sample_cases_summarized_hybrid.csv

Case Title,Link,Case Content,Summary
"Zahoor Ahmad Rather vs Sheikh Imtiyaz Ahmad on 5 December, 2018",https://indiankanoon.org/docfragment/85514936/?formInput=doctypes%3A%20supremecourt%20year%3A%202018,"Take notes as you read a judgment using ourVirtual Legal Assistantand get email alerts whenever a new judgment matches your query (Query Alert Service). Try out ourPremium Member Services--Sign up todayand get free trial for one month.
Dr Dhananjaya Y Chandrachud, J

Civil Appeals @ SLP (C)Nos 30797-30798/2017:

The qualification for the post of Technician-III was “Matric with ITI”. The

qualification for the post of Junior Engineer, which ranks higher in the

hierarchy of posts, was a B E (electrical) / diploma (electrical).
4.    On 23 February 2013, an advertisement was issued by the J & K

State Service Selection Board (SSSB) for filling up the posts of Technician-

III in the Power Development Department for various districts including3Budgam, Srinagar and Ganderbal. Note 3 of the advertisement contained

the following stipulations, which every applicant was required to fulfil:
5.     The appellants applied for the post of Technician-III. The first

appellant holds a Diploma in Electrical Engineering. Appellants 2, 3 and 4

hold a Diploma in Electronics and Communication. Appellants 5 and 6 hold

a Diploma in Electrical Engineering. None of them possesses the ITI

certification.

6.    On 14 August 2014, a list of disqualified candidates was notified by

the SSSB. The appellants were not part of that list and were called for a

written test on 23 August 2014. On 20 November 2014, a notification was

issued for the purpose of shortlisting candidates who had cleared the

written test, for the interview. The notification reflected the category – open

or reserved – under which each candidate was considered. Interviews were

conducted for the districts of Budgam, Srinagar and Ganderbal at which the

appellants appeared.

7.    On 31 January 2015, the SSSB held its 116 th meeting at which,

among the subjects on the agenda, was the following:
8.    The Minutes of the Meeting record that the following decision was

arrived at by the Board:

9.    A select list was published on 23 April 2015. The appellants were not

included in the select list. The reason for the omission is that none of them

possessed an ITI qualification. Aggrieved by their non-inclusion, the

appellants instituted writ proceedings seeking consideration of their

candidature for selection to the post of Technician-III on the basis of their

position in the merit list. The appellants sought the quashing of the select

list framed for the three districts without considering their position in merit

and desired the reframing of the select list.

10.   The learned Single Judge by a judgment dated 1 August 2017

allowed the writ petitions on the ground that it was not open to the SSSB to

exclude the appellants after the process of selection was set in motion and

they had been subjected to a written test as well as an interview. In the view

of the learned Single Judge, the rules could not have been changed after

the selection process had been initiated, particularly since the list of

disqualified candidates did not include them. The learned Single Judge

noted that a candidate possessing a Diploma – electrical is entitled to

appointment to the post of Junior Engineer which ranks higher than the

post of Technician – III. Hence, in this line of reasoning, if the appellants

were eligible to hold a higher post, their qualification was adequate for the6post of Technician-III and a Diploma in Electrical Engineering pre-supposes

the acquisition of the lower qualification of Matric with ITI. In this view of the

matter, the select list was quashed and the SSSB was directed to reframe it

according to the merit secured by the appellants and other candidates.

Directions were issued for making appointments on the basis of the select

list as reframed.

11.   In the Letters Patent Appeals which were filed before the High Court,

the Division Bench reversed the judgment of the learned Single Judge. The

Division Bench held that the advertisement mandated an ITI in the relevant

trade as a condition of eligibility and the SSSB had not granted any

weightage to a higher qualification, in terms of Note 12. Moreover, the

SSSB had categorically taken a decision on 31 January 2015 that it was

only an ITI in the relevant trade with a Matric qualification that meets the

prescribed qualifications.In arriving at this conclusion, the Division Bench

has inter alia relied on a judgment of this Court inP M Latha v State of

Kerala1.

12.   Ms Kaveeta Wadia, learned counsel appearing on behalf of the

appellants has underlined the significance of the provisions contained in

Note 12 to the advertisement dated 23 February 2013. The submission is

that the prescribed qualification of a Matric with ITI is “the bare minimum

1 (2003) 3 SCC 5417requirement of job” and the Note contemplates that weightage can be

granted to a higher qualification in the relevant line or discipline as may be

decided by the Board. Learned counsel has buttressed her submissions by

urging that:

Ms Wadia Placed reliance on a series of advertisements issued by the

Board and on the mark-sheets of ITI with a lateral entry to the diploma

course. Devoting a considerable amount of industry to her research, Ms

Wadia has painstakingly placed on the record these documents in the form

of a compilation on the record. Ms Wadia urged that there is no prohibition

on the holder of a diploma in seeking appointment as Technician-III.

