Promotion in service = It is not in dispute that at the time of promotion of Class-II officers including Shri R.K. Khare to Class-I posts with effect from 16.11.1989 by the Government of Uttar Pradesh, the case of respondent No.1 was not considered because of the adverse remarks recorded in his Annual Confidential Report and the punishment imposed vide order dated 23.1.1999. Once the order of punishment was set aside, respondent No.1 became entitled to be considered for promotion to Class-I post with effect from 16.11.1989. That exercise could have been undertaken only by the Government of Uttar Pradesh and not by the State of Uttaranchal (now the State of Uttarakhand), which was formed on 9.11.2000. Therefore, the High Court of Uttarakhand, which too came into existence with effect from 9.11.2000 did not have the jurisdiction to entertain the writ petition filed by respondent No.1 for issue of a mandamus to the State Government to promote him to Class-I post with effect from 16.11.1989, more so because the issues raised in the writ petition involved examination of the legality of the decision taken by the Government of Uttar Pradesh to promote Shri R.K. Khare with effect from 16.11.1989 and other officers, who were promoted to Class-I post vide order dated 22.1.2001 with retrospective effect. It appears to us that the counsel, who appeared on behalf of the State of Uttarakhand and the Director of Industries did not draw the attention of the High Court that it was not competent to issue direction for promotion of respondent No.1 with effect from a date prior to formation of the new State, and that too, without hearing the State of Uttar Pradesh and this is the reason why the High Court did not examine the issue of its jurisdiction to entertain the prayer made by respondent No.1. 12. In view of the above, we hold that the writ petition filed by respondent No.1 in 2008 in the Uttarakhand High Court claiming retrospective promotion to Class-I post with effect from 16.11.1989 was misconceived and the High Court committed jurisdictional error by issuing direction for his promotion to the post of General Manager with effect from 16.11.1989 and for consideration of his case for promotion to the higher posts with effect from the date of promotion of his so called juniors. 13. In the result, the appeals are allowed, the impugned order is set aside and the writ petition filed by respondent No.1 is dismissed. 14. However, it is made clear that this Court has not expressed any opinion on the merits of the entitlement of respondent No.1 to claim promotion to Class-I post with retrospective effect and, if so advised, he may avail appropriate remedy by filing a petition in the Allahabad High Court. It is also made clear that we have not expressed any opinion on the legality or otherwise of order dated 17.1.2005 issued by the Government of Uttarakhand withdrawing the order of punishment passed against respondent No.1 and the writ petition, if any, pending before the Uttarakhand High Court against that order shall be decided without being influenced by the proceedings of these appeals.

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 3984 OF 2012




      State of Uttarakhand and another                   … Appellants
                                   versus
      Umakant Joshi                                      … Respondent(s)
                                    with


                        CIVIL APPEAL NO. 3982 OF 2012
      Sudhir     Chandra     Nautiyal                                      …
      Appellant(s)
                                   versus
      Umakant Joshi and others                           … Respondents


                        CIVIL APPEAL NO. 3983 OF 2012


      Surendra Singh Rawat                               … Appellant(s)
                                   versus
      Umakant Joshi and others                           … Respondents




                               J U D G M E N T
      G. S. Singhvi, J.
      1.    Whether the Uttarakhand High Court  could  ordain  promotion  of
      respondent No.1 – Umakant Joshi to the post of  General  Manager  with
      effect from 16.11.1989, i.e., prior  to  formation  of  the  State  of
      Uttaranchal (now known as the State of Uttarakhand) with the direction
      that he shall be considered for promotion to  the  higher  posts  with
      effect from the dates persons junior  to  him  were  promoted  is  the
      question which arises for consideration in these appeals, one of which
      has been filed by  the  State  of  Uttarakhand  and  the  Director  of
      Industries, Dehradun and the other  two  have  been  filed  by  Sudhir
      Chandra Nautiyal (hereinafter  described  as,  ‘Appellant  No.1’)  and
      Surendra Singh Rawat  (hereinafter  described  as,  ‘Appellant  No.2’)
      respectively against order dated 4.6.2010 passed by the Division Bench
      of that High Court in Writ Petition No.324 of 2008.


      2.    The service profile of Appellant No.1:
      2.1   On being selected by the Uttar Pradesh Public Service Commission
      (for short, ‘the Commission’), appellant No.1 was appointed to Class-I
      post in the Industries Department of the Government of  Uttar  Pradesh
      with effect from 7.2.1994.
      2.2   After formation of the State of Uttaranchal, in terms of Section
      3 of the Uttar Pradesh  Reorganisation  Act,  2000  (for  short,  ‘the
      Act’), the Central Government  issued  order  dated  20.12.2000  under
      Section 73 thereof and tentatively allotted appellant No.1 along  with
      large number of other officers/employees of the State of Uttar Pradesh
      including respondent No.1 to the new State of Uttaranchal.  They  were
      finally allotted to the new State vide order dated 17.5.2006.
      2.3   Appellant No.1 was promoted as Joint Director of  Industries  on
      ad-hoc basis in the State of Uttarakhand with effect  from  17.1.2004.
      He was regularly promoted on that post on 23.7.2007.  After two years,
      he was promoted as Additional Director, Industries.


      3.    The service profile of Appellant No.2:
      3.1    Appellant  No.2  was   appointed   in   the   U.P.   Industries
      (Subordinate) Service in 1979.  He opted for Hill Sub-Cadre formed  by
      the State of Uttar Pradesh in 1992.  His  name  was  included  in  the
      separate seniority list of the officers of that cadre and on formation
      of the State of Uttaranchal, he was treated as an employee of the  new
      State.
      3.2   Appellant No.2 was promoted to U. P. Industries Class-I  Service
      in  1996.    He  was  further  promoted  to   the   post   of   Deputy
      Director/General Manager (Grade-I) with effect from 19.1.2004.


      4.    The service profile of Respondent No.1:
      4.1   In response to an advertisement issued by the Commission in 1981
      for recruitment to Class-II posts in the pay scales of Rs.550-1200 and
      Rs.450-900,  respondent  No.1  applied  for  the   post   of   Manager
      (Marketing) in the pay scale of Rs.550 - 1200.  He was selected by the
      Commission for that post but was offered appointment on the lower post
      of Manager, Handloom in the pay scale of Rs.450-900.
      4.2   After joining the service, respondent No.1 filed  Writ  Petition
      No.9728 of 1986 in the Allahabad High Court and prayed for issue of  a
      mandamus for his appointment on the post for which he had applied.  In
      compliance of an interim order passed by the High Court  on  2.3.1987,
      respondent No.1 was appointed as Manager (Marketing) with effect  from
      the date of initial appointment, i.e. 23.4.1984.   The  writ  petition
      was finally allowed by the High Court vide order dated 1.12.1995 and a
      direction was issued to the State  Government  to  give  consequential
      benefits to respondent No.1.  Thereafter, seniority of respondent No.1
      was fixed among Class-II officers at serial No.48A.
      4.3   While he was working as Manager (Marketing) in  the  Directorate
      of Industries, Uttar Pradesh, respondent No.1 earned  adverse  remarks
      in the Annual Confidential Reports for  the  years  1987-88,  1988-89,
      1989-90 and 1991-92. Four departmental inquiries were  also  initiated
      against respondent No.1 between  July  1996  and  March  1997.   These
      inquiries culminated in the issuance of order dated 23.1.1999  whereby
      punishment of reduction to the minimum of the pay scale was imposed on
      respondent No.1.  As a sequel to this, an adverse entry  was  made  in
      the Annual Confidential Report of respondent No.1 for the year 1995-96
      casting reflection on his integrity.
      4.4   Respondent No.1 submitted representation dated 14.1.2000 to  the
      State  Government  for  reconsideration/review   of   the   order   of
      punishment.  He also filed writ petition in the Allahabad  High  Court
      for quashing the order of punishment.
      4.5    While  the  representation  and  the  writ  petition  filed  by
      respondent No.1 were pending consideration, Parliament enacted the Act
      and the Central Government allotted the services of respondent No.1 to
      the new State.  Thereafter, respondent No. 1 made representation dated
      23.12.2000 to the Government of the new State for review of the  order
      of punishment.
      4.6   The Allahabad High Court transferred the pending  writ  petition
      to the High Court of Uttaranchal (now Uttarakhand), which disposed  of
      the same by relegating respondent No.1 to the  alternative  remedy  of
      filing an application before the State Public Services  Tribunal  (for
      short, ‘the Tribunal’).
      4.7   During the pendency of  the  matter  before  the  Tribunal,  the
      Government of  Uttarakhand  considered  the  representations  made  by
      respondent  No.1  and  proposed  that  the  punishment  order  may  be
      withdrawn.   The  Governor  of  Uttarakhand  approved  the   proposal.
      Thereafter, the State Government issued order dated  17.1.2005,  which
      was described as an Office Memorandum for withdrawal of the  order  of
      punishment.  The relevant portion of that order is extracted below:


