When the advocate on record who filed the appeal was elevated to the Bench, it was for the appellant to make his own arrangement for appointing another advocate in the place of earlier advocate on record. Appellant did not take any steps in this regard. Even notice sent to the appellant was not received by him for want of correct address. As such there was no option except to proceed for disposal of the appeal filed by the appellant, by appointing amicus curiae. On the mere allegation of the appellant that the amicus curiae appointed was earlier junior counsel of C.B.I. advocate, is no ground to interfere with the impugned judgment. Having perused the findings recorded by the trial court/Special Court and of the High Court, we are of the view that the findings recorded in support of the case of the prosecution were in conformity with the oral and documentary evidence on record. We are satisfied from the findings recorded that the appellant knowing fully well that the invoices/bills were fake and fabricated, were presented on behalf of the firm to the bank and thus cheated the bank. The prosecution has proved the guilt of the appellant herein beyond reasonable doubt to record conviction of the appellant.

Crl.A.No.2298 of 2010
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2298 OF 2010
Mayank N Shah …..Appellant
Versus
State of Gujarat & Anr. …..Respondents
J U D G M E N T
R. Subhash Reddy, J.
1. This criminal appeal is filed by the accused no.4, aggrieved by the
judgment dated 16.10.2008, passed in Criminal Appeal No.324 of 1987,
by the High Court of Gujarat at Ahmedabad, confirming the judgment
and order of conviction dated 02.04.1987 passed by the learned Special
Judge, Ahmedabad in Special Case No.13 of 1979.
2. On 21.07.1976, a complaint was lodged by Divisional Manager,
Central Bank of India, Ahmedabad with the Superintendent of Police,
Central Bureau of Investigation, Ahmedabad against the
appellant/accused no.4 and four others which came to be registered as
1
Crl.A.No.2298 of 2010
C.R. No.43 of 1976. It was alleged in the complaint that M/s. New
Russian Automobiles is a registered partnership firm engaged in the
business of manufacturing crank-shafts for jeeps, ambassador cars,
tractors, diesel engines etc., from their manufacturing unit at plot bearing
no.155, C1-B/3 situated in Industrial Area, Naroda Taluka of
Ahmedabad District. It was alleged that during the relevant time
accused no.1 was serving as Branch Manager of Central Bank of India,
Ahmedabad, whereas accused nos.2 and 3 were partners of M/s. New
Russian Automobiles along with two others. As per the complaint,
appellant herein/accused no.4 was at the relevant time serving as Chief
Manager (Operations) with the firm and accused no.5 was serving as
office Superintendent. It was further stated in the complaint that original
accused no.2 applied to the Central Bank of India for availing certain
loan facilities for the firm. Accordingly, various facilities such as Term
Loan facility, Cash Credit Open Loan facility, Usance Bills facility, Clean
Endorsed Out-stationed Third Parties Cheques Discounting facility etc.
were extended from time to time at the instance of accused no.1.
According to the complainant, accused no.2 apart from being a partner
in the partnership firm, had also floated three other fictitious proprietary
concerns at Bombay, i.e., (i) M/s. Technical Export Import Association;
(ii) M/s. Alloy Steel Corporation; and (iii) M/s. Auto Parts Centre. It was
further the case of the complainant that under the Usance Bills facility,
the partnership firm used to offer its bills drawn on different outstation
2
Crl.A.No.2298 of 2010
parties and along with the said bills they have produced railway receipt,
motor receipt, invoices for the value of the goods sold to the parties and
also the hundis drawn upon the purchases and all the said documents
were signed by accused nos.2 to 5. On such presentation, bank used to
grant credit facility by forwarding the bills with necessary documents to
the out-stationed bankers named in the bill and the out-stationed parties
used to accept the hundis for the value of goods sent along with the bill
and the out-stationed bank used to deliver to the said party railway
receipt or motor receipt along with the invoices. As stated in the
complaint, the out-stationed parties then used to pay up the amount of
hundis to their partner within the time fixed by the hundis and such
bankers used to send necessary amount to the Central Bank,
Gheekanta Branch, Ahmedabad. It was the allegation in the complaint
that all the accused persons hatched a conspiracy to cheat the bank and
they managed to get fake motor receipts alleged to have been issued by
one Bombay General Freight Carriers Pvt. Ltd., Bombay. As alleged in
the complaint, the appellant/accused no.4 and accused no.5 presented
to the bank 25 bills for the total amount of Rs.18,57,064.40 during the
period from October 1975 to March 1976 and in the said manner, the
firm has availed the credit facility from the bank against such bills, by
presenting fake transport receipts. It is alleged that on certain occasions
forged receipts were produced with Out-stationed Bills Discounted
(O.B.D.) and Bills Purchased (B.P.) and in all 25 bills were presented
3
Crl.A.No.2298 of 2010
with forged motor transport receipts and out of the said bills, 11 bills
totalling to Rs.6,02,160/- were drawn upon a fictitious firm, namely, M/s.
Auto Parts Centre, of which accused no.2 was the sole proprietor. It is
alleged, the accused nos.2 to 5 by making false or misleading
representation with fraudulent and dishonest inducement, cheated the
bank to the tune of Rs.18,57,064.40. It was also alleged that accused
nos.2 to 5 made false declaration about the value of the goods by
drawing bills in favour of fictitious firms. Further, M/s. Alloy Steel
Corporation, a fictitious firm floated by accused no.2, raised 11
fabricated invoices in the name of the firm amounting to Rs.44,19,000/-
and fraudulently and dishonestly induced the said bank to advance the
amount of Rs.30,93,300/-. In the complaint it is alleged that accused
no.1 being a public servant, managed to get credited, at the instance of
accused no.2, an amount of Rs.9500/- in the account of his sons on
28.11.1975 and Rs.5400/- on 11.02.1976. In addition to the same,
accused no.1 accepted a wrist watch, Crown T.V. set and enjoyed a trip
to Bombay at the expense of accused nos.2 and 3, as such, committed
the offence punishable under Section 161 and 165 of the Indian Penal
Code (IPC).
3. After completion of the investigation on the complaint, all the
accused were charged for the offences punishable under Sections 161,
166, 420, 468 and 471, IPC read with Sections 5(1)(d) and 5(2) of
4
Crl.A.No.2298 of 2010
Prevention of Corruption Act, 1947. All the accused pleaded not guilty
to the charges and claimed trial.
4. The prosecution has examined in all 44 witnesses apart from the
documentary evidence. On appreciation and evaluation of the evidence
on record adduced by the prosecution both oral as well as documentary,
the learned Special Judge held the appellant is guilty for the offences
charged and imposed the sentence for the various offences, which
reads as under :
“R.I. for a period of two years for the offence punishable
under S.120B read with S.161, 166, 420, 471 of I.P. Code
and also read with S.5(1)(d) further read with S.5(2) of the
Prevention of Corruption Act, 1947.
R.I. for a period of two years and to pay fine of Rs.5000/-,
in default to suffer further R.I. for period of six months for
the offence punishable under sec.420,420-120B of I.P.
Code.
R.I. for a period of one year and to pay a fine of Rs.2000,
in default to suffer further R.I. for period of three months for
the offence punishable under S.471 read with S.468 of I.P.
Code in respect of the user of seven forged motor
transport receipts.
R.I. for a period of one year and to pay a fine of Rs.2000.
