to the

order passed by the Division Bench of the High Court in O.J.C.

No. 3042 of 1993 dated 2nd July, 1993, the State had framed a

policy for absorption of these teachers as a onetime measure.

He submits that prior to their absorption, a detailed scrutiny

and enquiry was required to be done. He submits that if

applicants/teachers were absorbed in pursuance to the policy,

which was framed in pursuance to the directions of the High

Court, the termination would be bad in law. He therefore

submits that no interference would be warranted with the

judgments and orders passed by the Tribunal and the High

Court.

25. Shri R. Balasubramanian, learned Senior Counsel

appearing on behalf of the interveners/applicants would submit

that similar matters, i.e., O.A. No. 3420(C) of 2015 and other

connected matters have been allowed by the Tribunal vide order

dated 30th January, 2018. He submits that the order of the

Tribunal was confirmed/affirmed by the High Court vide order

dated 11th April, 2018 passed in Writ Petition (Civil) No.21661

of 2017. He submits that the Special Leave Petition (Civil) D.

No.40252 of 2018 challenging the same has been rejected by

this Court vide order dated 19th July, 2019. He therefore

submits that the issue has reached a finality and therefore, it

will not be permissible for the State to do away with the

services of the Assistant Teachers. He further submits that the

applicants/interveners in the present appeals, who have

succeeded before the Tribunal, the High Court, and this Court

have not been reinstated.

26. For appreciating the rival submissions, it will be necessary

to refer to Rules 5 and 6 of the said Rules, which read thus:

“5. Procedure of application to the Board and

appointment of Staff in aided institutions –

(1)The Secretary of the Managing

Committee or the Governing Body, as

the case may be, of an Aided

Educational Institution shall, on or

before the thirtyfirst day of August

every year apply to the Selection Board

with copy of each application to the

concerned Inspector of Schools in

respect of Schools [Director of Higher

Education] in respect of Colleges in

such manner as the Selection Board

may prescribe for selection of a

candidate for appointment in the

vacancy or vacancies in teaching post,

and the concerned Inspector of Schools

and [Director of Higher Education] shall

process the applications so received

and transmit the same to the Selection

Board by thirtieth day of September

every year with certificate of

genuineness of the vacancy or

vacancies along with a statement of the

vacancy position in the Educational

Institutions within his jurisdiction.

(2)The Selection Board shall, on receipt of

applications and certificates referred to

in Subrule () recommend a list of

candidates in order of merit strictly

according to the number of vacancies,

to the concerned Directors who shall

thereupon, allot candidates to the

concerned institutions strictly in order

of merit as per vacancy.

(3)Appointment shall be made by the

Managing Committee or the Governing

Body as the case may be, of the

candidates allotted under Subrule (2).

(4)[***]

(5)In the extent of nonacceptance of offer

of appointment by any candidate,

report to that effect shall be sent to the

[Director concerned] by the Secretary of

the Managing Committee or the

Governing Body, as the case may be,

and upon receipt of such intimation,

the name of the candidate shall be

struck off the list. The consequential

vacancies shall then be filled up by

candidates allotted by the Director

concerned from an additional list

obtained from the Selection Board from

the list of persons in the waiting list

with it.

(6)If instance of default in the

appointment of candidates allotted by

the Director, come to his notice, he

shall be competent to withhold the

individual teacher’s cost of the grantinaid to be paid to the institution

concerned and to take steps to

supersede the Managing Committee or

the Governing Body, as the case may

be, under Section 11 of the Act.

(7)Where a vacancy was not foreseen by

thirtyfirst day of August the Secretary

of the Managing Committee or the

Government Body, as the case may be,

shall apply to the Selection Board

through the concerned Inspector or the

Director, as the case may be, for

allotment of candidates whereupon, the

Selection Board shall recommend

candidates out of the waiting list

maintained by it, through the

concerned Director.

(8)It shall not be necessary to apply to the

Selection Board for appointments to

vacancies [for a period of six months or

till the date of receipt of the list referred

to in Subrule (2) from the Selection

Board whichever is earlier] and all such

appointments may be made by the

Managing Committee or the

Government Body, as the case may be,

with the prior approval of the Inspector

in respect of an Institution other than a

College and of the Director in respect of

a College.

[Provided that where it appears to the

Inspector or the Director, as the case

may be, that the appointment to a

vacancy or vacancies in accordance

with the provisions of this rule is being

circumvented by making appointments

in pursuance to this Subrule, the

Director suo motu or on the receipt of a

report from the Inspector as the case

may be, shall be competent to proceed

against the Managing Committee or the

Governing Body under Section 11 of the

Act.]