                             “Office Memorandum


           After due consideration of the representation  dated  14.01.2000
           and 23.12.2000 submitted by  Sh.  Uma  Kant  Joshi  against  the
           punishment given  vide  Office  Memorandum  No.4482/181-81(R)/96
           dated 23.01.1999 by Secretary, Small Scale  Industry  Government
           of U.P. to Sh. Uma Kant Joshi the then Manager  (Marketing   and
           Economic  Survey)  District  Industry  Centre,  Kotdwar,   Pauri
           Garhwal, present incharge  General  Manager,  District  Industry
           Centre, Udhamsingh Nagar, the Governor hereby  accords  approval
           to withdraw the said punishment order dated 23.01.1999 upon  its
           merit.
                                                                        Sd/-
                                                              Sanjeev Chopra
                                                                  Secretary”


      4.8   After about 7 months, the State Government  issued  order  dated
      11.8.2005 and expunged  the  adverse  entry  recorded  in  the  Annual
      Confidential Report of respondent No.1 for the year 1995-96.
      4.9   The Tribunal took cognizance of the  aforementioned  two  orders
      and disposed of the petition filed by respondent No.1 as  infructuous.
      Soon thereafter, he submitted a representation to  the  Government  of
      Uttar Pradesh for promotion to the  post  of  Deputy  Director/General
      Manager, Industries with effect from  16.11.1989,  i.e.  the  date  on
      which persons junior to him were promoted.  The same was forwarded  to
      the Government of Uttarakhand, which issued an order dated  11.10.2006
      and promoted respondent No.1 to Class-I post.  However, his prayer for
      retrospective promotion was not entertained.


      5.    After about 2 years, respondent No.1 filed Writ Petition  No.324
      of 2008 and prayed for issue of a direction to the respondents  (State
      of Uttarakhand and Director, Directorate of Industries)  to  give  him
      the benefit of the time scale and  the  selection  grade  respectively
      with effect from the date of  completion  of  8  years  and  14  years
      service and notional promotion to Class-I post from 1989.  In  support
      of his claim, respondent No.1 relied upon the orders passed in  favour
      of Shri R.K. Khare, who was promoted to Class-I post with effect  from
      16.11.1989.  He also relied upon orders dated 22.1.2001 passed by  the
      Governments of the States of Uttar  Pradesh  and  Uttarakhand  whereby
      large number of officers including Shri S.C. Chandola, who were senior
      to Shri R.K. Khare were promoted to Class-I  posts  with  effect  from
      16.11.1989.


      6.    In  the  reply  affidavit  filed  on  behalf  of  the  State  of
      Uttarakhand and the Director of Industries, an objection was taken  to
      the maintainability  of  the  writ  petition  on  the  ground  of  non
      impleadment of the State of Uttar Pradesh  as  party  respondent.   On
      merits, it was pleaded that respondent No.1 cannot claim  parity  with
      Shri R.K. Khare because the latter was not allotted to  the  State  of
      Uttarakhand.  As regards Shri S.C. Chandola, it was  averred  that  he
      was appointed on  a  Class-II  post  on  16.9.1976  and  was  assigned
      seniority at serial No.16, whereas respondent No.1  was  appointed  on
      23.4.1984 and his seniority was fixed at serial No.49.  It was further
      averred that at the time of allotment to  the  State  of  Uttarakhand,
      Shri S.C. Chandola was holding  Class-I  post  in  the  pay  scale  of
      Rs.10,000–15,200, whereas respondent No.1 was holding a  post  in  the
      pay scale of Rs.8,000-13,500.


      7.    The Division Bench of the High Court took cognizance  of  orders
      dated 17.1.2005  and  11.8.2005  and  held  that  once  the  order  of
      punishment was withdrawn and there was  no  adverse  material  in  the
      record of  respondent No.1, he was entitled to be promoted to  Class-I
      post with effect  from  the  date  his  junior  Shri  R.K.  Khare  was
      promoted.   The Division Bench accordingly  directed  that  respondent
      No.1 be promoted to the post  of  General  Manager  with  effect  from
      16.11.1989 and his case be considered  for  promotion  to  the  higher
      posts from the dates persons junior to him were promoted.


      8.    Before proceeding further, we may notice some other facts  which
      have bearing on the decision of these appeals.
      8.1   In exercise of the powers conferred upon it by Rules18 and 39 to
      41 of the Civil Services Classification,  Control  and  Appeal  Rules,
      1930, the Government of United Province had made the United  Provinces
      Industries Service Class-I Rules, 1937 for regulating  appointment  to
      the  posts  of  Director/Deputy  Director,  Member,  Harcourt   Butler
      Technological  Institute,  Heads  of  Sections  of   Harcourt   Butler
      Technological Institute and Glass Technologist.   After  independence,
      the Governor of  Uttar  Pradesh  made  the  Uttar  Pradesh  Industries
      Service Rules, 1993 (for  short,  ‘the  1993  Rules’)  for  regulating
      recruitment on various posts which were  categorized  in  two  groups,
      i.e., Group ‘A’ and Group ‘B’.  Prior to this, the Government of Uttar
      Pradesh had issued G.O. dated 4.2.1989 in terms of  which  only  those
      members in the feeder cadre were treated eligible  for  promotion  who
      had completed 7 years’ service as on 1st July.  By another G.O. issued
      on 31.3.1993, the State Government decided that time  scale  shall  be
      granted to an employee on completion of 8 years’ satisfactory service.
      8.2   By virtue of Section 3 of the Act, the new State of  Uttaranchal
      was formed.  Sections 73 and 74 of the Act, which relate  to  services
      other than All India Services read as under:
           “73.  Provisions relating to other services – (1)  Every  person
           who  immediately  before  the  appointed  day  is   serving   in
           connection with the affairs  of  the  existing  State  of  Uttar
           Pradesh shall, on and from that day  provisionally  continue  to
           serve in connection with the  affairs  of  the  State  of  Uttar
           Pradesh unless he is required, by general or  special  order  of
           the Central Government to serve provisionally in connection with
           the affairs of the State of Uttaranchal:


           Provided that every  direction  under  this  sub-section  issued
           after the expiry of a period of one year from the appointed  day
           shall be issued with the consultation of the Governments of  the
           successor States.