in default to suffer further R.I. for period of three months for
the offence punishable under S.471 read with S.468 and
further read with S.120B of I.P. Code in respect of the user
of the 11 Photostat copies of exhs.942 to 952.”
5. Aggrieved by the conviction recorded and sentence imposed, the
appellant herein preferred criminal appeal before the High Court. High
Court, by re-appreciating the evidence on record, dismissed the appeal
5
Crl.A.No.2298 of 2010
by impugned judgment, confirming the judgment and order of sentence
imposed on the appellant, by the learned Special Judge, Ahmedabad.
6. We have heard Sri Basava Prabhu Patil, learned senior counsel
appearing for the appellant and Ms. Sonia Mathur, learned senior
counsel appearing for the C.B.I.
7. It is contended by learned senior counsel for the appellant that the
appeal was decided by the High Court without giving adequate
opportunity, to the appellant to present his case on merits. It is
submitted that during the pendency of the appeal, before the High Court,
the advocate who has presented the appeal on behalf of the appellant
was elevated as the Judge of the High Court and thereafter notice
issued by the High Court was not received by the appellant, as he has
shifted to Pune and the High Court has disposed of the appeal by
appointing amicus curiae, who was no other than junior advocate of the
counsel for the C.B.I. In view of the same, it is submitted that it is a fit
case to remand the matter to the High Court. Further it is submitted that
conviction of the appellant is solely based on circumstantial evidence
and the appellant was the salaried employee of the firm working as
Chief Manager (Operations). He was not benefitted in any manner and
he was submitting the bills and invoices as per the instructions of the
accused no.2. That the companies which were floated by the accused
no.2 were his proprietary concerns. It is submitted that he was
preparing the invoices and bills during his routine office work on the
6
Crl.A.No.2298 of 2010
basis of information received from the factory and submitted to the bank.
It is submitted that in absence of any direct evidence connecting the
appellant to the alleged illegalities the High Court as well as the trial
court fell in error in recording conviction of the appellant for the offence
alleged.
8. On the other hand, learned senior counsel appearing for the
respondents has submitted that the appellant/accused no.4 was working
as Chief Manager (Operations) with M/s. New Russian Automobiles and
he had drawn almost all O.B.D. and B.P. bills on behalf of the firm. It is
submitted that from the documentary evidence placed on record, it is
amply clear that appellant was very well knowing that the bank was
being deceived by showing highly inflated amounts in the O.B.D. bills. It
is submitted that appellant has signed all the bills which were submitted
along with forged receipts to the bank. Further it is stated that he has
attested all the 11 photocopies of exhibits 942 to 952 as true copies of
the forged invoices issued by M/s. Alloy Steel Corporation. It is
submitted, thus the appellant herein was party to the offence of cheating
and forgery upon the bank.
9. Having heard learned counsel on both sides, we have perused the
judgments of the trial court, as well as High Court.
10. On appreciation of oral and documentary evidence on record, trial
court/Special Court has convicted the accused nos.1 to 4, and the High
Court by the impugned judgment confirmed the conviction and sentence
7
Crl.A.No.2298 of 2010
imposed on the appellant. When the advocate on record who filed the
appeal was elevated to the Bench, it was for the appellant to make his
own arrangement for appointing another advocate in the place of earlier
advocate on record. Appellant did not take any steps in this regard.
Even notice sent to the appellant was not received by him for want of
correct address. As such there was no option except to proceed for
disposal of the appeal filed by the appellant, by appointing amicus
curiae. On the mere allegation of the appellant that the amicus curiae
appointed was earlier junior counsel of C.B.I. advocate, is no ground to
interfere with the impugned judgment. Having perused the findings
recorded by the trial court/Special Court and of the High Court, we are of
the view that the findings recorded in support of the case of the
prosecution were in conformity with the oral and documentary evidence
on record. We are satisfied from the findings recorded that the appellant
knowing fully well that the invoices/bills were fake and fabricated, were
presented on behalf of the firm to the bank and thus cheated the bank.
The prosecution has proved the guilt of the appellant herein beyond
reasonable doubt to record conviction of the appellant.
11. Though the learned counsel for the appellant relied on the
judgments in the case of Central Bureau of Investigation, Hyderabad v.
K. Narayana Rao1
; K.R. Purushothaman v. State of Kerala2
; Bharati
Telenet Ltd. V. Subhash Jain & Ors.3
; and A.S. Krishnan & Ors. V. State
1
 (2012) 9 SCC 512
2
 (2005) 12 SCC 631
3
 (2005) 11 SCC 599
8
Crl.A.No.2298 of 2010
of Kerala4
, having regard to facts of the case and evidence on record, of
the case on hand, we are of the view that the said judgments are not
helpful in support of the case of the appellant.
13. Having regard to totality of the facts and circumstances of the
case and evidence on record, taking note of the fact that the appellant
was working in the firm owned by the accused no.2 and he was salaried
employee, we deem it appropriate, it is a fit case to modify the sentence
imposed on the appellant, while confirming the conviction. This Court, in
State of Madhya Pradesh v. Udham and Others5
, has clearly laid down
guidelines for sentencing. In assessing the sentencing, the crime test
requires us to evaluate and provide adequate deference to factors such
as role of the accused and his position within the rank of conspirators,
among other things. There is no dispute that, from the facts and
circumstances, the appellant was working in the firm owned by accused
no.2 and he was relatively lower in the hierarchy. It needs to be
highlighted that he was only a salaried employee. Accordingly, we
modify the sentence of R.I. for a period of one year for the offence
punishable under S.120B read with S.161, 166, 420, 471 of I.P. Code
and also read with S.5(1)(d) further read with S.5(2) of the Prevention of
Corruption Act, 1947; R.I. for a period of one year and to pay fine of
Rs.5000/-, in default to suffer further R.I. for period of six months for the
offence punishable under sec.420, 420-120B of I.P. Code; R.I. for a
4
 (2004) 11 SCC 576
5
 2019 SCC OnLine SC 1378
9
Crl.A.No.2298 of 2010
period of one year and to pay a fine of Rs.2000, in default to suffer
further R.I. for period of three months for the offence punishable under
S.471 read with S.468 of I.P. Code in respect of the user of seven
forged motor transport receipts; R.I. for a period of one year and to pay
a fine of Rs.2000. in default to suffer further R.I. for period of three
months for the offence punishable under S.471 read with S.468 and
further read with S.120B of I.P. Code in respect of the user of the 11
Photostat copies of exhs.942 to 952. We further order that all the
sentences shall run concurrently.
14. The appeal is allowed in part to the extent of modifying the period
of sentence. As the appellant was on bail pursuant to orders passed by
this Court on 16.11.2009, his bail bonds are cancelled. He shall
surrender within a period of four weeks from today to serve the
remaining period of sentence, failing which respondent-State shall take
steps to take the accused into custody to serve the remaining period of
sentence.
….………………………………..J.
[N.V. RAMANA]
….………………………………..J.
[R. SUBHASH REDDY]
….………………………………..J.
[B.R. GAVAI]
10
Crl.A.No.2298 of 2010
New Delhi.
December 18, 2019.
11