(9)Notwithstanding anything contained in

Subrule (8), it shall be competent for

the Managing Committee or the

Governing Bode, as the case may be to

extend in terms of appointment beyond

six months till the recommendation of

the Selection Board is received with the

prior approval of Government.

6. Procedure of selection of candidates –

(1) The Selection Board shall, at such

intervals as it deems proper call for

applications for various posts in respect

of which vacancies are likely to arise in

the course of the next one year in such

manner as may be determined in the

regulation of the Selection Board.

(2) The Selection Board shall conduct

examinations including a viva voce

examination of any candidate or all

candidates with a view to determine

their merit and suitability in the matter

appointed in its regulations.”

27. Perusal of the subrule (1) of Rule 5 of the said Rules

would show that the Secretary of the Managing Committee or

the Governing Body, as the case may be, of an Aided

Educational Institution, is required to apply to the Selection

Board on or before the thirtyfirst day of August every year with

copy of each application to the concerned Inspector of Schools

and Director of Higher Education. The Inspector of Schools

and the Director of Higher Education are required to process

the applications so received and transmit the same to the

Selection Board by thirtieth day of September every year with

certificate of genuineness of the vacancy/vacancies. Perusal of

subrule (2) of Rule 5 of the said Rules would show that the

Selection Board shall recommend a list of candidates in order of

merit strictly according to the number of vacancies to the

concerned Directors, who shall thereupon allot candidates to

the concerned institutions strictly in order of merit as per

vacancy.

28. Perusal of subrule (6) of Rule 5 of the said Rules would

reveal that if the Management defaults in making appointment

of candidates allotted by the Director, he shall be competent to

withhold the individual teacher’s cost of the grantinaid to be

paid to the institution concerned. He is also entitled to take

steps to supersede the Managing Committee or the Governing

Body, as the case may be. Under subrule (8) of Rule 5 of the

said Rules, the relaxation is granted for filling up the vacancies

for a period of six months or till the date of receipt of the list as

referred to in subrule (2) of Rule 5 of the said Rules. However,

the same has to be with the prior approval of the Inspector in

respect of an institution other than a College and of the

Director in respect of a College.

29. Rule 6 of the said Rules prescribes the procedure for

selection of candidates.

30. It could thus be clearly seen that a detailed selection

procedure is prescribed for making appointment of vacancies

arising in Aided Educational Institution.

31. Perusal of the approval order dated 12th September, 1980

of the Government of Orissa, Education and Youth Service

Department, would reveal that for each M.E. School, only two

posts, i.e., one post of a Trained Graduate Headmaster and one

post of a Trained Matric Teacher, have been sanctioned. The

order clearly provides that no other post of teaching and nonteaching staff would be permitted.

32. It is not in dispute that the appointment of all the

applicants/respondents/teachers have been made directly by

the respective Management without following the procedure as

prescribed under the Rules/Statute. It is a trite law that the

appointments made in contravention of the statutory provisions

are void ab initio. Reference in this respect could be made to

the judgments of this Court in the cases of Ayurvidya

Prasarak Mandal and another vs. Geeta Bhaskar Pendse

(Mrs) and others1

, J & K Public Service Commission and

others vs. Dr. Narinder Mohan and others2

, Official

Liquidator vs. Dayanand and others3

, and Union of India

and another vs. Raghuwar Pal Singh4

33. We are unable to accept the contention raised by Shri

Gaurav Agrawal and Shri R. Balasubramanian that since the

applicants/teachers were appointed on posts which were not on

grantinaid basis, the said Rules are not applicable. The said

Rules would clearly show that they are applicable to Aided

Educational Institution. Undisputedly, the institutions in

which the applicants/teachers were appointed, were recognized

as Aided M.E. Schools vide G.O. dated 12th September, 1980. It

1 (1991) 3 SCC 246

2 (1994) 2 SCC 630

3 (2008) 10 SCC 1

4 (2018) 15 SCC 463

is also not in dispute that the appointments so made were

subsequent to the schools being recognized as Aided Schools.

As such, the contention in that regard deserves to be rejected.