           (2) As soon as may be  after  the  appointed  day,  the  Central
           Government shall, by general or  special  order,  determine  the
           successor State to which every person referred to in sub-section
           (1) shall be finally allotted for  service  and  the  date  with
           effect from which such allotment shall take effect or be  deemed
           to have taken effect.


           (3) Every person who is finally allotted under the provisions of
           sub-section (2) to a successor State shall, if he is not already
           serving therein be made available for serving in  the  successor
           State  from  such  date  as  may  be  agreed  upon  between  the
           Governments concerned or in default of such agreement, as may be
           determined by the Central Government.


           74. Other provisions relating to Services – (1) Nothing in  this
           section or in Section 73 shall be deemed to affect on  or  after
           the appointed day, the operation of the provisions of Chapter  I
           of Part XIV of the Constitution in relation to determination  of
           he conditions of service of persons serving in  connection  with
           the affairs of the Union or any State:


           Provided that the conditions of service  applicable  immediately
           before the appointed day in the case of  any  person  deemed  to
           have been allocated to the State of  Uttar  Pradesh  or  to  the
           State of  Uttaranchal  the  previous  approval  of  the  Central
           Government  under  Section  73  shall  not  be  varied  to   his
           disadvantage except with the previous approval  of  the  Central
           Government.


           (2) All services prior  to  the  appointed  day  rendered  by  a
           person,-


           (a) If he is deemed to have been allocated to  any  State  under
           Section 73, shall be deemed to have been rendered in  connection
           with the affairs of that State;


           (b) If he is deemed to have  been  allocated  to  the  Union  in
           connection with the administration of the Uttaranchal, shall  be
           deemed to have been rendered in connection with the  affairs  of
           the  Union,  for  the  purposes  of  the  rules  regulating  his
           conditions of service.


           (3) The provisions of Section 73, shall not apply in relation to
           members of any All-India Service.”

      8.3   On 7.11.2002, adoption and modification orders  were  issued  in
      relation to Uttar Pradesh Industries Service  Rules,  1993  and  Uttar
      Pradesh Industries (Senior Group ‘A’) Service Rules, 1991.
      8.4   On the recommendations of the Commission, Shri  R.K.  Khare  was
      appointed as Survey Officer in the pay scale of Rs.450-950 with effect
      from 27.12.1974.  He was appointed as  Assistant  Development  Officer
      (Small Engineering Industries) with effect from 3.11.1976 in  the  pay
      scale of  Rs.550-1200  on  ad  hoc  basis.   Subsequently,  the  State
      Government issued G.O. dated 11.10.1977 and conveyed sanction  of  the
      Governor  to  the  appointment  of  Shri  R.K.  Khare   as   Assistant
      Development Officer (SEI).  On 22.3.1980, he was appointed as  ad  hoc
      Class-I  officer  in  the  pay  scale  of  Rs.800-1450.   The  ad  hoc
      appointment of Shri  R.K.  Khare  was  regularized  with  effect  from
      16.11.1989  under  the  Uttar  Pradesh  Regularization   of   Ad   hoc
      Appointments (on Posts within purview of  Public  Service  Commission)
      Rules, 1988.
      8.5   By an order dated 22.1.2001, the  Government  of  Uttar  Pradesh
      promoted 19 Class-II officers, who were senior to Shri R.K.  Khare  to
      Class-I posts on notional basis with effect from 16.11.1989.


      9.    S/Shri J.L. Gupta and Subodh Markandeya, learned senior  counsel
      appearing for appellant Nos. 1  and  2  and  Ms.  Rachana  Srivastava,
      learned counsel appearing for the State of Uttarakhand argued that the
      impugned order is liable to be set aside because while granting relief
      to respondent No.1, the High Court  completely  ignored  that  he  was
      guilty of laches and that the persons who were going to  be  adversely
      affected by retrospective promotion of respondent No.1  had  not  been
      impleaded as party respondents.  Learned counsel further  argued  that
      the Uttarakhand High Court did not have  the  jurisdiction  to  direct
      promotion of respondent No.1 to Class-I post with effect from  a  date
      prior to formation of the new State and even the Allahabad High  Court
      could not have issued a mandamus for promotion of respondent  No.1  de
      hors his service record.  Learned counsel emphasized that in  exercise
      of power under Article 226 of the Constitution, the High Court cannot,
      except in exceptional circumstances, issue direction for promotion  of
      an officer/official and the case of respondent No.1 did  not  fall  in
      that category.  Ms. Srivastava pointed out that even though Shri  R.K.
      Khare was junior to respondent No.1 in the seniority list of  Class-II
      officers, his promotion to Class-I post with  effect  from  16.11.1989
      did not give a cause to respondent No.1 to seek  intervention  of  the
      Uttarakhand High Court  for  promotion  with  effect  from  that  date
      because till then, he continued to be an  employee  of  the  State  of
      Uttar Pradesh.


      10.    Shri  Pramod  Swarup,  learned  senior  counsel  appearing  for
      respondent No.1 defended the directions given by the  High  Court  and
      argued that once the order of punishment was withdrawn and the remarks
      recorded in the Annual Confidential Report of respondent No.1  casting
      adverse reflection on his integrity were expunged, he became  entitled
      to be considered for promotion to Class-I post with effect from a date
      persons junior to  him,  namely,  Shri  R.K.  Khare  and  others  were
      promoted.  Learned senior counsel emphasized that after having  issued
      order dated 22.1.2001 for promotion of Shri S.C. Chandola  to  Class-I
      post with effect from 16.11.1989, it is not open to the Government  of
      Uttarakhand  to  contend  that  the  High  Court  did  not  have   the
      jurisdiction  to  issue  direction  for  retrospective  promotion   of
      respondent No.1.


      11.   We have considered the respective submissions.   It  is  not  in
      dispute that at the time of promotion of Class-II  officers  including
      Shri R.K. Khare to Class-I posts with effect from  16.11.1989  by  the
      Government of Uttar Pradesh, the  case  of  respondent  No.1  was  not
      considered because of the  adverse  remarks  recorded  in  his  Annual
      Confidential Report  and  the  punishment  imposed  vide  order  dated
      23.1.1999.  Once the order of punishment  was  set  aside,  respondent
      No.1 became entitled to be considered for promotion  to  Class-I  post
      with effect from 16.11.1989.  That exercise could have been undertaken
      only by the Government of Uttar  Pradesh  and  not  by  the  State  of
      Uttaranchal (now the  State  of  Uttarakhand),  which  was  formed  on
      9.11.2000.  Therefore, the High Court of Uttarakhand, which  too  came
      into  existence  with  effect  from  9.11.2000  did   not   have   the
      jurisdiction to entertain the writ petition filed by  respondent  No.1
      for issue of a mandamus to the State  Government  to  promote  him  to
      Class-I post with effect from 16.11.1989, more so because  the  issues
      raised in the writ petition involved examination of  the  legality  of
      the decision taken by the Government of Uttar Pradesh to promote  Shri
      R.K. Khare with effect from 16.11.1989 and other  officers,  who  were
      promoted to Class-I post vide order dated 22.1.2001 with retrospective
      effect.  It appears to us that the counsel, who appeared on behalf  of
      the State of Uttarakhand and the Director of Industries did  not  draw
      the attention of the High Court that it was  not  competent  to  issue
      direction for promotion of respondent No.1 with  effect  from  a  date
      prior to formation of the new State, and that too, without hearing the
      State of Uttar Pradesh and this is the reason why the High  Court  did
      not examine the issue of its jurisdiction to entertain the prayer made
      by respondent No.1.


