1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.11199 OF 2017
(Arising out of S.L.P.(C) No.2153 of 2016)
The State of Maharashtra
& Anr. ….Appellant(s)
VERSUS
Kishor M. Gadhave Patil & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 16.12.2015 passed by the High
Court of Judicature of Bombay Bench at
Aurangabad in Writ Petition No. 8951 of 2015
whereby the High Court allowed the writ petition
1
2
filed by the respondents herein and made the ‘Rule’
absolute.
3) The controversy involved in the appeal, which
due to subsequent events, remains confined to very
narrow issues surviving for consideration. However
to appreciate what is survived, few relevant facts
need mention below.
4) The appellants herein-State of Maharashtra
and Joint Secretary, Law & Judiciary Department
were the respondents whereas the respondent Nos.
1 to 15 herein were the writ petitioners before the
High Court in a writ petition out of which this
appeal arises.
5) The respondents (Total 15) are advocates by
profession and have been practicing in various
Courts including Bench of the High Court at
Aurangabad (MH). The respondents were appointed
by the State Government as Additional Government
Pleaders (Addl.GP)/Assistant Government
2
3
Pleaders(AGP))/Additional Public Prosecutors(APP)
for the Bench of the High Court at Aurangabad by
order dated 05.10.2013 (Annexure-P-1). Similar
orders of appointment were issued by the State on
different dates in relation to some respondents.
6) The respondents accepted their appointment
and started functioning by discharging their duties
as Addl.GP/AGP/APP in Courts in terms of their
appointment orders. However, by order dated
28.08.2015, the State Government cancelled the
appointments of all the respondents w.e.f
28.08.2015 by taking recourse to the powers under
Rule 30(5) of the Maharashtra Law Officers
(Appointments, Conditions of Service and
Remuneration) Rules 1984 (hereinafter referred to
as "the Rules").
7) The respondents, felt aggrieved of the order
dated 28.08.2015, challenged its legality and
3
4
correctness in the writ petition out of which this
appeal arises.
8) By impugned order, the High Court allowed
the respondents’ writ petition and quashed the
order of cancellation dated 28.08.2015 which has
given rise to filing of this appeal by way of special
leave by the State of Maharashtra.
9) By interim order dated 29.01.2016, this Court
stayed the operation of the impugned order of the
High Court. As a result, the cancellation order
dated 28.08.2015 continued to remain in operation
against the respondents.
10) It is pertinent to mention here, as stated by the
learned counsel appearing for the parties, that
during the pendency of the appeal, the term of the
respondents on their respective posts expired on
different dates such as, 05.06.2010, 09.06.2010,
16.08.2010, 05.10.2010, 09.10.2016 and
22.10.2016.
4
5
11) It is with this background, the question arises
for consideration is as to what orders need to be
passed while disposing of the appeal. One cannot
dispute that even if the impugned order is upheld,
the writ petitioners (respondents herein) would still
not be entitled to continue any more on the post
because their respective terms have come to an end
by efflux of time during the pendency of this appeal.
It is also not in dispute that the said terms were not
extended by the State and rather curtailed before its
expiry period by issuing the cancellation order
which was impugned in the writ petition. It is also
not in dispute that if the cancellation order is
upheld, the question of granting any relief to
respondents would not arise.
12) Heard Mr. Kunal A. Cheema, learned Addl.
Government Pleader for the appellants and Mr. J.P.
Cama, learned senior counsel and Mr. Rahul
Chitnis, learned counsel for the respondents.
5
6
13) Learned counsel for the appellants supported
the cancellation order dated 28.08.2015 and
contended that keeping in view the law laid down by
this Court on the issue in question in several cases
such as Kumari Shrilekha Vidyarthi & Ors. Vs.
State of U.P. & Ors., (1991) 1 SCC 212 State of
U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714 and
State of U.P. & Ors. Vs. Ajay Kumar Sharma &
Anr., (2016) 15 SCC 289, the High Court should not
have quashed the cancellation order.
14) Learned counsel for the respondents, however,
urged that the cancellation order dated 28.08.2015
having been passed under Rule 30(5) by the State,
the same was rightly struck down by the High Court
as being stigmatic and punitive in nature.
15) Learned counsel in the alternative submitted
that due to stay operating against the respondents,
they could not work on their respective posts
though otherwise they were ready to discharge their
6
7
duties. It was, therefore, urged that the
respondents be paid their entire remuneration till
the expiry of their respective terms.