Besides the fact that there is an absence of a prohibition, learned counsel

submitted that Note 12 clearly indicates that the prescribed qualifications

constitute the bare minimum requirement of the job and that a candidate

with a higher qualification cannot be disqualified. This, in her view, is also

the position which has been adopted by the Board in an affidavit filed in

April 2001 before the High Court inRavinder Singh v State2. Learned

counsel relied on the orders passed in those proceedings by the High

Court.Finally it was urged, placing reliance on a judgment of this Court in


2 SWP 1706/2000 CMP No 2727/20008Jyoti KK v Kerala Public Service Commission3that where a person has

acquired a higher qualification, it can be stated to presuppose the

acquisition of the lower qualification prescribed for the post. In the absence

of any exclusion of a person holding higher qualifications, it was urged, a

diploma holder cannot be disqualified from applying for the post of

Technician-III.

13.        On the other hand, it has been urged on behalf of the SSSB by Mr

Riyaz Ahmad Jaan, learned senior counsel, that:

3 (2010) 15 SCC 5969
(vi)     The Board decided against the grant of any such weightage;
(vii)     No right of the appellants has been infringed and the process

            which has been followed is fair; and
(viii) The Board has plainly acted in pursuance of the position that the

            prescribed qualification for the post of Technician-III is Matric with

            ITI. A diploma holder does not fulfil that requirement.


Adopting these submissions, Mr Shoeb Alam, learned counsel for the State

of Jammu & Kashmir urged that the SSSB did not change the ‘rules of the

game’ mid-stream, as the learned Single Judge seemed to suggest. On the

contrary, the SSSB had affirmed the prescribed qualifications.
14.     On 4 December 1996, the Government of Jammu and Kashmir

through its Planning and Development Department notified its sanction to

the creation of 23,297 posts. Among them was the post of Technician-III.

The qualification prescribed for the post of Technician-III is “Matric with ITI”.
15.     The Jammu and Kashmir Civil Services Decentralisation and

Recruitment Act, 2010 provides in Section 5 that appointment to district,

divisional and state cadre posts shall be made by the competent authority

on the basis of a selection made by the Public Service Commission or the

State Service Selection Board, as the case may be. Section 6 provides

thus:
16.    Rules of 2010 have been framed under the provisions of the Act 4.

Rule 6 provides for the constitution of the Services Selection Board. The

Board has a three-tier set up comprising of selection committees at the

state level, divisional level and district level.                Rule 13 sets out the

procedure for inviting applications and eligibility for different cadres. Sub-

rules (1) and (3) of Rule 13 provide as follows:
…

              (3)      The district offices of the Board shall advertise
              the District cadre vacancies of the concerned district
              referred to it by the requisitioning authority and invite
              applications for selection to the said posts from such
              permanent residents of the State who are residents of
              that District and possess the prescribed qualification,
              eligibility   and     experience     for  such     posts.”
              (emphasis supplied)

Rule 14(1) provides for the preparation of a select list:
voce shall not be less than three times and more than five
             times the number of vacancies to be filled up. The final
             selection shall be made by the Board on the basis of
             marks / points obtained in viva-voce added to the marks /
             points obtained in the written test plus the weightage that
             may be provided for any higher / additional / special
             qualification (on pro-rata basis).”



The select list which is finalised by the respective committees has to be

recommended to the requisitioning authority with the prior approval of the

Board, under Rule 14(4). The said rule reads thus:
17.   Under the above provisions as well as in the advertisement which

was issued by the Board, every candidate must possess the prescribed

academic/professional/technical qualification and must fulfil all other

eligibility conditions.      The prescribed qualifications for the post of

Technician-III in the Power Development Department is a Matric with ITI in

the relevant trade. The Board at its 116th meeting took notice of the fact

that in some districts, the interviews had been conducted for candidates

with a diploma in Electrical Engineering while in other districts candidates

with a diploma had not been considered to be eligible for the post of12Technician-III. Moreover, candidates with an ITI in diverse trades had also

been interviewed for the post. The Board resolved at its meeting that only

an ITI in the relevant trade namely the Electrical trade is the prescribed

qualification specified in the advertisement.

18.   The learned Single Judge was persuaded to accept the submissions

of the petitioners who had moved the Writ Petition primarily on two

grounds. The first was that the Board had changed the rules in the midst of

the selection process. In holding thus, the learned Single Judge was clearly

in error. The Board did not bring about any change in the rules or the

norms governing the selection mid-stream.       There was no deviation from

prescribed requirement for the post, of ITI with Matric. In fact the Board

resolved to adhere to the qualification which was prescribed in the

advertisement.An anomalous situation had arisen as a consequence of

which, despite the prescribed qualifications, interviews of diploma holders

had been conducted in some districts. This was plainly in breach of the

conditions of the advertisement and was rectified by the Board. The second

ground which weighed with the learned Single Judge was that the holder of

a diploma is eligible for the higher post of Junior Engineer and hence a

candidate who holds a diploma must be “pre-supposed” to hold the lower

qualification of an ITI. This line of reasoning appears to be based on the

judgment of a two Judge bench of this Court inJyoti KK(supra). Before13adverting to the decision in Jyoti KK, it would be necessary to advert to

some of the decisions of this Court on the subject.