      12.   In view of the above, we hold that the writ  petition  filed  by
      respondent No.1  in  2008  in  the  Uttarakhand  High  Court  claiming
      retrospective promotion to Class-I post with  effect  from  16.11.1989
      was misconceived and the High Court committed jurisdictional error  by
      issuing direction for his promotion to the  post  of  General  Manager
      with effect from 16.11.1989 and for  consideration  of  his  case  for
      promotion to the higher posts with effect from the date  of  promotion
      of his so called juniors.


      13.   In the result, the appeals are allowed, the  impugned  order  is
      set aside and the writ petition filed by respondent No.1 is dismissed.




      14.   However, it is made clear that this Court has not expressed  any
      opinion on the merits of the entitlement of respondent No.1  to  claim
      promotion to  Class-I  post  with  retrospective  effect  and,  if  so
      advised, he may avail appropriate remedy by filing a petition  in  the
      Allahabad High Court.   It  is  also  made  clear  that  we  have  not
      expressed any opinion on the legality  or  otherwise  of  order  dated
      17.1.2005 issued by the  Government  of  Uttarakhand  withdrawing  the
      order of punishment  passed  against  respondent  No.1  and  the  writ
      petition, if any, pending before the Uttarakhand  High  Court  against
      that  order  shall  be  decided  without  being  influenced   by   the
      proceedings of these appeals.




                                                       …...……..….………………….…J.
                                         [G.S. Singhvi]




                                                         …………..….………………….…J.
                                        [Sudhansu Jyoti Mukhopadhaya]
      New Delhi,
      May 28, 2012.
-----------------------
15

Compensate ground appointment= Under the scheme, vacancies could be filled up on compassionate grounds only upto 5% of the cadre strength falling under direct recruitment quota during a year in Group ‘C ' and 'D ' posts. The scheme further lays down that the total income of the family from all sources including terminal benefits after death, excluding G.P.F., should be taken into consideration. So far as the post of Group 'C' is concerned, the scheme provides that in case the family gets more than Rs.3 lakhs, the dependent of the deceased would not be eligible for employment on compassionate ground.

?                                           REPORTABLE




                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NO(s). 6224 OF 2008




      UNION OF INDIA & ANR.                   Appellant (s)


                                      VERSUS


      SHASHANK GOSWAMI & ANR.                 Respondent(s)




                                    ORDER




      1.    This appeal has been preferred against the impugned judgment and
      order dated 23.5.2006 passed  by  the  High  Court  of  Judicature  at
      Allahabad in C.M.W.P. No.28535 of 2006 directing the appellants herein
      to reconsider application of respondent no.1 on compassionate grounds.




      2.    Facts and circumstances giving rise to this appeal are that  one
      Anand Kishore Gautam working as Senior Accountant in the office of the
      Accountant General, Allahabad died on 19.3.2001  in  harness,  leaving
      behind two sons aged about 20 and 19 years and a daughter, aged  about
      17 years and Smt. Rashmi Gautam, ?his widow.
      3.    Respondent  No.  1  filed  an  application  for  appointment  on
      compassionate grounds, which came to be rejected by the appellants  on
      28.1.2004 in  view  of  the  prevailing  scheme  for  appointments  on
      compassionate grounds. Under the scheme, vacancies could be filled  up
      on compassionate grounds only upto 5% of the  cadre  strength  falling
      under direct recruitment quota during a year in Group ‘C '  and  'D  '
      posts.
            The scheme further lays down that the total income of the family
      from all sources including terminal benefits  after  death,  excluding
      G.P.F., should be taken into consideration. So  far  as  the  post  of
      Group 'C' is concerned, the scheme provides that in  case  the  family
      gets more than Rs.3 lakhs, the dependent of the deceased would not  be
      eligible for employment on compassionate ground.


      4.    Respondent No.1 could not be offered appointment on  the  ground
      that excluding G.P.F.  amount,  his  family  had  received  a  sum  of
      Rs.4,40,908/- in addition to family pension of  Rs.3,100/-  per  month
      granted to Mrs. Rashmi Gautam. She was entitled to get the said family
      pension at least for seven years and thereafter,  the  family  pension
      would be Rs.1,860/- per month plus ?other reliefs admissible on pension
      .
      5.    Aggrieved, respondent No.1 challenged the order dated  28.1.2004
      rejecting his claim, before Central Administrative Tribunal, Allahabad
      vide Original Application No. 728 of 2004,  wherein  the  Tribunal  by
      judgment and order dated 7.12.2005 quashed the order  dated  28.1.2004
      and  directed  the  appellants  herein  to  reconsider  the  case   of
      respondent No.1.


      6.    Aggrieved by the order of the Tribunal, the appellants preferred
      CMWP No.28535 of 2006 before the High Court which has  been  dismissed
      vide impugned judgment. Hence this appeal.


      7.    We have heard Mr. S.P. Singh, learned senior  counsel  appearing
      for the appellants.
           In spite of notice, the respondents did  not  enter  appearance.
      The appeal is pending for the last four years before this Court.


      8.     Learned  senior  counsel  appearing  for  the  appellants   has
      submitted that the appellants had to  consider  the  applications  for
      employment on compassionate grounds only  within  the  parameters  and
      terms and conditions incorporated in the scheme  laid  down  for  that
      purpose. The scheme makes a person ineligible for the  post  in  Group
      'C', in case, on the ?death of the incumbent on the  post,  the  family
      gets retiral benefits/terminal benefits exceeding Rs. 3 lakhs.
      9.    There can be no quarrel to the settled  legal  proposition  that
      the claim for appointment on compassionate  ground  is  based  on  the
      premises that the applicant was dependent on  the  deceased  employee.
      Strictly, such a claim cannot be upheld on the touchstone  of  Article
      14 or 16  of  the  Constitution  of  India.  However,  such  claim  is
      considered as reasonable and permissible on the basis of sudden crisis
      occurring in the family of such employee who has served the State  and
      dies while in service. Appointment on compassionate ground  cannot  be
      claimed as a matter of right. As a  rule  public  service  appointment
      should  be  made  strictly  on  the  basis  of  open   invitation   of
      applications and merit. The appointment on compassionate ground is not
      another source of recruitment but merely an exception to the aforesaid
      requirement taking into consideration the fact of  the  death  of  the
      employee while in service leaving his  family  without  any  means  of
      livelihood. In such cases the object is to enable the  family  to  get
      over sudden financial crisis and not to confer a status on the family.
       Thus, applicant cannot claim appointment in a particular  class/group
      of post.  Appointments on compassionate ground  have  to  be  made  in
      accordance with the rules, regulations or administrative  instructions
      taking into consideration the financial condition of the family of the
      deceased.
      10.   This Court in Govind Prakash Verma v. Life Insurance Corporation
      of India & Ors., (2005) 10 SCC 289 while dealing with a similar  issue
      i.e. whether payment of terminal/retiral benefits to the family can be
      taken into consideration, held as under:
                 “In our view, it was wholly irrelevant for the departmental
                 authorities ….. to take into consideration the amount which
                 was being paid as  family  pension  to  the  widow  of  the
                 deceased ….. and other amounts paid on account of  terminal
                 benefits under the Rules. .  …..  Therefore,  compassionate
                 appointment cannot be refused on the ground that any member
                 of the family received  the  amount  admissible  under  the
                 Rules.”