16) It was also his alternative submission that in
any event, the respondents be paid their
remuneration from the date of stay granted by this
Court (29.01.2016) till the date of expiry of their
respective terms.
17) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to dispose of the appeal as under.
18) Rules 30 (5) and (6) of the Rules read as under:
“30. Period of Appointment.
(5) A Law Officer shall be liable to be
removed from his office at any time, if
he is guilty of any act or conduct
which, in the opinion of Government, in
the Law and Judiciary Department, is
incompatible with his duties as such
Law Officer. The decision of
Government in the Law and Judiciary
Department in such cases shall be final.
(6) Notwithstanding anything contained in
sub-rules(2) and (3), but save as
otherwise provided in sub-rule(5), the
7
8
appointment of any Law Officer, which
is at the pleasure of the Government
may at any time, be terminated by
Government in the Law and Judiciary
Department by giving him one month’s
notice or, where any retainer is payable
to such Law Officer, be terminated
forthwith by paying him one month’s
retainer in lieu of such notice.”
19) Having regard to the background facts, nature
of controversy, the subsequent events and the
consequences which are likely to result due to
subsequent events occurring in the case, we
consider it just and proper and in the interest of
justice to modify the order of cancellation dated
28.08.2015 by treating the same to have been
passed under Rule 30(6) of the Rules. In other
words, the interest of justice would be fully met if
the cancellation order dated 28.08.2015 is held to
have been passed under to Rule 30(6).
20) Since we have modified the order dated
28.08.2015 by treating it to have been passed under
Rule 30(6), the State is directed to ensure
8
9
compliance of Rule 30(6) and accordingly pay one
month’s retainer in lieu of notice period to each
respondent as was fixed in their respective
appointment letters.
21) Let the amount be paid to each respondent
within 3 months from the date of receipt of this
order.
22) We also observe that the State would be free to
consider the cases of any of the respondents for
their appointment on any of the post in future, in
case, if the State so desires and while so
considering, the cancellation order dated
28.08.2015 originally passed by the State and now
modified by this Court including any observations
made by the High Court would not come in their
way.
23) With these observations and the directions,
this appeal stands finally disposed of leaving the
9
1
0
question of law raised by the parties in the appeal
open.
………...................................J.
[R.K. AGRAWAL]
…...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 05, 2017
10
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.11199 OF 2017
(Arising out of S.L.P.(C) No.2153 of 2016)
The State of Maharashtra
& Anr. ….Appellant(s)
VERSUS
Kishor M. Gadhave Patil & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 16.12.2015 passed by the High
Court of Judicature of Bombay Bench at
Aurangabad in Writ Petition No. 8951 of 2015
whereby the High Court allowed the writ petition
1
2
filed by the respondents herein and made the ‘Rule’
absolute.
3) The controversy involved in the appeal, which
due to subsequent events, remains confined to very
narrow issues surviving for consideration. However
to appreciate what is survived, few relevant facts
need mention below.
4) The appellants herein-State of Maharashtra
and Joint Secretary, Law & Judiciary Department
were the respondents whereas the respondent Nos.
1 to 15 herein were the writ petitioners before the
High Court in a writ petition out of which this
appeal arises.
5) The respondents (Total 15) are advocates by
profession and have been practicing in various
Courts including Bench of the High Court at
Aurangabad (MH). The respondents were appointed
by the State Government as Additional Government
Pleaders (Addl.GP)/Assistant Government
2
3
Pleaders(AGP))/Additional Public Prosecutors(APP)
for the Bench of the High Court at Aurangabad by
order dated 05.10.2013 (Annexure-P-1). Similar
orders of appointment were issued by the State on
different dates in relation to some respondents.
6) The respondents accepted their appointment
and started functioning by discharging their duties
as Addl.GP/AGP/APP in Courts in terms of their
appointment orders. However, by order dated
28.08.2015, the State Government cancelled the
appointments of all the respondents w.e.f
28.08.2015 by taking recourse to the powers under
Rule 30(5) of the Maharashtra Law Officers
(Appointments, Conditions of Service and
Remuneration) Rules 1984 (hereinafter referred to
as "the Rules").
7) The respondents, felt aggrieved of the order
dated 28.08.2015, challenged its legality and
3
4
correctness in the writ petition out of which this
appeal arises.
8) By impugned order, the High Court allowed
the respondents’ writ petition and quashed the
order of cancellation dated 28.08.2015 which has
given rise to filing of this appeal by way of special
leave by the State of Maharashtra.