Right of Cross Examination = Though, we are not disturbing the findings of the Tribunal regarding the compliance of Rule 180 of the Army Rules, we are of the considered opinion that the direction given by the Tribunal requires modification. Without the report of the one man inquiry, the Appellant was certainly disabled from effectively defending himself in the Court of Inquiry. The Appellant is entitled to an opportunity to cross examine the witnesses against him after examining the one man inquiry report. Further, the Appellant raised the issue of the one man inquiry report not being provided to him at the earliest possible time. Therefore, the directions issued by the Tribunal that disciplinary proceedings be conducted afresh requires to be modified. The Court of Inquiry has to be conducted afresh. The Appellant is entitled to cross-examine witnesses and produce witnesses in his favour.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 9223- 9224 of 2019
Brigadier L.I. Singh YSM .... Appellant(s)
Versus
Union of India & Ors. …. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. The refusal of the Armed Forces Tribunal, Principal
Bench, New Delhi (for short “the Tribunal”) to interfere
with the disciplinary action initiated against the
Appellant is the subject matter of these Appeals.
2. The Appellant was commissioned in the Jammu &
Kashmir Light Infantry, Indian Army on 17.12.1983. He
was the Commander of 164 Mountain Brigade from
01.12.2012 to 29.03.2012. Brigadier R.K. Jha took over
[1]
as the Commander of 164 Mountain Brigade on
30.03.2012. After taking over, Brigadier R.K. Jha was
informed that the property of the Flag Staff House was
not properly accounted for and certain items were
missing as they were taken away by the Appellant.
Brigadier R.K. Jha made inquiries with Major Amit Slathia
and Havildar Yongendra Bahadur Gurung. On being
satisfied that certain items were missing, Brigadier R.K.
Jha directed Colonel S.S. Sidhu, the then Deputy
Commander to undertake a physical check of the Flag
Staff House property. According to the inquiry
conducted by Major Siddharth Virmani and Havildar
Yogendra Bahadur Gurung. Two Heat Pillars, three
carpets and two flower pots were taken away by the
Appellant along with his luggage by being treated as
unserviceable.
3. When Brigadier R.K. Jha visited unit 4/1 GR along
with Major Ishani Maitra, Education Officer of 164
Mountain Brigade, he was informed by her that Mrs.
[2]
Nirmala Singh, wife of the Appellant had borrowed
money which was subsequently not returned. Having
learnt about the excess commission and omission by
the Appellant, the General Officer Commanding 17
Mountain Division directed a discrete investigation
against the Appellant. After an investigation, Brigadier
R.K. Jha found the following acts and omissions on the
part of the Appellant :
“(i) It was reported by the then Deputy
Commander, Colonel (Now Brigadier) S.S.
Sidhu that Mrs. Sidhu had got a call from Mrs.
L.I. Singh requesting for some money which as
per the Officer, was politely declined.
(ii) It was reported by Major Amit Slathia,
SC that he was under severe duress to obtain
money for the Appellant from Civil Hired
Transport contractors. As reported by the
Officer, since he could not withstand the
pressure and humiliation, he gave Rs.20,000/-
[3]
(Rupees twenty thousand only) out of his own
pocket to the Appellant, by withdrawing money
from an ATM at Pedong.
(iii) Major Akhil Mendhe, Second-inCommand of 6 RAJ RIF who happened to be in
the Brigade Headquarters on a particular day
when Brigadier R.K. Jha was interacting with
the officers, informed Brigadier R.K. Jha that a
loan of Rs.1.00.000/- (Rupees one lakh only)
was arranged for Brigadier L.I. Singh, YSM from
his Unit Wet Canteen Contractor.
(iv) Colonel M. Ravi Shanker,
Commanding Officer 4/1 GR informed Brigadier
R.K. Jha that when the Appellant was the
Commander, a loan of Rs.2,00,000/- (Rupees
two lakhs only) was arranged from his Unit Wet
Canteen Contractor for the Appellant, which
was subsequently returned.
[4]
(v) Lieutenant Colonel V.S. Parmar, Admn
Comdt of Station Headquarters, Pedong
reported that the Appellant had taken some
favours from the vendors dealing with the
Station Headquarters, Pedong.”
4. Brigadier R.K. Jha reported accordingly to the
General Officer Commanding 17 Mountain Division who
in return reported to the GOC 33 Corps. Before ordering
an investigation, it was decided that a preliminary
investigation/ one man inquiry should be held. With a
view to find out the correctness of the allegations
against the Appellant, the General Officer Commanding
27 Mountain Division was asked to carry out the
preliminary investigation.
5. On the basis of the report submitted in the
preliminary investigation (One Man Inquiry) and the
verbal complaints made by officers and noncommissioned officers to Brigadier R.K. Jha, a Court of
Inquiry was convened on 09.06.2012. The
[5]
terms of reference given to the Court of Inquiry are as
follows:
“(i) Borrowing of money from the wet
canteen contractors of units under his
command.
(ii) Pressurizing IC-59235K Maj. Amit
Slathia, SC, AA&QMG, Headquarters 164
Mountain Brigade to obtain Rs.45,000/- from
the Civil Hired Transport contractor for him
(Brigadier L.I. Singh, YSM).
(iii) Illegally taking away official property
of the Flag Staff House prior to relinquishing
his appointment.
(iv) Accepting items viz., Laptop worth
Rs.62,000/- and Cannon Camera worth
Rs.56,000/- from M/s. United Enterprises and
M/s. Narbada Enterprises respectively.
[6]
(v) Any other misdemeanour or financial
impropriety which may have been committed.”
6. The General Inquiry Commander 33 Corps recorded
a finding against the Appellant for the following acts and
omissions:
“(i) Borrowing Rs.2,00,000/- from the Unit
Canteen Contractor of 4/1 GR Sri Paramanand
Agarwal and his manager Sri Om Prakash
Agarwal through Col. Kapil Sood then CO 4/1
GR in Jan. 2011.