      11.   This Court in Punjab National  Bank  &  Ors.  V.  Ashwini  Kumar
      Taneja, (2004) 7 SCC 265, placing reliance upon the  earlier  judgment
      in General Manager (D&PB) & Ors. V. Kunti Tiwari & Anr., (2004) 7  SCC
      271, held that compassionate appointment has to be made in  accordance
      with the Rules, Regulations or administrative instructions taking into
      consideration the financial condition of the family of  the  deceased.
      Whereas the scheme provides that in case the family  of  the  deceased
      gets the retrial/ terminal benefits exceeding  a  particular  ceiling,
      the dependant of such deceased employee, would  not  be  eligible  for
      compassionate appointment.
      12.   In Mumtaz YunusMulani (Smt.) v. State  of  Maharashtra  &  Ors.,
      (2008) 11 SCC 384, this Court examined  the  scope  of  employment  on
      compassionate ground in a similar scheme making the  dependant  of  an
      employee ineligible for the post in case the family receives terminal/
      retiral benefits above the sealing limit and held that the judgment in
      Govind Prakash (supra) had been decided  without  considering  earlier
      judgments which were binding on the Bench.   The  Court  further  held
      that that the appointment has to be made considering the terms of  the
      scheme and in case the scheme lays down a criterion that if the family
      of the deceased employee gets a particular amount as  retiral/terminal
      benefits, dependent of the deceased employee  would  not  be  eligible
      for employment on compassionate grounds.


      13.   In the instant case,  office  of  the  Comptroller  and  Auditor
      General  of  India,  New  Delhi  issued  a  Circular  dated  19.2.2003
      explaining the scope of such appointments.  Relevant part of the  same
      reads as under:
                 “With a view to bring uniformity in our  offices  regarding
                 parameters for compassionate appointment of a family member
                 in the case of death of a government servant in harness, it
                 has been decided that the total income of the  family  from
                 all  sources  including  terminal  benefits  after   death,
                 excluding G.P.F., should be taken  into  account.   If  the
                 resultant computation works out to a figure less  than  the
                 parameters given below such cases  can  be  considered  for
                 compassionate appointment subject   to  fulfilment  of  all
                 other conditions.  The limits are given below:
                       Group ‘B’ Rs. Five lakhs
                       Group ‘C’ Rs. Three lakhs
                       Group ‘D’ Rs. Two lakhs.”


                       …….




      14.   The case of the respondent was rejected  by  the  appellants  in
      view of the fact that the family of the deceased Anand Kishore  Gautam
      had been given the following terminal benefit excluding the G.P.F.
            1.    DCRG             Rs.2,48,248.00
            2.    Leave Encashment         Rs.88,660.00
            3.    CGEIS                    Rs.44,000.00
            4.    DLIS                     Rs.60,000.00
                                   Total:    Rs.4,40,908.00
            In addition to above, family pension @ 3100/- per month has been
      authorised to  Smt.  Rashmi  Gautam  for  a  period  of  7  years  and
      thereafter @ 1860/- per month plus admissible relief on pension.


      15.   In view of the fact that,  in  the  instant  case  the  retiral/
      terminal benefits have been received  by  the  family  exceeding  Rs.3
      lakhs, respondent No.1 is not eligible to be considered for the  Group
      'C' post.


      16.   In view of the above, the appeal succeeds and is allowed.   The
      impugned judgments/orders stand set aside.






                                       ..……………………….J.
                                       (Dr. B.S. CHAUHAN)




                                        .………………………..J.
                                         (DIPAK MISRA)
      New Delhi,
      May 23, 2012

Failure of prosecution that the deceased died by consuming pesticide tablets committed suicide and further a demand for money for establishing tailoring shop is not amounts to dowry demands=there was a dowry demand by the appellant and for that purpose the deceased Indro had been ill-treated to the extent that she had to take a drastic step of committing suicide. 12. This Court in Appasaheb v. State of Maharasthra, (2007) 1 SCC 721, while dealing with the similar issue and definition of the word `dowry’ held as under: “A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.” 13. The aforesaid judgment was reconsidered by this Court in Bachni Devi v. State of Maharashtra, (2011) 4 SCC 427, wherein this Court held that the aforesaid judgment does not lay down a law of universal application. Each case has to be decided on its own facts and merit. If a demand for property or valuable security, directly or indirectly, has nexus with marriage, such demand would constitute demand for dowry. The cause of raising of such demand remains immaterial. 14. In view of above, we have to examine as to whether the demand by the appellant for establishment of his tailoring business could be held to be a demand for dowry and further whether for that demand, the ill- treatment given by the appellant to his wife was so grave that she had been driven to the extent that she has to commit suicide. The prosecution case has been that Indro, deceased, committed suicide by taking pills/poison. There is ample evidence on record and it has specifically been mentioned by the prosecution witnesses, particularly, Jiwan (PW.1), Fateh Singh (PW.3) and S.I., Inder Lal, I.O., (PW.6), that some broken pieces of bangles had been collected by the I.O. from the place of occurrence and broken bones and articles were collected from the cremation site and sent for chemical analysis to Forensic Science Laboratory. Unfortunately, none of the courts below has taken note of the FSL report though the documents had been marked as Ext.PH and Ext. PH1. The first document is report No. FSL(H) dated 29.5.1990 by the Forensic Science Laboratory, Haryana, Madhuban, Karnal, wherein the result of examination of bones and ashes is as under: Ext.1 – some burnt bones alongwith ash (Approximately 1 Kg.) Result of the examination – no common metallic poison could be detected in Ext. 1. Ext. PH1 dated 16.8.1989 revealed that the fragments of bones in Ext. PH1 were identified that they belonged to human individual. The aforesaid reports do not support the case of the prosecution, rather leans towards the defence taken by the appellant. 15. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well-settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Talevar & Anr., AIR 2011 SC 2271; and Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr., (2012) 4 SCC 722). 16. In view of above, we are of the considered opinion that in the instant case there had been major improvements/embellishments in the prosecution case and demand of Rs.10,000/- by the appellant does not find mention in the statements under Section 161 Cr.P.C. More so, even if such demand was there, it may not necessarily be a demand of dowry. Further, the chemical analysis report falsifies the theory of suicide by deceased taking any pills. In such a fact-situation, the defence taken by the appellant in his statement under Section 313 Cr.P.C. could be plausible. Thus, appeal succeeds and is allowed. The appellant is given the benefit of doubt and the impugned judgment of the High Court dated 11.1.2007 is set aside. The appellant is acquitted of all the charges.

?                                             REPORTABLE




                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.878 of 2010






    Rohtash                                                   …..Appellant


                                   Versus


    State of Haryana                                             …..
    Respondent








                                  JUDGMENT


    Dr. B.S. CHAUHAN, J.


    1.      This criminal appeal has been filed against  the  judgment  and
    order dated 11.1.2007 passed by the High Court of Punjab &  Haryana  at
    Chandigarh in Criminal Appeal No. 146-DB  of  1994,  wherein  the  High
    Court has reversed the judgment and order  of  the  Sessions  Court  in
    Session Case No. 44 of 1989 dated 3.8.1993, by which the appellant  has
    been acquitted of the charges under Sections 304-B  and  498-A  of  the
    Indian Penal Code, 1860 (hereinafter referred as `IPC’).