9) By interim order dated 29.01.2016, this Court
stayed the operation of the impugned order of the
High Court. As a result, the cancellation order
dated 28.08.2015 continued to remain in operation
against the respondents.
10) It is pertinent to mention here, as stated by the
learned counsel appearing for the parties, that
during the pendency of the appeal, the term of the
respondents on their respective posts expired on
different dates such as, 05.06.2010, 09.06.2010,
16.08.2010, 05.10.2010, 09.10.2016 and
22.10.2016.
4
5
11) It is with this background, the question arises
for consideration is as to what orders need to be
passed while disposing of the appeal. One cannot
dispute that even if the impugned order is upheld,
the writ petitioners (respondents herein) would still
not be entitled to continue any more on the post
because their respective terms have come to an end
by efflux of time during the pendency of this appeal.
It is also not in dispute that the said terms were not
extended by the State and rather curtailed before its
expiry period by issuing the cancellation order
which was impugned in the writ petition. It is also
not in dispute that if the cancellation order is
upheld, the question of granting any relief to
respondents would not arise.
12) Heard Mr. Kunal A. Cheema, learned Addl.
Government Pleader for the appellants and Mr. J.P.
Cama, learned senior counsel and Mr. Rahul
Chitnis, learned counsel for the respondents.
5
6
13) Learned counsel for the appellants supported
the cancellation order dated 28.08.2015 and
contended that keeping in view the law laid down by
this Court on the issue in question in several cases
such as Kumari Shrilekha Vidyarthi & Ors. Vs.
State of U.P. & Ors., (1991) 1 SCC 212 State of
U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714 and
State of U.P. & Ors. Vs. Ajay Kumar Sharma &
Anr., (2016) 15 SCC 289, the High Court should not
have quashed the cancellation order.
14) Learned counsel for the respondents, however,
urged that the cancellation order dated 28.08.2015
having been passed under Rule 30(5) by the State,
the same was rightly struck down by the High Court
as being stigmatic and punitive in nature.
15) Learned counsel in the alternative submitted
that due to stay operating against the respondents,
they could not work on their respective posts
though otherwise they were ready to discharge their
6
7
duties. It was, therefore, urged that the
respondents be paid their entire remuneration till
the expiry of their respective terms.
16) It was also his alternative submission that in
any event, the respondents be paid their
remuneration from the date of stay granted by this
Court (29.01.2016) till the date of expiry of their
respective terms.
17) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to dispose of the appeal as under.
18) Rules 30 (5) and (6) of the Rules read as under:
“30. Period of Appointment.
(5) A Law Officer shall be liable to be
removed from his office at any time, if
he is guilty of any act or conduct
which, in the opinion of Government, in
the Law and Judiciary Department, is
incompatible with his duties as such
Law Officer. The decision of
Government in the Law and Judiciary
Department in such cases shall be final.
(6) Notwithstanding anything contained in
sub-rules(2) and (3), but save as
otherwise provided in sub-rule(5), the
7
8
appointment of any Law Officer, which
is at the pleasure of the Government
may at any time, be terminated by
Government in the Law and Judiciary
Department by giving him one month’s
notice or, where any retainer is payable
to such Law Officer, be terminated
forthwith by paying him one month’s
retainer in lieu of such notice.”
19) Having regard to the background facts, nature
of controversy, the subsequent events and the
consequences which are likely to result due to
subsequent events occurring in the case, we
consider it just and proper and in the interest of
justice to modify the order of cancellation dated
28.08.2015 by treating the same to have been
passed under Rule 30(6) of the Rules. In other
words, the interest of justice would be fully met if
the cancellation order dated 28.08.2015 is held to
have been passed under to Rule 30(6).
20) Since we have modified the order dated
28.08.2015 by treating it to have been passed under
Rule 30(6), the State is directed to ensure
8
9
compliance of Rule 30(6) and accordingly pay one
month’s retainer in lieu of notice period to each
respondent as was fixed in their respective
appointment letters.
21) Let the amount be paid to each respondent
within 3 months from the date of receipt of this
order.
22) We also observe that the State would be free to
consider the cases of any of the respondents for
their appointment on any of the post in future, in
case, if the State so desires and while so
considering, the cancellation order dated
28.08.2015 originally passed by the State and now
modified by this Court including any observations
made by the High Court would not come in their
way.
23) With these observations and the directions,
this appeal stands finally disposed of leaving the
9
1
0
question of law raised by the parties in the appeal
open.
………...................................J.
[R.K. AGRAWAL]
…...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 05, 2017
10