19.InPM Latha(supra), a two judge Bench of this Court rejected the

contention that the B.Ed. qualification is a higher qualification than the

Trained Teachers Certificate (TTC) and that a B.Ed. candidate should be

held to be eligible to compete for the post of a primary school teacher. This

Court held:
20.   The decision in Jyoti KK arises from a case where the Public

Service Commission had invited applications to the post of a Sub-Engineer


5 id at page 546
6(2003) 3 SCC 54814(Electrical) in the Kerala State Electricity Board. The qualifications

prescribed for the post were:

suppose the acquisition of a lower qualification. The absence of such a rule

in the present case makes a crucial difference to the ultimate outcome. In

this view of the matter, the Division Bench of the High Court was justified

in reversing the judgment of the learned Single Judge and in coming to the
10 id at page 17718conclusion that the appellants did not meet the prescribed qualifications.

We find no error in the decision of the Division Bench.
23.   While prescribing the qualifications for a post, the State, as employer,

may legitimately bear in mind several features including the nature of the

job, the aptitudes requisite for the efficient discharge of duties, the

functionality of a qualification and the content of the course of studies which

leads up to the acquisition of a qualification. The state is entrusted with the

authority to assess the needs of its public services.             Exigencies of

administration, it is trite law, fall within the domain of administrative decision

making. The state as a public employer may well take into account social

perspectives that require the creation of job opportunities across the

societal structure.   All these are essentially matters of policy.       Judicial

review must tread warily. That is why the decision in Jyoti KK must be

understood in the context of a specific statutory rule under which the

holding of a higher qualification which presupposes the acquisition of a

lower qualification was considered to be sufficient for the post. It was in the

context of specific rule that the decision in Jyoti KK turned.
24.   Ms Wadia sought to draw sustenance from the fact that the holder of

an ITI certification can obtain lateral entry to the diploma course. The point

of the matter, however, is that none of the appellants fit the description of

candidates who had secured an ITI certification before seeking a lateral19entry to a diploma course. Plainly, when an ITI with matric is required, a

person who does not hold that qualification is not eligible.
25.   The submission based on Note 12, urged by Ms Wadia, cannot be

accepted.    The stipulation that the qualification prescribed is the bare

minimum requirement of the job emphasises that it is an essential

requirement, a threshold which cannot be dispensed with. Under Note 12,

the Board is entitled to assign additional weightage for a higher

qualification. Whether such a weightage should be assigned is a matter for

the Board to determine. The SSSB did not assign an additional weightage

for a higher qualification. In not exercising an enabling power, no fault can

be found with the SSSB. An enabling provision postulates a discretion

which may or may not be exercised. A candidate has no vested right to

assert that the Board must as a mandate assign an additional weightage to

a higher qualification. Whether to do so or not is a matter for the Board to

determine. All that Note 12 postulates is that the mere possession of the

prescribed qualification will not entitle a candidate to be called for the

written test or interview. The Board may shortlist among eligible candidates

by granting a weightage to a higher qualification in the relevant line or

discipline. But the words “as may be decided by the Board” in Note 12

indicate that the Board is vested with a discretion in pursuance of an

enabling power which it may or may not exercise.

26.   Ms Wadia, learned counsel appearing on behalf of the appellants,

however, urged that a peculiar situation arises in the present case because

the appellants were permitted initially to appear for the written test and the

interview. Their names were not contained in the disqualification list. Ms

Wadia submitted that the appellants would have become age barred by

now to pursue any future application. Recourse to our jurisdiction underArticle 142is warranted particularly since the appellants have spent nearly

four years in pursuing their quest for the job of Technician III. They had

even succeeded before the learned Single Judge. Hence, the rigors of the

hardship, which the appellants confront, can be met by a suitable direction

for age relaxation in their case. As we have noted in the earlier part of this

judgment, the appellants applied in 2013 in pursuance of the advertisement

that was issued by the SSSB. They were pursuing their remedies in the

writ proceedings which ultimately culminated in the order of the learned

Single Judge dated 1 August 2017. The Letters Patent Appeal was allowed

on 12 October 2017. Having regard to these circumstances, we are of the

view that the appellants should be granted an age relaxation to the extent

of four years should they apply for any other post that may be advertised

by the State of Jammu and Kashmir in the next two years.            The age

relaxation of four years shall be available to the appellants for any post

advertised upto 30 November 2020.          Save and except for the above

direction in regard to age relaxation, we have not interfered with the21judgment and order of the Division Bench of the High Court. The appeals

shall, accordingly, stand disposed of. There shall be no order as to costs.




Civil Appeal No.11855 of 2018 @ SLP (C)No 31196 of 2017:
27.   Leave granted.

28.   This appeal is also disposed of in the same terms, conditions,

observations   and directions     as   in Civil Appeal Nos.11853-11854

of 2018 @ SLP (C) Nos 30797-30798 of 2017.