    2.      Facts and circumstances giving rise to this appeal are that:
    A.      On 4.7.1989  at  8.00  p.m.,  Jiwan  (PW.1)  made  a  statement
    (Ext.PC) before the police at Rohtak Chowk,  Kharkohda  to  the  effect
    that his daughter Indro, aged about 21 years, was married to  appellant
    Rohtash about one year back and in  the  said  marriage  he  had  given
    sufficient dowry according to his capacity.  However, her  husband  and
    parents-in-law were not satisfied with  the  dowry.  They  always  made
    taunts for not bringing sufficient dowry.  His son-in-law made  various
    demands and the complainant had to give him a sum  of  Rs.10,000/-.  He
    had received information through Gopi Chand and  Ram  Kishan  that  his
    daughter had died by consuming poisonous tablets and her dead body  had
    been cremated  in the morning.  On the basis of the said statement, FIR
    was recorded in P.S. Kharkhoda on 14.7.1989 at about  8.10  p.m.  under
    Sections 304, 201 and 498-A of the IPC.   S.I.  Inder  Lal  accompanied
    Jiwan, complainant (PW.1) to village Mandora and went to the  house  of
    the accused persons.  The accused persons, namely,  Smt.  Brahmo  Devi,
    Rajbir and Dharampal were found present. He  made  the  inquiries  from
    them and, thereafter, came back to the police  station  and  added  the
    offence under Section 304-B IPC.  The  said  accused  as  well  as  the
    appellant were arrested.  The I.O. went to  the  cremation  ground  and
    took into possession the ashes and bones in  presence of Jiwan  (PW.1),
    complainant and other witnesses and after  putting  them  under  sealed
    cover sent the same for FSL report. He lifted broken  pieces  of  glass
    bangles and prepared a recovery memo in presence of the witnesses.   He
    further recorded the statement of witnesses under Section 161  of  Code
    of  Criminal  Procedure,  1973  (hereinafter  called  Cr.P.C.).   After
    completing the investigation, the I.O. submitted  the  chargesheet  and
    trial commenced for the offences under Section 304-B and 498-A IPC.


    B.      The prosecution in support of its case  examined  Jiwan  (PW.1)
    complainant, Suresh (PW.2), Fateh Singh (PW.3), Inder  Lal  (PW.4)  and
    other formal witnesses, however, gave up certain  witnesses  like  Gopi
    Chand on the apprehension that he had been  won  over  by  the  accused
    persons.


    C.      Under Section 313 Cr.P.C., the accused made the statement  that
    they had been falsely implicated in the case.  Appellant was  leading a
    happy married life and never ill-treated  his  wife  for  not  bringing
    enough dowry. Deceased was suffering from fits, as a  result  of  which
    she died. Accused persons  had  informed  her  parents  through  Rajbir
    accused  and  cremation  was  done  after  arrival  of   Jiwan   (PW.1)
    complainant and his other relatives.


    D.      After appreciating the evidence and considering  the  documents
    on record, the trial court  reached  the  conclusion  that  there  were
    material  inconsistencies  in  the   depositions   of   Jiwan   (PW.1),
    complainant, Suresh (PW.2) and Fateh Singh (PW.3), particularly on  the
    issue of demand of dowry as they could not exactly point out the amount
    of demand and payment.  Suresh  (PW.2),  though  deposed  that  he  had
    purchased the house of  the  complainant  for  a  sum  of  Rs.12,000/-,
    however, no document could be produced in respect of the same  as  land
    under the house belonged to Wakf Board.  The prosecution case has  been
    that the complainant has been forced to sell  his  house  to  meet  the
    demand of dowry.


          The trial  court  also  drew  adverse  inference  for  withholding
    material witnesses, particularly,  Gopi  Chand  who  had  informed  the
    complainant about the death of  his  daughter.  The  trial  court  vide
    judgment and order dated 3.8.1993 acquitted all the accused persons  of
    all the charges.


    3.      Aggrieved, the State preferred Criminal Appeal  No.  146-DB  of
    1994 before the High Court. The High  Court  reappreciated  the  entire
    evidence and came to conclusion that there was  nothing  on  record  to
    show that Indro, deceased, died of fits; no medical evidence  had  been
    produced to show that she had been suffering  from  fits.    There  was
    sufficient evidence on record to show demand of dowry by the  appellant
    from his father-in-law.  The appellant  had   been  making  taunts  and
    caused torture to the deceased on the ground of inadequate  dowry.  The
    demand by the appellant had been fully supported by Suresh  (PW.2)  who
    purchased the house of the complainant for a sum of Rs.12,000/-.  Indro
    died within a period of one and a half  years  of  marriage.  The  High
    Court convicted the appellant under Section 304-B IPC and  imposed  the
    punishment of 7 years rigorous imprisonment, further under Section 498-
    A IPC imposed the punishment of six months  RI.  In  respect  of  other
    persons  the  order  of  acquittal  passed  by  the  trial  court   was
    maintained.


            Hence, this appeal.


    4.      Shri K.K. Kaul, learned counsel appearing  for  the  appellant,
    has submitted that there has been no demand of dowry by the  appellant.
    The High Court did not appreciate the evidence in correct  perspective.
     There had been  material  contradictions  in  the  deposition  of  the
    prosecution witnesses. Suresh (PW.2) could not purchase  the  house  of
    the complainant as admittedly the land belonged to the Wakf  Board  and
    no document had ever been produced in  the  court  to  show  the  sale.
    Fateh Singh (PW.3) has no direct relationship with the family.  He  has
    supported the prosecution  case  merely  because  he  belonged  to  the
    village of the complainant.   Appellant had  furnished  a  satisfactory
    explanation while making his statement under Section 313 Cr.P.C., thus,
    the appeal deserves to be allowed.


    5.      Per contra, Shri Sanjiv,  learned counsel  appearing  for  Shri
    Kamal Mohan Gupta, Advocate, for the State, has vehemently opposed  the
    appeal, contending that the Indro, deceased, died within a  short  span
    of one and a half years of her marriage. No evidence has been  produced
    by the appellant to show that she had been suffering from fits.   There
    has  been  persistent  demand  of  dowry  as  stood  proved  from   the
    depositions of Jiwan (PW.1), Suresh  (PW.2)  and  Fateh  Singh  (PW.3),
    thus, appeal lacks merit and is liable to be dismissed.


    6.      We have considered the rival submission made by learned counsel
    for the parties and perused the records.


          It may be pertinent to make reference to the relevant part of  the
    deposition of witnesses.  Jiwan (PW.1), complainant,  deposed that  her
    daughter had complained against the ill-treatment given to her  by  her
    husband, his parents and his elder brother Rajbir;  they  even  taunted
    her that she belonged to “Bhukha-Nanga” family and that her father  had
    not given adequate dowry.  Rohtash accused also visited him  and  asked
    him to give Rs. 10,000/-  so that  he  could  settle  himself  in  some
    business.  Six months  after  the  marriage,  he  gave  Rs.10,000/-  to
    Rohtash accused  after selling his house.   Her in-laws still continued
    to ill-treat her and raised a  further  demand  of  Rs.5,000/-  on  the
    pretext that they wanted to settle Rajbir, elder brother  of   Rohtash,
    in some business. On the fateful day of incident, Gopi  Chand  and  Ram
    Kishan of Village Mandora came to him and told that his daughter  Indro
    had consumed poisonous tablets and died.
          He was confronted with his statement under Section 161 Cr.P.C.  in
    respect of demand of Rs.10,000/- by appellant Rohtash as no  such  fact
    had been stated by him to the I.O. Even for the  demand  of  Rs.5,000/-
    for Rajbir, he was confronted with  his  statement  under  Section  161
    Cr.P.C. as no such fact had been mentioned therein.