(ii) Borrowing Rs.1,00,000/- from the Unit
Canteen Contractor of 6 RAJ RIF Sri Shiv
Prakash Agarwal through Col. H.S. Baidwan,
SC, Commanding Officer 6 RAJ RIF in Dec.2011.
(iii) Borrowing Rs.35,000/- from Hav.
Rajendra Singh of 6 RAJPUT through his wife
Mrs. Nirmala Singh in Aug.2011.
[7]
(iv) Directing IC-59235K Maj. Amit
Slathia, SC, AA&QMG of Headquarters 164,
Mountain Brigade to obtain a gratification of
Rs.45,000/- from the Civil Hired Transport
Contractor for himself and thereafter accepting
Rs.20,000/- from Maj. Amit Slalthia, SC who
paid the same from his own pocket so as to
avoid his repeated demands.
(v) Misappropriating the following
property of the Government given him for his
own use at his Flag Staff House:-
 (aa) Heat Pillar - 02
(ab) Carpet 6” x 4” -
01
(ac) Carpet 3” x 2” -
02
(ad) Crystal Flower Pot (Medium) - 01
(ae) Crystal Flower Pot (Big) - 01
(vi) Accepting illegal gratification in the
form of a Laptop (Dell Model No.552 (XPX 15 R)
[8]
worth Rs.62,000/- from M/s. United Station
Headquarters, Pedong and Headquarters 164
Mountain Brigade.
(vii) Accepting illegal gratification in the
form of Canon Digital Camera (SLR EoS 60 D)
and 4 GB card worth Rs.56,000/- from M/s.
Narbada Enterprises, a firm carrying out
business of supplying stores with Headquarters
164 Mountain Brigade.
(viii) Transferring Rs.97,211/- in three
transactions to his daughter then studying in
New Zealand through Mr. Ramesh Gurung
brother of No.5349475F Nk Dinesh Gurung of
3/ 4 GR so as to avoid any detection of transfer
of money from his account.
(ix) Issuing directions to IC-47865X
Lieutenant Colonel T.S. Kadian, SM to procure
items for Pedong Sainik Institute through M/s.
Narbada Enterprises only, thereby influencing
[9]
the entire tendering process and in turn
obtaining items at a high rate such as Sharp
Video Projection System at Rs.95,000/- though
the prevailing market rate and DGS&D rate are
Rs.40,000/- and Rs.26,500/- respectively, thus
causing wrongful loss to the State.
(x) Committing financial impropriety
leading to misappropriation of Regimental Fund
of Headquarters 164 Mountain Brigade by way
of directing IC-47865X Lieutenant Colonel T.S.
Kadian, SM to clear his personal expenditure
incurred in the Flag Staff House and during his
visit by making false handmade bills. Such a
practice was also in contravention to rules/
regulations on proper utilization of Regimental
Funds.”
7. A prima facie case was made against the Appellant
and he was attached to the Headquarters, 20 Mountain
Division in accordance with the provisions of Army
[10]
Instructions 30 of 1986. The Appellant filed O.A. No.85
of 2013 in the Armed Forces Tribunal, Principal Bench,
New Delhi challenging the order of attachment, which
was dismissed by the Tribunal at the admission stage.
Aggrieved by the said order of the Tribunal, the
Appellant filed a Writ Petition in the High Court of Delhi.
In the meanwhile, the disciplinary proceedings were
initiated against the Appellant by commencing hearing
of charge in terms of Rule 22 of the Army Rules, 1954
(for short “the Army Rules”) on the basis of the
tentative charge sheet. During the hearing of charge,
17 witnesses were examined and the Appellant crossexamined two witnesses.
8. By an order dated 29.04.2013, the High Court
stayed further proceedings against the Appellant. The
Writ Petition was dismissed by an order dated
20.03.2015, giving liberty to the Appellant to pursue his
remedies under Section 30 and 31 of the Armed Forces
Tribunal Act, 2008. A Review Application filed by the
[11]
Appellant was allowed by the Tribunal on 27.01.2016
and the Original Application was admitted. The order by
which the Review Application was admitted by the
Tribunal was challenged by the Respondent- Union of
India in this Court, unsuccessfully. By an order dated
06.02.2019, O.A. No.85 of 2013 was finally disposed of
by directing the Respondent- Union of India to supply a
copy of the one man inquiry report to the Appellant and
to commence the disciplinary proceedings against the
Appellant. Applications filed by the Appellant for Review
and Leave to Appeal to this Court were dismissed by the
Tribunal. The judgment and the order by which
application for review was dismissed are assailed by the
Appellant in these Appeals.
9. Consequent upon the dismissal of O.A. No.85 of
2013 by the Tribunal, the Appellant reported to the
Headquarters, 21 Mountain Division on 17.01.2019. A
copy of the one man inquiry was handed over to the
Appellant and recording of summary evidence which
[12]
commenced on 26.03.2016 was in progress. In the
meanwhile, the Appellant retired from service on
30.04.2019. Thereafter, Section 123 of the Army Act
was invoked to continue the disciplinary proceedings
against the Appellant. As the interim order passed by
this Court on 06.02.2019 was operative, the disciplinary
proceedings could not proceed.
10. Before the Tribunal, the Appellant contended that
initiation of disciplinary proceedings against him was
vitiated by mala fide. He further contended that there
was infraction of Rule 180 of the Army Rules. The main
submission of the Appellant before the Tribunal was that
a copy of the one man inquiry report was not furnished.
As the one man inquiry report was the basis for
initiation of the Court of Inquiry proceedings, it was
contended that the Appellant was deprived of an
opportunity to defend himself effectively before the
Court of Inquiry. The Appellant further complained that
an opportunity as provided by Rule 180 of the Army
[13]
Rules was not extended to him during the course of the
inquiry proceedings. The Tribunal rejected his
submission of any mala fide made against the
Appellant. However, the Tribunal held that the
Appellant was wrongfully denied a copy of the one man
inquiry report during the inquiry proceedings. Insofar as
the complaint of an opportunity not being given to the
Appellant as per Rule 180 of the Army Rules, the
Tribunal observed that the Appellant was present
throughout the proceedings of the Court of Inquiry and
that he avoided the opportunity of cross-examining the
witnesses as well. The allegation of violation of Rule
180 made by the Appellant was not accepted by the
Tribunal. The Tribunal took note of the fact that the
disciplinary proceedings were stalled due to cases
pending in courts. While directing that the one man
inquiry report shall be handed over to the Appellant, the
Tribunal directed the Respondents to complete the
process of disciplinary proceedings.
[14]
11. Mr. Sudhanshu S. Pandey, learned counsel
appearing for the Appellant made a valiant effort to
convince us that the initiation of disciplinary
proceedings against the Appellant was due to
extraneous considerations. He submitted that the
records have been concocted to show compliance of the
procedure provided in Rule 180 during the Court of
Inquiry. According to him, there is a clear violation of
Rule 180 of the Army Rules as the Appellant was not
given sufficient opportunity to defend himself. He
submitted that the Appellant is being tormented with an
ulterior motive in spite of his retirement after a
meritorious record of service. He urged that the
entire disciplinary proceedings should be quashed as
the Appellant has been victimized on the basis of
certain frivolous complaints even after his retirement.
12. Mr. R. Balasubramanian, learned Senior Counsel
appearing for the Respondents produced the original
record of the Court of Inquiry. Mr. Balasubramanian
[15]
submitted that there is no truth in the allegation that
the records have been manipulated by the Respondents.
He submitted that the one man inquiry was only in the
nature of a preliminary investigation to verify the facts
before the Court of Inquiry was ordered against the
Appellant. He argued that there was no violation of the
Rule 180 of the Army Rules as held by the Tribunal. He
submitted that full opportunity was given to the
Appellant during the course of the proceedings before
the Court of Inquiry. He stoutly defended the judgment
of the Tribunal by commending for our consideration
non- interference with the judgment of the Tribunal.
13. In view of the order we propose to pass, it is not
required to take into consideration the submissions
made on behalf of the Appellant regarding the
allegation of mala fides. Admittedly, the one man
inquiry report was not furnished to the Appellant. There
is no dispute that the basis for the convening of the
Court of Inquiry is the one man inquiry report. The
[16]
Tribunal directed the Respondents to provide a copy of
the one man inquiry report to the Appellant before
continuing with the disciplinary proceedings against the
Appellant. Though, we are not disturbing the findings of
the Tribunal regarding the compliance of Rule 180 of the
Army Rules, we are of the considered opinion that
the direction given by the Tribunal requires modification.
Without the report of the one man inquiry, the Appellant
was certainly disabled from effectively defending
himself in the Court of Inquiry. The Appellant is entitled
to an opportunity to cross examine the witnesses
against him after examining the one man inquiry report.
Further, the Appellant raised the issue of the one man
inquiry report not being provided to him at the earliest
possible time. Therefore, the directions issued by the
Tribunal that disciplinary proceedings be conducted
afresh requires to be modified. The Court of Inquiry has
to be conducted afresh. The Appellant is entitled to
cross-examine witnesses and produce witnesses in his
favour.
[17]
14. For the aforementioned reasons, we affirm the
judgment of the Tribunal with the modification
mentioned above. The Court of Inquiry shall be held
against the Appellant afresh. As the Appellant has
retired from service, the Court of Inquiry may be
initiated and completed expeditiously. Further
proceedings, if any, may be conducted without any
delay.
15. The Appeals are disposed of accordingly.