.....................................................J
                                             [UU Lalit]


                                            .....................................................J
                                            [Dr Dhananjaya Y Chandrachud]
New Delhi;
December 05, 2018","State Service Selection Board (SSSB) for filling up the posts of Technician- allowed the writ petitions on the ground that it was not open to the SSSB to noted that a candidate possessing a Diploma – electrical is entitled to were eligible to hold a higher post. The select list was quashed and the S SSB was directed to reframe it. Division Bench held that the advertisement mandated an ITI in the relevant trade as a condition of eligibility. In some districts, the interviews had been conducted for candidates with a diploma in Electrical Engineering while in other districts candidates qualification specified in the advertisement was “Matric with ITI”. The Board may shortlist among eligible candidates, the High Court said. The submission based on Note 12, urged by Ms Wadia, cannot be. The State, as employer, candidates who had secured anITI certification before seeking a lateral19entry to a diploma course. The Court said that the Board had not granted any granted to a higher qualification in therelevant line or discipline as may be of Jammu & Kashmir. The decision was made by a two Judge bench of this Court inJyoti KK(supra). Some of the decisions of this court on the subject. this view of the matter, the Division Bench of the High court was justified, it said. It said. While prescribing the qualifications for a post, the State,  as employer,candidates who had obtained an ITi certification before sought a lateral entry to aploma course."
"The State Of Bihar vs Devendra Sharma on 17 October, 2019",https://indiankanoon.org/docfragment/108226258/?formInput=doctypes%3A%20supremecourt%20year%3A%202019,"Take notes as you read a judgment using ourVirtual Legal Assistantand get email alerts whenever a new judgment matches your query (Query Alert Service). Try out ourPremium Member Services--Sign up todayand get free trial for one month.
HEMANT GUPTA, J.

1)      This judgment shall dispose of two sets of appeals; one by

        the State arising out of an order dated July 12, 2011 passed

        by the Division Bench of the High Court of Judicature at

        Patna1 whereby, the appeals filed by the State were

        dismissed directed against the order passed by the learned

        Single Judge on October 6, 2009; and another set of appeals

        arising out of an order passed by the Division Bench of the

        High Court on September 24, 2014 whereby the order passed

        by the learned single Bench on October 6, 2009 was set

        aside. Some other Appeals are also on board against the

        orders passed by the High Court on other dates.
2)      Since the issue in the appeals is common arising out of same

        or similar facts, therefore, such appeals have been taken up

        for hearing together.
3)      Brief facts leading to the present appeals are that large

        number of candidates were appointed against Class III or

        Class IV posts in the Health Department in Government of

1    for short, ‘High Court’4Bihar till 1990 or so. The services of such employees were

        terminated which led to number of writ petitions before the

        High Court. The first round of cases came to end with the

        order of three Judge Bench of this Court reported asAshwani Kumar & Ors. v. State of Bihar & Ors.2. This

        Court held that recruitments made by Dr. Mallick were

        arbitrary, capricious, null and void after considering the

        Government order dated December 3, 1980 as well as

        Government resolution dated March 25, 1983.        It was also

        held that none of the appointees have any accrued right in

        the absence of sanctioned posts. It was held that the whole

        exercise remained in the realm of an unauthorised adventure.

        Nothing could come out of nothing. Ex nihilo nihil fit. Zero

        multiplied by zero remains zero.    It was held that army of

        employees under the Scheme had got to be cleared lock,

        stock and barrel so that public confidence in Government

        administration would not get shattered and arbitrary actions

        would not get sanctified.

4)      It is thereafter in another round, the Division Bench of the

        High Court inState of Bihar & Ors. v. Purendra Sulan Kit

        & Ors.3decided approximately 819 Letters Patent Appeals

        and the writ petitions. The High Court noticed that the entry

        to Class III and Class IV posts in the health department during

        the same period were through back door method and, in
2    (1997) 2 SCC 1
3    2006 SCC OnLine Pat 2905many cases, through forged and fabricated letters of

       appointment or through transfer orders without actual

       appointments and, in some cases, appointments were made

       without       availability   of   sanctioned   posts   made        by   the

       authority not competent to appoint.The High Court directed

       the Department of Health in the Government of Bihar to

       scrutinize the cases of affected employees afresh on the

       basis of relevant materials and in view of the law declared by

       this Court inSecretary, State of Karnataka & Ors. v.

       Umadevi(3) & Ors.4. The High Court held as under:
4   (2006) 4 SCC 16employees as a result of the exercise to be
                        undertaken by them and their final decision in
                        the light of this judgment and order.”
5)      It is in pursuance to such direction; the State constituted a

        Committee         of   five    officers5   to    examine     the   facts   of

        individual’s case. Two members of the State Committee did

        not participate in the proceedings nor signed the Report but

        remaining three members submitted its report on December

        31, 2008.        After considering the facts of each individual’s

        case, the employees were put in following three categories:
5    for short, ‘State Committee’7October 6, 2009 whereby, the report submitted by three

        members on December 31, 2008 was quashed with a

        direction to reinstate the employees.
7)      The order dated October 6, 2009 was challenged by the State

        in some of the intra-court appeals before the High Court.

        Such appeals were dismissed on March 29, 2011, inter alia,

        on the ground that inquiry was conducted in violation of the

        principle of natural justice as only three members have

        signed the Report. It was thus held that such termination is

        contrary to the judgment of this Court inState of

        Karnataka & Ors. v. M.L. Kesari & Ors.6 Itwas found that

        since the writ petitioners have worked for more than ten

        years, therefore, the services are entitled to be reguarlised.Such judgment is reported asThe State of Bihar & Ors. v.