            He was also confronted with his  statement  under  Section  161
    Cr.P.C. as he had not stated before the I.O. that he had been  informed
    about the  death  of  his  daughter  by  Gopi  Chand  and  Ram  Kishan.
    Regarding the sale of the house to Suresh (PW.2), he has admitted  that
    land belonged to the Wakf Board and, therefore, he  could  not  execute
    any registered sale-deed in respect of the same.


    7.      Suresh (PW.2) deposed that he  had  purchased  the  house  from
    Jiwan (PW.1), complainant, for  Rs.  12,000/-,  however,  no  sale-deed
    could be executed in his favour as the land belonged to the Wakf Board.




    8.      Fateh Singh (PW.3) deposed that  he  had  been  told  by  Jiwan
    (PW.1) that he was under a great pressure to pay  Rs.10,000/-   to  the
    appellant to buy peace for his daughter and he  had  given  Rs.10,000/-
    to the appellant.  He was confronted with his statement  under  Section
    161 Cr.P.C. where he has not told the I.O.  about this transaction.


    9.      S.I., Inder Lal (PW.6),  Investigating Officer, deposed that he
    went to the cremation ground and collected ashes and bones in  presence
    of  witnesses  and  sent  it  for  chemical  analysis.  In  his  cross-
    examination he has stated that no  independent  witness  was  ready  to
    involve himself in the case becoming a prosecution witness as it was  a
    family matter for the accused persons.


    10.     So far as the statement of  the  appellant  under  Section  313
    Cr.P.C. is concerned, he replied that the facts and  circumstances  put
    to him were not correct.  In reply to Question No. 10, he  stated  that
    his wife Indro did not commit suicide and the allegation of suicide was
    concocted version.  In reply to  para 21, he stated as under:
             “The deceased Smt. Indro was leading a happy married life  with
             me and we never ill-treated her, much less on  account  of  any
             dowry.  The deceased was suffering from fits  as  a  result  of
             which she had  died.   We  had  informed  the  parents  of  the
             deceased through Rajbir accused and after Jiwan  P.W.  and  his
             other relations had come to our village, we  had  cremated  the
             dead  body of the deceased in their presence  in  our  village.
             There was no question of our demanding any dowry, much less ill-
             treating the deceased on that  account  because  our  financial
             position is very sound.”


    11.     The aforesaid  depositions  make  it  crystal  clear  that  the
    version  given  by  the  prosecution  witnesses  regarding  demand   of
    Rs.10,000/- by the appellant  did not find  mention  in  the  statement
    under Section 161  Cr.P.C.  of  either  of  the  witnesses.  The  facts
    regarding the sale of house by Jiwan (PW.1) to Suresh (PW.2)  does  not
    also inspire confidence as the land belonged to Wakf  Board.  More  so,
    the demand of Rs.5,000/-  for establishment of a business of Rajbir was
    made by the in-laws of the deceased Indro, and not  by  the  appellant,
    who had been acquitted by both the courts below,  therefore, that issue
    cannot be considered by us.
          Only question remains for our consideration is as to whether there
    was a dowry demand by the appellant and for that purpose  the  deceased
    Indro had been ill-treated to the extent that she had to take a drastic
    step of committing suicide.


    12.     This Court in Appasaheb v. State of Maharasthra, (2007)  1  SCC
    721, while dealing with the similar issue and definition  of  the  word
    `dowry’ held as under:
             “A demand for money on account of some financial stringency  or
             for meeting some urgent domestic  expenses  or  for  purchasing
             manure cannot be termed as a demand for dowry as the said  word
             is normally understood.”


    13.     The aforesaid judgment was reconsidered by this Court in Bachni
    Devi v. State of Maharashtra, (2011) 4 SCC 427, wherein this Court held
    that the aforesaid judgment does not lay  down  a   law  of   universal
    application.  Each case has to be decided on its own facts  and  merit.
    If a demand for property or valuable security, directly or  indirectly,
    has nexus with marriage, such demand would constitute demand for dowry.
    The cause of raising of such demand remains immaterial.


14. In view of above, we have to examine as to whether the  demand  by  the
    appellant for establishment of his tailoring business could be held  to
    be a demand for dowry and further whether for  that  demand,  the  ill-
    treatment  given by the appellant to his wife was so grave that she had
    been driven to the extent that she has to commit suicide.
          The prosecution case has  been  that  Indro,  deceased,  committed
    suicide by taking pills/poison. There is ample evidence on  record  and
    it has  specifically  been  mentioned  by  the  prosecution  witnesses,
    particularly, Jiwan (PW.1), Fateh Singh (PW.3)  and  S.I.,  Inder  Lal,
    I.O., (PW.6),  that some broken pieces of bangles had been collected by
    the I.O.  from the place of occurrence and broken  bones  and  articles
    were collected from the cremation site and sent for  chemical  analysis
    to Forensic Science Laboratory.   Unfortunately,  none  of  the  courts
    below has taken note of the FSL report though the documents   had  been
    marked as Ext.PH and Ext. PH1. The first document is report No.  FSL(H)
    dated 29.5.1990 by the Forensic Science Laboratory, Haryana,  Madhuban,
    Karnal, wherein the result of examination of  bones  and  ashes  is  as
    under:
        Ext.1 – some burnt bones alongwith ash (Approximately 1 Kg.)
        Result of the examination – no  common  metallic  poison  could  be
        detected in Ext. 1.
        Ext. PH1 dated 16.8.1989 revealed that the fragments  of  bones  in
        Ext. PH1 were identified that they belonged to human  individual.
             The  aforesaid  reports  do  not  support  the  case  of   the
    prosecution, rather leans towards the defence taken by the appellant.


    15.     The High Court interfered with the order of acquittal  recorded
    by the trial court.  The  law  of  interfering  with  the  judgment  of
    acquittal is well-settled. It is to the effect that only in exceptional
    cases where there are compelling  circumstances  and  the  judgment  in
    appeal is found to be perverse, the appellate court can interfere  with
    the order of the acquittal. The appellate court should bear in mind the
    presumption of innocence of the accused  and  further  that  the  trial
    court's acquittal bolsters the presumption of  innocence.  Interference
    in a routine manner where the other view is possible should be avoided,
    unless there  are  good  reasons  for  interference.  (Vide:  State  of
    Rajasthan v. Talevar & Anr.,  AIR  2011  SC  2271;  and  Govindaraju  @
    Govinda v. State by Srirampuram Police Station &  Anr.,  (2012)  4  SCC
    722).


    16.     In view of above, we are of the considered opinion that in  the
    instant case there had been major  improvements/embellishments  in  the
    prosecution case and demand of Rs.10,000/- by the  appellant  does  not
    find mention in the statements under Section 161 Cr.P.C.  More so, even
    if such demand was there, it may not necessarily be a demand of  dowry.
    Further,  the chemical analysis report falsifies the theory of  suicide
    by deceased taking any pills.  In such a  fact-situation,  the  defence
    taken by the appellant in his statement under Section 313 Cr.P.C. could
    be  plausible.
            Thus, appeal succeeds and is allowed.  The appellant  is  given
    the benefit of doubt and the impugned judgment of the High Court  dated
    11.1.2007 is set aside.  The appellant is acquitted of all the charges.