34. We further find that the Tribunal, while delivering the

judgment and order dated 18th May, 2017 and 30th January,

2018, has failed to take into consideration the earlier orders

dated 25th June, 2013 and 23rd September, 2013 delivered by

the same Tribunal. In the said orders of 2013, the Tribunal

had elaborately considered the provisions of the said Rules and

found no merit in the contentions raised on behalf of the

applicants therein. The orders passed by the Tribunal ignoring

its earlier orders, which were passed elaborately considering

the scheme of the said Rules, are totally contrary to the wellestablished norms of judicial propriety. The situation becomes

graver, inasmuch as, the Tribunal has allowed O.A. No.2270 OF

2015 by its order dated 18th May, 2017 filed by Sri Antaryami

Bal, whose earlier application being O.A. No. 4029(2) of 1996

with regard to the same relief was rejected by the Tribunal vide

its earlier order dated 12th April, 2012. The orders passed by

the Tribunal are, therefore, totally unsustainable in view of the

law laid down by this Court in the case of Official Liquidator

vs. Dayanand and others (supra). Not only this, the Tribunal

as well as the High Court has failed to take into consideration

the order passed by this Court on 2nd December, 1996 in Civil

Appeal No. 15712 of 19965

35. The impugned order passed by the High Court depicts

total nonapplication of mind. Whereas the cause title would

itself show that a Writ Petition (Civil) No.6557 of 2018 is

disposed of by the impugned judgment, the High Court

observed that the order dated 18th May, 2017, passed by the

Tribunal in O.A. No.2266 of 2015, has not been challenged by

the State. Whereas the teachers have hardly worked for four

years and a substantial part thereof on account of interim

orders passed by the High Court, the High Court goes on to

5 (1997) 2 SCC 635

observe that the teachers have worked for a period of more than

20 years. No reasons, leave aside sound reasons, are reflected

in the impugned order while dismissing the writ petitions filed

by the State.

36. That leaves us with the submission of Shri R.

Balasubramanian, learned Senior Counsel that since the view

taken by the Tribunal has been affirmed by the High Court and

the Special Leave Petition challenging the same has been

dismissed, the view of the Tribunal has become final. In this

respect, reliance could be placed on the judgment of this Court

in the case of Kunhayammed and others vs. State of Kerala

and another6

, wherein this Court has held as under:

“27. A petition for leave to appeal to this

Court may be dismissed by a nonspeaking

order or by a speaking order. Whatever be

the phraseology employed in the order of

dismissal, if it is a nonspeaking order,

i.e., it does not assign reasons for

dismissing the special leave petition, it

would neither attract the doctrine of

6 (2000) 6 SCC 359

merger so as to stand substituted in

place of the order put in issue before it

nor would it be a declaration of law by

the Supreme Court under Article 141 of

the Constitution for there is no law

which has been declared. If the order of

dismissal be supported by reasons then also

the doctrine of merger would not be attracted

because the jurisdiction exercised was not

an appellate jurisdiction but merely a

discretionary jurisdiction refusing to grant

leave to appeal. We have already dealt with

this aspect earlier. Still the reasons stated by

the Court would attract applicability of

Article 141 of the Constitution if there is a

law declared by the Supreme Court which

obviously would be binding on all the courts

and tribunals in India and certainly the

parties thereto. The statement contained in

the order other than on points of law would

be binding on the parties and the court or

tribunal, whose order was under challenge

on the principle of judicial discipline, this

Court being the Apex Court of the country.

No court or tribunal or parties would have

the liberty of taking or canvassing any view

contrary to the one expressed by this Court.

The order of Supreme Court would mean

that it has declared the law and in that light

the case was considered not fit for grant of

leave. The declaration of law will be governed

by Article 141 but still, the case not being

one where leave was granted, the doctrine of

merger does not apply. The Court sometimes

leaves the question of law open. Or it

sometimes briefly lays down the principle,

may be, contrary to the one laid down by the

High Court and yet would dismiss the

special leave petition. The reasons given are

intended for purposes of Article 141. This is

so done because in the event of merely

dismissing the special leave petition, it is

likely that an argument could be advanced

in the High Court that the Supreme Court

has to be understood as not to have differed

in law with the High Court.”

[emphasis supplied]

37. It is thus clear that a mere dismissal of the Special Leave

Petition would not mean that the view of the High Court has

been approved by this Court. As such, the contention in that

regard is rejected.

38. We are, therefore, of the considered view that the Tribunal

has erred in allowing the Original Applications of the

applicants/teachers. Similarly, the High Court has also erred

in dismissing the petitions filed by the appellants.

39. In the result, the appeals are allowed. The impugned

judgment and order of the Division Bench of the High Court

dated 20th December, 2018 passed in a batch of writ petitions

and the judgments and orders dated 18th May, 2017 and 30th

January, 2018 of the Tribunal passed in a batch of Original

Applications are quashed and set aside. The Original

Applications filed by the respondents/applicants before the

Tribunal are dismissed.

40. All pending applications, including applications for

intervention, shall stand disposed of. There shall be no order

as to costs.

…..….......................J.

[L. NAGESWARA RAO]

…….........................J.

[B.R. GAVAI]

NEW DELHI;

APRIL 20, 2022

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, April 22, 2022

once the adoption deed is void , the adopted son is not entitled for appointment on compensatory ground of the deceased employee

Thursday, April 21, 2022