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

 ..…………..
……...................J.
 [ AJAY
RASTOGI ]
New Delhi,
December 17, 2019.
[18]

shifting of licensed Liquor Shop = We find no prohibition in the Excise Act or Rules for shifting the F.L.1 Licensed premises from one place to another. The permission dated 07.06.2018 for shifting the licensed shop from Mahe to Karaikal granted by Respondent No. 3 is legal and valid.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9494­9495 OF 2019
(Arising out of SLP (Civil) No. 10744 – 10745 of 2019)
M/S CEE CEE & CEE CEE’S      …APPELLANT
versus
K. DEVAMANI & ORS.         …RESPONDENTS
J U D G M E N T
INDU MALHOTRA, J.
Leave granted.
1. The   Appellant   is   an   F.L.­   1   License   holder   issued   on
26.10.2016  by  the   Deputy  Commissioner,  Excise,  Mahe
under   the   Puducherry   Excise   Act,   1970   (“Excise   Act”).
Under the F.L. ­ 1 License, the Appellant is permitted to
sell Indian Made Foreign Liquor (“IMFL”) to other License
holders, and not in retail.
1
2. On 28.02.2017, the Appellant filed an Application before
the Deputy Commissioner (Excise), Mahe for shifting his
licensed Liquor Shop from Mahe to Karaikal under Rules
163   and   209   of   the   Puducherry   Excise   Rules,   1970
(“Excise Rules”).
3. The Deputy Commissioner (Excise), Mahe forwarded the
Application   to   Respondent   No.   3   –   the   Deputy
Commissioner   (Excise),   Karikal  vide  letter   dated
07.03.2017, and requested Respondent No. 3 to conduct
an   inspection   to   assess   the   suitability   of   the   site   at
Karaikal.
4. Respondent No. 1, a resident of Karaikal, submitted an
objection   dated   02.06.2017   before   the   Sub   –   Collector
(Excise), Collectorate, Karaikal to oppose the shifting of the
liquor   shop   to   Karaikal.   Respondent   No.   1  inter   alia
submitted   that   pursuant   to   the   Judgement   dated
15.12.2016 passed in State of Tamil Nadu v. Balu1
, various
liquor shops had been shifted from other regions to the
residential areas in Karaikal. The Court had directed that
no shop for the sale of liquor could be situated within a
1 (2017) 2 SCC 281 : AIR 2017 SC 262 : 2017 (1) SCJ 586.
2
distance of 500 meters of the outer edge of the National or
State Highways or of a service lane along the Highway.
It was submitted that shifting of the shop was contrary
to public interest of the residents of Karaikal. For about 35
houses in Nedunkadu circle, Karaikal, there were 35 liquor
shops already operational.
It was further submitted that the Madras High Court
vide Order dated 07.03.2003 in K. Murali v. Commissioner
(Excise)­cum­Secretary in W.P. (Civil) No. 39661/2002 had
interpreted the expression ‘from one place to another’ in
Rules   163   and   209   of   the   Excise   Rules   to   mean   that
shifting was permissible only within a particular local area,
panchayat   or   commune,   and   not   from   one   region   to
another in the Union Territory.
In view of the restrictive meaning of the word ‘place’,
the Licensing Authority could not grant permission to shift
the   licensed   shop   of   the   Appellant   from   one   region   to
another i.e. from Mahe to Karaikal, which is at a distance
of 650 kilometers.
3
The shifting of liquor shops from one region to another
would be in contravention of Rules 163 and 209 of the
Excise Rules.
5. Respondent No. 1 and one K. M. Baskar filed W.P. (Civil)
Nos. 13081/2017 and 15953/2017 before the Madras High
Court for the issuance of a writ of mandamus restraining
Respondent No. 2 and 4 ­ Excise Authorities from shifting
liquor shops from Mahe to Karaikal.
The Madras High Court  vide  Order dated 26.02.2018
directed the Excise Authorities to consider the objections
raised by Respondent No. 1 along with the Application for
shifting filed by the Appellant in accordance with law.
6. Respondent   No.   3   ­   Deputy   Commissioner   (Excise),
Karaikal granted a personal hearing to Respondent No. 1
on 01.03.2018.
7. Respondent   No.   3   ­   Deputy   Commissioner   (Excise),
Karaikal  vide  Order   dated   27.03.2018   rejected   the
objections raised by Respondent No. 1, on the ground that
the Order dated 07.03.2003 passed by a single judge of the
Madras High Court in K. Murali (supra) was set aside by a
division bench vide Order dated 06.09.2005.
4
8. Respondent No. 1 filed a 2nd  W. P. (C) No. 11767/2018
before the Madras High Court to quash the Order dated
27.03.2018, and restrain Respondents No. 2 to 4 ­ Excise
Authorities from permitting the re­location of liquor shops
from   Mahe   to   Karaikal,   and   granting   liquor   licenses   in
Karaikal.
9. Respondent   No.   2   –   Deputy   Commissioner   (Excise),
Puducherry  vide  Order   No.   2239/DCE/S2/FL­1/2017   –
2018/251   dated   07.06.2018   granted   permission   to   the
Appellant to shift the liquor shop from Mahe to Karaikal,
subject to the fulfillment of the conditions contained in
Rule 209 of the Excise Rules.
10. The Deputy Commissioner (Excise), Mahe vide Order dated
13.06.2018   conveyed   the   permission   granted   by
Respondent   No.   2   –   Deputy   Commissioner   (Excise),
Puducherry   to   the   Appellant.   The   approval   was   made
subject to the following two additional conditions:
(i) there will be one entrance and exit only; and
(ii) the   boundary   of   the   proposed   site   should   be
protected properly.
5
11. Respondent   No.   3   –   the   Deputy   Commissioner,   Excise,
Karaikal vide Order dated 15.06.2018 granted permission
to the Appellant to commence his business of wholesale
vending of IMFL at Karaikal.
12. Respondent   No.   1   filed   a   3rd  W.   P.   (Civil)   15661/2018
before the Madras High Court to quash the Order dated
15.06.2018, and restrain Respondent Nos. 2 to 4 ­ Excise
Authorities   from   shifting   liquor   shops   from   Mahe   to
Karaikal, on the grounds similar to those raised in the 2nd
W.P. (Civil) No. 11767/2018.
The High Court vide Order dated 05.07.2018 granted
interim   stay   of   the   Order   dated   15.06.2018   passed   by
Respondent No. 3.
13. The Excise Authorities supported the case of the Appellant
–   License   holder   in   W.P   (Civil)   Nos.   11767/2018   and
15661/2018.
14. A division bench of the Madras High Court vide Impugned
Judgement   and   Order   dated   14.02.2019   allowed   W.P.
(Civil) Nos. 11767/2018 and 15661/2018, and quashed
the Orders dated 27.03.2018 and 15.06.2018 passed by
Respondent No. 3. The permission granted by Respondent
6
No. 2 to 4 to shift the Licensed Shop of the Appellant from
Mahe to Karaikal was set aside.
The   division   bench   held   that   the   disposal   of   the
representation   by   Respondent   No.   3   –   Deputy
Commissioner (Excise) Karaikal was not in accordance with
the Order dated 26.02.2018 passed in W.P. (Civil) Nos.
13081/2017 and 15953/2017.
The word / phrase / term “place” in the Excise Act and
Excise Rules had a restrictive meaning. The area defined
by Section 2 (22) of the Excise Act was restricted to the
“area” in which the liquor shop was located. The order
which permitted shifting of the wholesale liquor shop of the
Appellant from Mahe to Karaikal had to be confined to the
region of Mahe, and not to Karaikal, which is an entirely
different region in the Union Territory of Puducherry.
15. Aggrieved by the Order dated 14.02.2018, the Appellant –
Licensed   holder   has   filed   the   present   Special   Leave
Petition.
We   have   heard  Mr.   Mahesh   Jethmalani,   Senior
Counsel for the Appellant, Mr. R. Venkataramani, Senior
7
Counsel for the Union Territory and office bearers, and Mr.
S. Thananjayan, Counsel for Respondent No. 1.
16. The issue which arises for our consideration is whether the
permission granted by  Respondent  Nos. 2 to 4 ­ Excise
Authorities to transfer the licensed shop from one region to
another   in   the   Union   Territory   of   Puducherry   was
permissible under the Excise Act and Rules.
17.     RELEVANT STATUTORY PROVISIONS
The Puducherry Excise Act, 1970 provides a uniform law
relating   to  the  production,   manufacture,   possession,
import, export, transport, purchase and sale of liquor, and
intoxicating drugs in the Union Territory of Puducherry.
17.1. Section 1(2) extends the applicability of the Excise Act to
the whole of the Union Territory of Puducherry.
17.2. The word ‘place’ is defined in Section 2 (22) as follows:
“2. – Definitions
…
(22) “place” includes a house, building, shop, booth, tent,
vessel, raft, and vehicle.”
The   word   ‘place’   does   not   indicate   the   territorial
limits within which the Licensing Authority could grant
shifting of a licensed shop.  Section 2(22) describes the
type of structure or establishment of the licensed shop,
8
which could either be a house, building, shop, booth,
tent,   vessel,   raft,   or   vehicle   in   which   the   licensed
premises is situated.
17.3. Section 14 of the Excise Act provides that no liquor or
intoxicating drug will be sold without a license issued by
the Licensing Authority i.e. the Deputy Commissioner or
Excise Commissioner. 
17.4. Section 70 of the Excise Act empowers the Government
to frame rules for carrying out the functions of the Act.
The   Government   has   enacted   the   Puducherry   Excise
Rules, 1970 in exercise of the powers under Section 70.
Rule 1(2) extends the applicability of the Excise Rules
to the whole of the Union Territory of Pondicherry.
i) Rule 22A (a) of the Excise Rules defines ‘region’ as any of
the   4 regions  of  the  Union  Territory  viz,  Pondicherry,
Karaikal, Mahe and Yanam.
“CHAPTER­IIA
Control of inter­State Transport of Liquor
22.   A.   Definitions   —   In   this   Chapter,   unless   there   is