                                         ………………………..J.
                                              (Dr. B.S. CHAUHAN)




                                                    ………………………..J.
                                              (DIPAK MISRA)
    New Delhi,
    May 22, 2012

No complaint should be filed after 2 years from the date of cause of action as it is barred by limitation= Section 24A of the Act reads as under: “24A – Limitation Period - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION No. 2416 OF 2007

(From the order dated 16.04.2007 in First Appeal No.116 of 2004of the Delhi State Consumer Disputes Redressal Commission, Delhi)

M/s NIIT Ltd.

NIIT House

C – 125, Okhla Phase I                                                                Petitioner

New Delhi – 110 020

versus

Ms. Pooja Chugh

Flat No. 9 B, Block B, Pocket U &V                                     Respondent

Shalimar Bagh, New Delhi

BEFORE:

HON'BLE MR.ANUPAM DASGUPTA                      PRESIDING MEMBER

For the Petitioner                         Mr. Avanish Kumar, Advocate

For the Respondent              Mr. P. K. Chugh, Authorised Representative

 

Pronounced on  25^th May, 2012

ORDER

ANUPAM DASGUPTA

        This revision petition challenges the order dated 16.04.2007 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’). By this order, the State Commission partly allowed the appeal of the petitioner and directed as under:

“6.    Since the District Forum has already awarded a compensation of Rs.25,000/- the interest awarded on the amount of the fees was not awardable as interest itself is awarded by way of compensation if there is no such term of the contract.

7.      In the result, we partly allow the appeal by maintaining the direction to refund the fees with compensation of Rs.25,000/- and enhance cost of proceedings to Rs.10,000/- and set aside the interest awarded by the District Forum. Payment shall be made within one month from the date of receipt of this order”.

2.     The respondent had filed a consumer complaint before the District Consumer Disputes Redressal Forum (North-West), Shalimar Bagh, Delhi (in short, ‘the District Forum’) alleging that she got admitted to the 2- year GNIIT Diploma Course on payment of fee of Rs.37,400/- on 14.06.1999. Eventually, at the suggestion of the Centre Head of NIIT, she upgraded to the 3-year GNIIT Diploma Course. She alleged that the said Centre Head assured her and her father that she would be placed in some multi-national company (MNC) for training during the 1- year professional practice (PP) phase, immediately after completing the 2-year Course and she might also get a job in the same MNC. However, despite further payment of Rs.26,700/- in order to do some extra courses to enhance her prospects and continuous follow-up (during which she and her father were made to run around from one centre of OP to another), she could not get any job. She thus alleged, deficiency in service and unfair trade practice by the NIIT.

3.     The petitioner, which was the opposite party (OP) before the District Forum, contested the allegations and averred that after completion of the 2-year Course, the complainant was sent for PP at ATL Company. However, she was unable to clear the interview. Subsequently, she was provided PP at NIIT, Model Town in 2001 as a Faculty member. Yet, she left the job for reasons best known to her. She was called twice thereafter for assignments in different companies but refused to appear for the interviews. The OP further stated that it provided PP to its students only in such companies and organisations where the student’s progress could be monitored and assessed. Denying any deficiency in service, the OP prayed for dismissal of the complaint. The complainant also filed a rejoinder to the written version of the OP.

4.     On appraisal of the pleadings and evidence of the parties, the District Forum held the OP guilty of deficiency in service and directed it to refund the full fee with interest @ 9% per annum from the date of deposit and also pay Rs.25,000/- as compensation for mental agony and harassment and Rs.1500/- as cost of litigation. These amounts were directed to be paid within one month from the date of receipt of the order, failing which the OP was required to pay interest @ 9% per annum on the whole amount. It was this order of the District Forum that the OP appealed against before the State Commission, with the result noted above.

5.     I have heard Mr. Avanish Kumar, learned counsel for the petitioner/OP and Mr. Parveen Kumar Chugh, father of the respondent/complainant on her behalf.

6.     It is an admitted position that the respondent/complainant did a 3- year Diploma Course with the NIIT, Shalimar Bagh, Delhi, starting sometime in middle of 1996. Out of 3 years, the last 1 year was also admittedly for doing professional practice (PP), opportunities for which had to be provided by the NIIT. Consumer complaint alleging deficiency in service on the part of the petitioner NIIT was, however, filed on 29.10.2002, whereas on completion of one year of PP, the cause of action arose some time in the middle of 1999. Even if it is taken that the cause of action continued till the end of the calendar year 1999, the complaint was filed much after the statutory limitation period of 2 years from the commencement of the cause of action, as provided in section 24A of the Consumer Protection Act, 1986 (in short, ‘the Act’). It is also seen that both in the written version as well as in the memorandum of appeal, the petitioner/OP had specifically raised objection that the complaint was time-barred. It is nobody’s case that the complainant filed any application for condonation of delay. Moreover, the orders of both the Fora below are completely silent on this preliminary but important question raised by the petitioner/OP.

7.     Section 24A of the Act reads as under:

“24A – Limitation Period -  (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay.”

8.     In discussing the import of the aforesaid section, the Apex Court has observed as under in the case of State Bank of India v B. S. Agriculture Industries(I) [(2009) 5 SCC 121]:

“7.    The bank resisted the complaint on diverse grounds, inter alia, (i) that the complainant was not a consumer within the meaning of Consumer protection Act, 1986 (for short, ‘Act, 1986’); (ii) that the complaint was early time barred and beyond the period of limitation; (iii) that the bills and GR’s were returned to B.M. Konar, the Sales Manager of the complainant firm; (iv) that the drawee (M/s Unique Agro Service) had accepted the liability of payment of the bills to the complainant vide letter dated May 11, 1994 and also deposited a cheque to the complainant in that regard.

8.      The District Forum framed two points for determination: (one) whether there is any deficiency on the part of the opposite party and (two) whether B.M. Konar was authorized agent in collecting the bills and GR’s from the Bank? Pertinently, despite the specific plea having been raised by the Bank that the complaint was time barred, point for determination in this regard was neither framed nor considered.

9.     The District Forum held that there was deficiency in service by the Bank and that the Bank was liable to compensate the complainant and consequently, directed the Bank to pay to the complainant a sum of Rs. 2,47,154/- with interest @ 15% per annum from April 21, 1994 and Rs. 5,000/- as compensation.

10.    As stated earlier, the State Commission affirmed the order of the District Forum and the National Commission also did not interfere with the concurrent orders of the consumer fora.

11.    Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

“24A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in section 24A is a sort of legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.

12.    As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

14.    In Haryana Urban Development Authority v. B.K. Sood, (2006) 1 SCC 164, this Court while dealing with the same provision, viz., section 24A of the Act, 1986 held:

“10.       Section 24-A of the Consumer Protection Act, 1986 (referred to as the Act hereafter) expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

11.         The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay.

12.         Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two-year period prescribed by section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal.”

[Emphasis supplied]

9.     Given the aforesaid settled position of law, the complaint could not be entertained ab initio by the District Forum, rendering its order and the subsequent order of the State Commission totally unsustainable.

10.    In view of the foregoing discussion, the revision petition is allowed, the orders passed by the State Commission as well as the District Forum are set aside and the complaint is dismissed as being time-barred. However, considering the small amount involved and the period of time that has elapsed since filing of the complaint, it is hoped that the petitioner would not insist on recovery of any payment that it might have made to the respondent/complainant in the intervening period. No order as to costs.

Sd/-

…………………………………..

[Anupam Dasgupta]

satish