        Binay Kumar Singh & Ors.7.This Court has allowed some

        of the appeals arising out of order dated March 29, 2011 inState of Bihar v. Kirti Narayan Prasad8. In the meantime,

        many appeals filed by the State were dismissed by the High

        Court on many dates including June 30, 2010, July 12, 2011,

        July 14, 2011, July 20, 2011, April 15, 2013, October 30, 2013

        and November 30, 2015 which are subject matter of

        challenge in the present appeals.

8)      The order passed by the learned Single Judge also gave rise
6    (2010) 9 SCC 247
7    2011 (3) PLJR 547
8    2018 SCC OnLine SC 2618to LPA No. 1623 of 2009 and other appeals. Such appeals

     were allowed by consent on February 11, 2010 whereby, one-

     man Committee under the Chairmanship of Hon’ble Mr.

     Justice Uday Sinha, a retired Judge of the High Court was

     entrusted the task of looking into various facts of the nature

     of appointment with the view to adjudicate the legality of

     their   appointments     and     continuance    in    service.

     Subsequently, LPA No. 560 of 2010 and some other appeals

     were allowed on March 23, 2010 in the light of order passed

     in the aforesaid LPA but without any consent. The said orders

     were challenged before this Court in Civil Appeal No.6484 of

     2011 and other matters. The appeals were allowed by this

     Court on August 8, 2011, inter alia, on the ground that

     without consent, the appeal could not be disposed of in terms

     of LPA No. 1623 of 2009 and other connected appeals. The

     appeals were directed to be decided afresh. It is thereafter,

     the Division Bench passed an order on September 24, 2014

     setting aside the order passed by the learned Single Bench

     on October 6, 2009.

9)   The Division Bench held that in view of the appointments

     being illegal and void ab initio, the services cannot be

     reguarlised and that the judgment of the Division Bench of

     the High Court in Binay Kumar Singh is contrary to the Full

     Bench judgment inRam Sevak Yadav & Anr. v. The State9of Bihar & Ors9, wherein the appellants were appointed on

       Class IV posts by the Civil Surgeon in the Health Department

       as in the present set of appeals but their services were

       terminated in the year 2001 for the reason that their

       appointments were illegal. The Full Bench of the High Court

       held as under:
9   2013 Lab IC 1607 (FB)10hold that they were appointed against vacant
                 sanctioned post and possessed qualifications
                 for the same. They were terminated before
                 (Uma Devi) (supra) and have sought to retain
                 their status by virtue of Court proceedings
                 and are therefore not entitled to the benefits
                 of paragraph 53. The issue of any procedural
                 irregularity  for   a   finding    of  forged
                 appointment is therefore irrelevant.”
10) The Division Bench in its order dated September 24, 2014,

     following the Full Bench judgment of that court, now subject

     matter of challenge by the employees in these appeals, held

     as under:
In the present case, the appointments of the
                writ petitioners have been repeatedly held to
                be non est or void ab initio. The question of
                regularization of their service even by
                invoking paragraph 44 of the judgment in the
                matter ofUma Devi(3) (supra) shall not
                arise.”
11) The appointments in the Health Department to Class III and

     Class IV posts firstly came up for consideration before this12Court in Ashwani Kumar. This Court examined the following

     points:
A situation had arisen which required immediate action for

     clearing the stables and for eradicating the evil effects of

     these   vitiated   recruitments      so    that   the    Tuberculosis

     Eradication Scheme could be put on a sound footing.               The

     High Court had directed the State to appoint a Committee to

     thoroughly investigate the entire matter.          Such Committee

     had issued public notices. 987 candidates appeared before

     the Committee. This Court held that the material supplied by

     the employees concerned was taken into consideration and

     then the Committee came to a firm decision to the effect that

     all these appointments made by Dr Mallick were vitiated from

     the inception and were required to be set aside and that is

     how the impugned termination orders were passed against17the appellants. Thus, it was held that the principles of natural

     justice were not violated if no opportunity was given to the

     employees concerned to have their say in the matter before

     their appointments were recalled and terminated.
16) However, while answering point No. 4, the State was directed

     to start a fresh exercise for recruiting Class III and Class IV

     employees against available 2250 vacancies or even more

     vacancies. The second round of cases started with the report

     of the State Committee constituted in terms of directions of

     the High Court in Purendra Sulan Kit.

17) When the present set of appeals came up for hearing before

     this Court on April 3, 2018, this Court found the following four

     categories of cases:
Therefore, the forgery is in the basic eligibility condition to

       undertake ANM course, which will vitiate the process of

       appointment.       For the reasons recorded in Kirti Narayan

       Prasad, Civil Appeal Nos. 7906 of 2019, 7919 of 2019 and

       7920 of 2019 are dismissed.