anything repugnant in the subject or context—
(a)   “Region”   means   any   of   the   regions   known   as
Pondicherry,   Karaikal,   Mahe   and   Yanam   in   the   Union
territory of Pondicherry.”
9
ii) Rule 113 of the Excise Rules provides for the grant of an
F.L.­ 1 license for wholesale vending of liquor.
“CHAPTER – VI
Sale of Indian or Foreign liquors
113. Licences. — Licences for the sale of Indian liquor or
foreign liquor or both shall be of the following descriptions,
and shall be granted by the Excise Commissioner or Deputy
Commissioner, as the case may be, in accordance with the
provisions   of   sub­section   (2)   of   section   14   of   the   Act,
namely:—
(1)   F.L.   1   Licence:—   The   holder   of   this   licence   shall   be
permitted to sell foreign liquor or Indian liquor, or both, in
quantities of not less than 9 litres in sealed or capsuled
bottles 2[***] at any one time and in any single transaction
to any other licensee under this chapter and also in sealed
or capsuled bottles in quantities not exceeding 3 [4.5 litres
of all liquors other than beer and 9 litres of beer] at any one
time and in any single transaction to an unlicensed person.
But he shall not allow the consumption of the liquor at the
licensed premises:
Provided that such licensees may issue another licensed
dealer samples of liquors, in quantities not exceeding 0.180
litres.”
iii) The procedure for transfer of a licensed liquor shop is
provided under Rule 209 of the Excise Rules.
“CHAPTER—XIII
Excise Licences (General Conditions)
209. Shifting of shops: — The licensee shall not shift the
licensed premises from one place to another without the
prior approval of the Licensing Authority.
Provided that the licensing authority may permit, subject
to the fulfilment of conditions of licence, shifting of licensed
premises on payment of one­fourth of the license fee for
such shifting”
iv) The term ‘shop’ is defined by Rule 189 of the Excise
Rules, as follows:
“CHAPTER—XIII
Excise Licences (General Conditions)
…
10
189.   Definition   —   In   this   chapter,  “shop”   means   the
licensed premises where liquor is sold.”
(emphasis supplied)
18.     DISCUSSION   & ANALYSIS
18.1. Rule 113 under Chapter VI of the Rules pertains to the
sale of Indian or foreign liquors. It provides that the
Excise   Commissioner   or   Deputy   Commissioner   may
issue an F.L. – 1 License for the sale of Indian liquor or
foreign   liquor,   or   both,   in   accordance   with   the
provisions of Section 14 (2) of the Excise Act.
18.2. Chapter XIII of the Excise Rules contains the General
Conditions   of   Excise   Licenses.   Rule   188   states   that
Chapter XIII will apply to all Licenses issued under the
Excise   Act   for   sale   of   liquors,   and   every   license   is
deemed to include the conditions prescribed herein.
Rule 189 of the Excise Rules describes “shop” as the
licensed premises from where liquor is sold.
Rule 191 (2) provides that the applicant of a license
shall select a site, and intimate the licensing authority,
who may, after making such enquiry as he thinks fit,
approve the site selected.
11
Rule 191 (4) provides that the Licensee shall sell the
liquor only from the approved shop.
19. The Appellant is the holder of an F.L. – 1 License issued by
the   Licensing   Authority  viz.   the   Deputy   Commissioner,
Excise, Mahe for carrying out vending of IMFL.
An F.L.­1 Licensee is permitted to sell liquor only to
other Licensees, and not in retail.
19.1. The Petitioner was carrying out his wholesale business
from MMC, No. 1/40,41 Main Road, Mahe.
19.2. The Appellant filed an Application dated 28.02.2017 for
shifting his liquor shop from Mahe to Karaikal under
Rules   163   and   209   of   the   Excise   Rules   before   the
Deputy Commissioner, (Excise), Mahe.
19.3. Rule 209 in Chapter XIII of the Excise Rules provides
for Shifting of Shops of all license holders, whether
wholesale or retail.
Rule 209 permits shifting of the liquor shop from one
“place” to another, subject to approval by the Licensing
Authority   on   the   terms   and   conditions   contained
therein.
12
The proviso to Rule 209 states that the Licensing
Authority may permit shifting of the licensed premises,
subject to the fulfillment of the conditions of license,
and   payment   of   1/4th  of   the   license   fee   for   such
shifting.
There is no restriction or prohibition either in the
Excise Act or Rules on the Licensing Authority from
granting permission to shift the licensed shop from one
region   to   another,   subject   to   the   conditions   being
complied with.
A fortiori, a licensee can shift a liquor shop from
one   region  to   another   within   the   Union   Territory   of
Puducherry,   subject   to   the   prior   approval   of   the
Competent Authority.
20. We are of the view that the expression ‘from one place to
another’ is not restrictive, and does not curtail the power of
the Licensing Authority to grant permission for shifting the
licensed shop from one region to another in the Union
Territory of Puducherry so long as the conditions stipulated
by the Excise Act and Excise Rules, as also the conditions
for grant of a license are complied with. The shifting should
13
not result in the increase in number of liquor shops beyond
the maximum number of licenses which may be fixed for a
particular area under Rule 122 of the Excise Rules.
21. Given the peculiar demography of the Union Territory of
Puducherry, which comprises of four unconnected regions,
it  would  be   contrary   to   the   object   and   purpose   of   the
Excise Act, if a restrictive meaning was to be given to Rule
209 of the Excise Rules. The Act must be read as a whole
to ascertain the intent of the legislature.
If the intention of the legislature was to restrict the
shifting of a liquor shop to a region, locality, municipality,
or   commune,   Rule   209   of   the   Excise   Act   would   have
expressly contained such a prohibition, which is absent.
22. The Excise Act and the Excise Rules use the expression
‘local   area’   in   contra­distinction   with   the   word   ‘place’,
whenever it is intended to confine the area in which the
liquor shop is located. For instance, Section 9 of the Excise
Act prohibits the transportation of intoxicants from one
‘local area’ to another. Similarly, Section 10 of the Excise
Act restricts the movement of intoxicants beyond a certain
quantity which is stipulated for a ‘local area’.
14
23. We find from the Counter Affidavit filed by the State that
similar   proposals   for   shifting   5   shops   to   Karaikal   from
other regions were granted by the Licensing Authority, as
per details given hereinbelow :
Sr.No. Name   &
License No.
Date   of   Shifting   and
Order
Place of shifting
From  To
1. M/s
Vijayalakshmi
Wines
L.No. 8/FL­1
13.07.1995  vide  Order
No.   13142/93­
94/C2/DC(E)
Puducherry Karaikal
2. M/s   Vinoth
Liquors
L. No. 10/ FL1
21.01.2009  vide
Memorandum   No.
10526/DC(E)/C208   –
09
Puducherry Karaikal
3. M/s Ding Dong
Liquors
L. No. 11/ FL1
29.11.2013   vide   Order
No.
6146/DC(E)/C2/13­14
Puducherry Karaikal
4. M/s   Apollo
Wines
L. No. 12/FL­1
11.07.2014   vide   Order
No. 418/DC(E)/20­14
Mahe  Karaikal
5. M/s.   Fancy
Traders
L. No. 13/ FL1
13.01.2016   vide   Order
No.
5176/DC(E)/C2/215­
16
Puducherry Karaikal
24. The Counsel for the State submitted that Respondent Nos.
2 to 4 – Excise Authorities have assessed the pros and cons
of the shifting, and sought the view of the police authorities
prior to granting permission to the Appellant. The Report of
the Excise Officer was obtained, which stated that the site
of the Appellant at Karaikal is not located on the National
or State Highway. There are no religious or educational
15
institutions which are located within the 100 meters radius
of the site at Karaikal. There would be no hindrance to the
traffic in the area. The Superintendent of Police confirmed
that   there   would   be   no   law   and   order   problem   if   the
licensed shop of the Appellant is shifted. 
25. In the present case, the Licensing Authority i.e. the Deputy
Commissioner (Excise)  vide  Letter dated 07.06.2018 has
granted permission to shift the F.L.1 Licensed premises of
the Appellant from Mahe to Karaikal, subject to compliance
with the conditions laid down in Rule 209 of the Excise
Rules. The Deputy Commissioner (Excise), Mahe permitted
shifting   of   the   premises   subject   to   two   additional
conditions viz. 
(i) There shall be one and the same entrance and exit
only;
(ii) The boundary of the building should be properly
protected.
We   have   been   informed   by   the   Counsel   for   the
Appellant   and   the   State   that   all   conditions   under   the
Excise Act and Rules have complied with.
16
26. Consequently,   Respondent   No.   3   ­   the   Deputy
Commissioner   (Excise),   Karaikal  vide  letter   dated
15.06.2018 granted permission to the Appellant to run the
F.L.­1 business from the location designated in Karaikal.
27. We   find   no   prohibition   in   the   Excise   Act   or   Rules   for
shifting   the   F.L.1   Licensed   premises   from   one   place   to
another. The permission dated 07.06.2018 for shifting the
licensed   shop   from   Mahe   to   Karaikal   granted   by
Respondent No. 3 is legal and valid. 
28. We allow the Civil Appeals and set aside the Order dated
14.02.2019 passed by the division bench of the Madras
High   Court   in   W.P.   (Civil)  Nos.   11767/2018   and
15661/2018.
29. Ordered accordingly.
Pending applications, if any, are accordingly disposed.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
December 18, 2019.
17