20) Coming to third category of cases, Mr. Mukherjee, learned

       counsel for the State referred to the separate Government

       Circulars dated December 3, 1980 in respect of Class III and

       Class IV category posts. It is contended that appointments on

       such circulars have been found to be illegal by this Court in

       Ashwani Kumar, which view was in fact, approved later by

       Constitution Bench judgment in Uma Devi, wherein this

       Court held as under:
10 for short, ‘ANM’20made in a permanent vacancy, but the same
               should soon be followed by a regular
               recruitment and that appointments to non-
               available posts should not be taken note of
               for regularisation. The cases directing
               regularisation have mainly proceeded on the
               basis that having permitted the employee to
               work for some period, he should be absorbed,
               without really laying down any law to that
               effect, after discussing the constitutional
               scheme for public employment.
xx          xx                  xx
53. One aspect needs to be clarified. There
               may be cases where irregular appointments
               (not illegal appointments) as explained in S.V.
               Narayanappa [(1967) 1 SCR 128 : AIR 1967
               SC 1071] , R.N. Nanjundappa [(1972) 1 SCC
               409 : (1972) 2 SCR 799] and B.N.
               Nagarajan [(1979) 4 SCC 507 : 1980 SCC
               (L&S) 4 : (1979) 3 SCR 937] and referred to in
               para 15 above, of duly qualified persons in
               duly sanctioned vacant posts might have
               been made and the employees have
               continued to work for ten years or more but
               without the intervention of orders of the
               courts or of tribunals. The question of
               regularisation of the services of such
               employees may have to be considered on
               merits in the light of the principles settled by
               this Court in the cases above-referred to and
               in the light of this judgment…………….”
               (Emphasis Supplied)
21) In Uma Devi, the argument that the employees have

    legitimate expectations was negated when this Court held as

    under:
Though, there is a case that the State had
made regularisations in the past of similarly
situated employees, the fact remains that
such regularisations were done only pursuant
to   judicial   directions,   either    of   the
Administrative Tribunal or of the High Court
and in some cases by this Court….
47.     When a person enters a temporary
employment or gets engagement as a
contractual or casual worker and the
engagement is not based on a proper
selection as recognised by the relevant rules
or    procedure,  he    is  aware    of   the
consequences of the appointment being
temporary, casual or contractual in nature.
Such a person cannot invoke the theory of
legitimate expectation for being confirmed in
the post when an appointment to the post
could be made only by following a proper
procedure for selection and in cases
concerned, in consultation with the Public
Service Commission. Therefore, the theory of
legitimate expectation cannot be successfully
advanced by temporary, contractual or casual22employees….”
22) The State Committee has examined all the appointments and

     segregated appointments based on forged documents and

     also irregular appointments.   Once the detailed report has

     been submitted examining the merit of each candidate, and

     when the judgment of this Court in Ashwani Kumar and

     Uma Devi conclusively answer the questions against the

     employees, no further discussion on the arguments raised

     would survive.   However, since the arguments have been

     addressed in respect of the third category of cases i.e.

     appointments made by a person who was not competent to

     make the appointments, we shall consider as to what will be

     the effect of such appointments.

23) Mr. Mukherjee, learned counsel for the State referred to

     various Government orders issued from time to time and

     submitted that such category has to be examined in two

     groups; one where the appointments were made by the

     incompetent authority; and second, the appointments made

     by the competent authority but without any sanctioned post

     and without following the procedure for appointment to public

     post.

24) It is admitted that there is no statutory rule in terms of

     proviso toArticle 309of the Constitution for appointment to

     Class III and Class IV categories in the State. The matter of23appointment is regulated by the Executive instructions. Mr.

Mukherjee has referred to Bihar Health Manual. Chapter I of

the Manual deals with Organisation and functions of the

Health Department of the State. It was pointed out that from

May 1, 1953, the Medical and the Public Health Departments

were    amalgamated       into    one    department     called   the

Department of Health under the Director of Health Services.

It was pointed out that the Director of Health Services is the

appointing    authority    in     respect   of   all   non-gazetted

appointments in the department including the Subordinate

Medical Service. To assist the Director, there is one Additional

Director and three Deputy Directors along with other

gazetted officers including Assistant Directors of Health

Services (M. and C.H.).        The relevant extract of the Manual

reads as under:
3. The Director of Health Services is the
             appointing authority in respect of all non-
             gazetted appointments in the department
             including the Subordinate Medical Service.
(No. 7759., dated the 9th June 1916)”
6. The following powers are also delegated to
             the Director of Health Services being a Head
             of Department under respective Codes, rules
             and orders:-
The powers of Assistant Director of Health Services are

    contained in Clause 9 which reads as under:
(Govt. order no. 262/HD, dated the 13th July,
                 1953.)”
26) The Civil Surgeons in Districts as also State Leprosy Officer

     and Director, T B Demonstration Centre are subordinate to

     the Director of Health Services.      The powers of Assistant

     Director of Public Health are as under:
(Govt. order no. 27680-H date dated the 1st
                 November, 1954).”26
27) A circular was issued by the State on September 5, 1979 with

     regard to retrenchment of Government/Semi-Government

     employees appointed on category III and IV temporary posts

     on ad-hoc basis. Thereafter, separate circulars were issued

     providing for procedure for appointment on category III and IV

     posts on December 3, 1980.        The relevant clause for the

     purposes of determining the person competent to make

     appointment in respect of Category III posts reads as under:
Officer of Scheduled Caste/Scheduled Tribe
                available in the department will be the
                second member. In case no such officer is
                available, if the officer of that category is
                available in another department, then he will
                be included in the Committee and if even this27is also not possible, then Joint/Dy. Secretary of
the Personnel Department, who perform the
works related to Scheduled Caste/Scheduled
Tribe, will be appointed as a Member.
(ii) For preparation of merit list at District
level, District Head of the attached
Establishment will be the Chairman of
selection committee constituted and any
other senior officer of that Establishment,
who is nominated by their District level Head,
will be its member. Second Member will be
the District Welfare Officer so that at the time
of preparation of merit list of government
orders regarding maintenance no violation is
committed.
government that appointments on category 3
posts are not being made according to the
procedure prescribed in the above-said
resolution. The act of working against the
prescribed procedure clearly means the
violation of government orders, which is a
matter of regret. Therefore, it is expected
that the appointments on category 3 posts
are made according to the procedure
prescribed     in    the     above-mentioned
Resolution. It will be the responsibility of
each appointing authority to ensure that the
procedure with regard to appointment on
category 3 posts is followed strictly. In cast it
is found that prescribed procedure has not
been followed by the appointing authority
with regard to appointment on category 3
posts, then Government will have to take
necessary action against him. Inquiry will be
conducted immediately on receiving the
complaint that the officer has not followed the
prescribed procedure and if the charge is
found proved, the officer will be placed under
suspension immediately and departmental
action will be taken to remove him from
services. Such incorrect appointments will be
cancelled immediately.”28
28) Similar is the circular in respect of appointment to Category

     IV post.   On January 20, 1992, the State issued a circular

     regarding transfer and posting of Class III and Class IV

     employees of Health Department and it was decided that the

     employees shall be decentralized at the District level. It was

     communicated that transfer and posting as far as possible

     shall remain within the jurisdiction of appointing officer.

     Clause 3 and 6 of the said circular reads as under:
ray technician, Physiotherapist, Occupational
                 Therapist, Ophthalmic Assistant, Broadcast
                 Trainer, Health Trainer, Dy. District Mass
                 Media Officer, Stenographer, Cholera Worker,
                 Special Cholera Worker, Movie Player etc.”
6. On the above basis, all the earlier orders
                 are superseded by the following order:
The powers conferred on Assistant Director in terms of clause

     13(c) of Chapter I of Bihar Health Manual empowers Assistant

     Director (Public Health) to appoint non-gazetted epidemic

     staff   like    Health    Assistants        and   Vaccinators      against

     sanctioned posts but only in case of emergency.                 A finding

     has been recorded in Ashwani Kumar that 2250 posts were

     sanctioned whereas 6000 appointments were made.                       The

     Tuberculosis eradication under the 20-Point Programme was

     not an emergency activity which may empower the Assistant

     Director to make large number of appointments but again

     such emergent powers could be exercised only in respect of

     sanctioned posts.

30) The exception in respect of appointing authority came with

     the circular dated December 3, 1980 which contemplated30that suitable candidates be selected as per requirement from

     common merit list by the competent authorities of Secretariat

     and attached offices; District Collector and equivalent Officer

     In charge of the Divisional Offices.      Dr. Mallick, Deputy

     Director in the subordinate offices of the Directorate of Health

     Services was not competent to make appointments against

     Category III or Category IV posts in view of the provisions of

     the Manual as also in terms of the circular dated December 3,

     1980 recorded by this Court in Ashwani Kumar as well.
31) Though, certain appointments have been made by Civil

     Surgeon which Mr. Mukherjee does not dispute as he was the

     competent authority but it is argued that none of the

     requirements to fill up the public post was adhered to.

     Appointments were made to the public posts without

     following any procedure and without there being any

     sanctioned post.

32) An argument was raised on behalf of learned counsel for the

     employees that some of the appointments have been made

     by Regional Deputy Director as four posts of Assistant

     Director were converted into that of Regional Deputy Director.

     We do not find any merit in the said argument. The post of

     Assistant Director was provided in the Directorate of Health

     Services with no delegation of appointment except in the

     case of emergency against sanctioned posts. Such Regional31Deputy    Director    has   not      been   conferred   power    of

     appointment against Class III and Class IV posts. Therefore,

     the   Assistant      Director     was   incompetent     to   make

     appointments      against   the    sanctioned   posts   except   in

     emergent cases and so is Regional Deputy Director.
33) In Ashwani Kumar, this Court has dealt with the

     appointments made against Class III and IV category posts in

     the Health Department itself. The reasoning recorded therein

     is that the appointments have been proved to be made not

     against the sanctioned posts and in a manner, which is wholly

     arbitrary, capricious and, therefore, employees will not get

     any right to seek regularisation of their services.
34) In Civil Appeal arising out of SLP (Civil) No. 20033 of 2012,

     the respondent was appointed by Dr. A.A. Mallick.            Such

     appointments have been found to be illegal by this Court in

     Ashwani Kumar.         We find that there is no reason to re-

     examine the appointments made by Dr. A.A. Mallick.           Such

     appointments have been adversely commented upon inAshwani Kumarcase. Therefore, no right will accrue in