the divorce legislations in India are based on the ‘fault theory’, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and “live his life”, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end. The respondent is a qualified lawyer; she claims to have not gone back to her family in Canada, but stayed in India only to battle this litigation. The respondent is being paid Rs.7,500 per month by the appellant. With a law degree she would be able to meet her needs better, though she claims that her sole concentration has been on the inter se 12 dispute. Be that as it may, we are of the view that the maintenance of Rs.7,500 per month should be continued to be paid by the appellant to the respondent, and it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted.

 the divorce legislations in India are based on the ‘fault theory’, i.e., no party should take advantage of his/her own fault, and that the ground of irretrievable breakdown of marriage, as yet, has not been inserted in the divorce law, despite a debate on this aspect by the Law Commission in two reports.

No doubt there is no consent of the respondent. But there is also,  in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and “live his life”, forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us.

We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.

The respondent is a qualified lawyer; she claims to have not gone back to her family in Canada, but stayed in India only to battle this litigation. The respondent is being paid Rs.7,500 per month by the appellant. With a law degree she would be able to meet her needs better, though she claims that her sole concentration has been on the inter se 12 dispute. Be that as it may, we are of the view that the maintenance of Rs.7,500 per month should be continued to be paid by the appellant to the respondent, and it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted.

Reportable
IN THE SUPREME COURT OF INDIA
CIVILAPPELLATE JURISDICTION
CIVIL APPEAL NO.9318 OF 2014
MUNISH KAKKAR … Appellant
VERSUS
NIDHI KAKKAR …Respondent
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. Marriages are said to be made in heaven. They are broken on
earth. We are faced with a scenario where for the better part of almost
two decades, the parties before us, who are husband and wife, have been
engaged in multifarious litigation, including a divorce proceeding, which
forms subject matter of the appeal before us.
2. The marriage between the parties was solemnized at Jalandhar
1
according to Hindu rites on 23.4.2000, where apparently the family of the
appellant was based. The family of the respondent is stated to have been
based in Canada. It appears from the allegations that the constant period
of stay of the parties was only for about two months, with the respondent
moving back and forth, but, undisputedly on 24.5.2001, the respondent
left for Canada to be with her family. It is the case of the appellant that
this was not with his consent, while on the other hand it is the case of the
respondent that she was making an endeavour for immigration of the
appellant to Canada, and at his behest. The respondent did not return to
India till 16.8.2002, which was soon after she obtained Canadian
citizenship on 6.8.2002. It is also an admitted position that during this
time, no papers were filed with the Canadian authorities for immigration
of the appellant and that the respondent puts the blame on incomplete
papers sent by the appellant. As to why the papers could not be
completed over such a long period of time is a moot point. It does appear
that the respondent was apparently interested in Canadian citizenship and
only after having achieved that, came back to India.
3. The parties resided for barely two and a half months together,
when a fight is stated to have broken out between the parties and the
2
respondent again left the company of the appellant. There was an
intervention by the Panchayat and the parties were asked to reside
separately from their family, in a rented accommodation, but that too did
not last for more than a couple of months. The respondent is stated to
have left the common residence on 15.4.2003 after an altercation and
then again left for Canada.
4. The aforesaid resulted in the appellant filing a petition for divorce
under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground
of cruelty, on 16.5.2003.
5. It is the appellant’s case that he had reasonable apprehension about
the safety of his life and limb, and that the respondent was really not
interested in living with the appellant in India, away from Canada. The
loneliness and lack of co-habitation is stated to have caused physical and
mental torture. The appellant also sought to make out a case that the
respondent was suffering from depression and was on medication.
Despite the appellant’s stable job in India, the respondent kept on
pressuring him to shift to Canada, and despite his reluctance he had
3
signed the immigration papers in order to save his marriage. However,
the papers were never submitted. In fact, he came to know that the
respondent herself had reached Canada on improper travel documents
and, thus, could not apply for the appellant’s immigration. It is the
further submission of the appellant that all stridhan was taken away by
the respondent in April, 2001 itself. The appellant has alleged that the
respondent was extremely suspicious and maligned his character in front
of his colleagues on the basis of alleged liaisons with his colleagues.
6. The respondent naturally had her own version and claimed to have
travelled to Canada to meet his insistence of immigrating to Canada,
though she admitted that she had not taken any documents of the
appellant with her to Canada. She, in fact, blamed the appellant of
abandoning her and made various other allegations including of dowry,
physical assault and extra-marital affairs. In respect of her continued stay
in Canada she claims to have had an “insect bite”! In her testimony, she
claims that an unconsented abortion took place when she was taken to a
doctor, though it is an admitted position that she never made a complaint
in respect thereof. The version of the appellant is different, i.e., that she
4
was taken for general medical treatment, and was in fact never pregnant.
7. The Additional District Judge, Nawanshahr vide judgment and
order dated 9.12.2009, granted a decree of divorce against which an
appeal was filed before the High Court. The learned Single Judge vide
impugned order dated 10.2.2011, however, set aside the decree of
divorce.
8. We may note here that the trial court’s view was predicated on
inter alia the continued character assassination by the respondent of the
appellant, since she had neither been able to prove any extra-marital
affair of the appellant, nor could she prove the factum of forcible
termination of pregnancy.
9. The learned Single Judge of the High Court, however, framed six
primary grounds to examine the case for dissolution of marriage. It is the
finding in the impugned order that while the parties did stay apart, no
sense of anger could be made out to display any real discord between the
parties herein; though there were adjustment issues. The learned Judge
5
took note of the allegations regarding extra-marital affairs made by one
another, including the allegation of having a child out of the wedlock, but
came to the conclusion that serious imputation could not be attached to
the same. The same were attributed to “inflamed passions”, which
resulted in these grave suggestions; but were opined to not knock down
the fundamental walls of marriage. It was concluded that neither party
had transgressed the limits in making imputations regarding each other’s
extra-marital affairs and, thus, this would not constitute cruelty. The
aspect of physical assault alleged by the parties was also said not to have
been established.
10. Insofar as the aspect of irretrievable breakdown of the marriage is
concerned, it was opined that since that did not form part of statutory law
in India, that could not be treated as a ground.
11. It is relevant to note that at various times there were efforts made
to mediate the dispute, which failed. Multiple efforts have been made
even by this Court, but to no avail. In a last ditch effort, the parties were
referred to a counselor after one of us, with the consent of the parties, had
6
taken the matter in chambers. The counselor/psychologist, however,
opined that the separation of sixteen (16) years since 2003 had made both
the parties bitter and cynical about the relationship and there was no sign
of any affection or bonding on either side. The parties apparently had no
history of pleasant time and only feelings of resentment arising from the
several court cases. There was also no family support from either side.
This would also be apparent, in our view, from the fact that there are
stated to be multiple cases filed by both set of family members against
the opposite party.
12. We had, thus, no option but to hear the parties at some length.
Despite our query of whether the respondent would like to be assisted by
a counsel, she refused the same and wanted to address the Court
personally, having acquired a law degree herself.
13. We have given our deep thought to the matter and to the
discussions in the trial court judgment and the High Court judgment.
Learned single Judge appears to have brushed aside the allegations of
extra marital affairs as also of a child out of the wedlock as part of the
7
wear and tear of marriage and as “inflamed passions.” The fact, however,
remains that the relationship appears to have deteriorated to such an
extent that both parties see little good in each other, an aspect supported
by the counselor’s report; though the respondent insists that she wants to
stay with the appellant. In our view, this insistence is only to somehow
not let a decree of divorce be passed against the respondent. This is only
to frustrate the endeavour of the appellant to get a decree of divorce,
completely losing sight of the fact that matrimonial relationships require
adjustments from both sides, and a willingness to stay together. The
mere say of such willingness would not suffice.
14. It is no doubt true that the divorce legislations in India are based on
the ‘fault theory’, i.e., no party should take advantage of his/her own
fault, and that the ground of irretrievable breakdown of marriage, as yet,
has not been inserted in the divorce law, despite a debate on this aspect
by the Law Commission in two reports.
15. We, however, find that there are various judicial pronouncements
where this Court, in exercise of its powers under Article 142 of the
8
Constitution of India, has granted divorce on the ground of irretrievable
breakdown of marriage; not only in cases where parties ultimately, before
this Court, have agreed to do so but even otherwise. There is, thus,
recognition of the futility of a completely failed marriage being continued
only on paper.
16. We have noticed above that all endeavours have been made to
persuade the parties to live together, which have not succeeded. For that,
it would not be appropriate to blame one or the other party, but the fact is
that nothing remains in this marriage. The counselor’s report also opines
so. The marriage is a dead letter.
17. Much could be said about what the learned single Judge has
observed as wear and tear of marriage and “inflamed passions”, but
wisdom requires us to not traverse that same path, as we feel that, on the
ground of irretrievable breakdown of marriage, if this is not a fit case to
grant divorce, what would be a fit case!
18. No doubt there is no consent of the respondent. But there is also,
9
in real terms, no willingness of the parties, including of the respondent to
live together. There are only bitter memories and angst against each
other. This angst has got extended in the case of the respondent to
somehow not permit the appellant to get a decree of divorce and “live his
life”, forgetting that both parties would be able to live their lives in a
better manner, separately, as both parties suffer from an obsession with
legal proceedings, as reflected from the submissions before us.
19. We may note that in a recent judgment of this Court, in R. Srinivas
Kumar v. R. Shametha,1
to which one of us (Sanjay Kishan Kaul, J.) is a
party, divorce was granted on the ground of irretrievable breakdown of
marriage, after examining various judicial pronouncements. It has been
noted that such powers are exercised not in routine, but in rare cases, in
view of the absence of legislation in this behalf, where it is found that a
marriage is totally unworkable, emotionally dead, beyond salvage and
has broken down irretrievably. That was a case where parties had been
living apart for the last twenty-two (22) years and a re-union was found
to be impossible. We are conscious of the fact that this Court has also
extended caution from time to time on this aspect, apart from noticing
1(2019) 9 SCC 409
10
that it is only this Court which can do so, in exercise of its powers under
Article 142 of the Constitution of India. If parties agree, they can always
go back to the trial court for a motion by mutual consent, or this Court
has exercised jurisdiction at times to put the matter at rest quickly. But
that has not been the only circumstance in which a decree of divorce has
been granted by this Court. In numerous cases, where a marriage is found
to be a dead letter, the Court has exercised its extraordinary power under
Article 142 of the Constitution of India to bring an end to it.
20. We do believe that not only is the continuity of this marriage
fruitless, but it is causing further emotional trauma and disturbance to
both the parties. This is even reflected in the manner of responses of the
parties in the Court. The sooner this comes to an end, the better it would
be, for both the parties. Our only hope is that with the end of these
proceedings, which culminate in divorce between the parties, the two
sides would see the senselessness of continuing other legal proceedings
and make an endeavour to even bring those to an end.
21. The provisions of Article 142 of the Constitution provide a unique
power to the Supreme Court, to do “complete justice” between the
11
parties, i.e., where at times law or statute may not provide a remedy, the
Court can extend itself to put a quietus to a dispute in a manner which
would befit the facts of the case. It is with this objective that we find it
appropriate to take recourse to this provision in the present case.
22. We are of the view that an end to this marriage would permit the
parties to go their own way in life after having spent two decades battling
each other, and there can always be hope, even at this age, for a better
life, if not together, separately.
23. We, thus, exercising our jurisdiction under Article 142 of the
Constitution of India, grant a decree of divorce and dissolve the marriage
inter se the parties forthwith.
24. The respondent is a qualified lawyer; she claims to have not gone
back to her family in Canada, but stayed in India only to battle this
litigation. The respondent is being paid Rs.7,500 per month by the
appellant. With a law degree she would be able to meet her needs better,
though she claims that her sole concentration has been on the inter se
12
dispute. Be that as it may, we are of the view that the maintenance of
Rs.7,500 per month should be continued to be paid by the appellant to the
respondent, and it is open for the parties to move appropriate proceedings
for either enhancement of this maintenance or reduction and cessation
thereof. We only hope that this aspect can also be reconciled between the
parties once a decree of divorce is granted.
25. The appeal is allowed leaving the parties to bear their own costs.
...……………………………J.
[Sanjay Kishan Kaul]
...……………………………J.
[K.M. Joseph]
New Delhi.
December 17, 2019.

13

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

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