     favour of the respondent.         Consequently, the appeal arises

     out of SLP (Civil) No. 20033 of 2012 is allowed and the order

    passed by the High Court is set aside.
35) Lastly, it is argued that employees have been working for

     many years, some for more than 25 years, therefore,

     humanitarian view should be taken to set aside the order of32termination and regularise their services so as to make them

      entitled to pension and other retirement benefits.
36) We do not find any merit in the said argument. A Full Bench

      of the High Court inRita Mishra & Ors. v. Director,

      Primary Education, Bihar & Ors.11while dealing with

      appointment in the education department claiming salary

      despite the fact that letter of appointment was forged,

      fraudulent or illegal, declined such claim. It was held that the

      right to salary stricto sensu springs from a legal right to

      validly hold the post for which salary is claimed. It is a right

      consequential to a valid appointment to such post. Therefore,

      where the very root is non-existent, there cannot subsist a

      branch thereof in the shape of a claim to salary. The rights to

      salary, pension and other service benefits are entirely

      statutory in nature in public service. Therefore, these rights,

      including the right to salary, spring from a valid and legal

      appointment to the post. Once it is found that the very

      appointment is illegal and is non est in the eye of law, no

      statutory entitlement for salary or consequential rights of

      pension and other monetary benefits can arise.
37) Such judgment of the Full Bench was approved by three Judge

      Bench of this Court in a Judgment reportedR. Vishwanatha

      Pillai v. State of Kerala & Ors.12. This Court held as under:
member Committee. 91 candidates have been found to be a

    case   of   irregular   appointment.       Such    candidates   are

    continuing in service. None of the candidates in the present

    set of appeals could point out that they were appointed in a

    manner meant for filling up of vacant post of public

    appointment i.e. by advertisement and by giving opportunity34to all eligible candidates to apply.

39) This Court inState of Jharkhand & Ors. v. Manshu

      Kumbhkar13, while allowing of the appeal of the State found

      that the respondent was not sponsored by the employment

      exchange. There was no advertisement and there was not

      even any properly constituted committee to make the

      selection.

40) This Court inState of Bihar v. Upendra Narayan Singh &

      Ors.14allowed the appeal of the State and thatSection 4of

      Employment       Exchanges      (Compulsory     Notification   of

      Vacancies) Act, 1959 casts a duty on the employer in every

      establishment in public sector in the State or a part thereof to

      notify every vacancy to the employment exchange before

      filling up the same.

41) This Court inUnion of India & Anr. v. Raghuwar Pal

      Singh15was examining a case, where the appointment letter

      came to be issued without approval of the competent

      authority, then whether such appointment letter issued to the

      respondent, would be a case of nullity or a mere irregularity?

      If it is a case of nullity, affording opportunity to the incumbent

13 (2007) 8 SCC 249
14 (2009) 5 SCC 65
15 (2018) 15 SCC 46335would be a mere formality and non-grant of opportunity may

      not vitiate the final decision of termination of his services.

      This Court held that in absence of prior approval of the

      competent authority, the Director Incharge could not have

      hastened issuance of the appointment letter. The act of

      commission and omission of the Director Incharge would,

      therefore, suffer from the vice of lack of authority and nullity

      in law.

42) InNidhi Kaim & Anr. v. State of Madhya Pradesh &

      Ors.16, a three Judge Bench was dealing with admission of

      students to MBBS Course on the basis of illegal and unfair

      admission process. The Court held as under:
“92.    …Having      given    our    thoughtful
                    consideration to the above submission, we
                    are of the considered view that conferring
                    rights or benefits on the appellants, who had
                    consciously participated in a well thought out,
                    and meticulously orchestrated plan, to
                    circumvent well laid down norms, for gaining
                    admission to the MBBS course, would amount
                    to espousing the cause of “the unfair”. It
                    would seem like allowing a thief to retain the
                    stolen property. It would seem as if the Court
                    was not supportive of the cause of those who
                    had adopted and followed rightful means.
                    Such a course would cause people to question
                    the credibility of the justice-delivery system
                    itself. The exercise of jurisdiction in the
                    manner suggested on behalf of the appellants
                    would surely depict the Court's support in
                    favour of the sacrilegious. It would also
                    compromise the integrity of the academic
                    community. We are of the view that in the
                    name of doing complete justice it is not
16 (2017) 4 SCC 136possible for this Court to support the vitiated
              actions of the appellants through which they
              gained admission to the MBBS course.

xx            xx           xx
94. …Even in situations where a juvenile
              indulges in crime, he has to face trial, and is
              subjected to the postulated statutory
              consequences. Law, has consequences. And
              the consequences of law brook no exception.
              The appellants in this case, irrespective of
              their age, were conscious of the regular
              process of admission. They breached the
              same by devious means. They must
              therefore, suffer the consequences of their
              actions. It is not the first time that admissions
              obtained by deceitful means would be
              cancelled. This Court has consistently
              annulled academic gains arising out of
              wrongful admissions. Acceptance of the
              prayer made by the appellants on the
              parameter suggested by them would result in
              overlooking the large number of judgments
              on the point. Adoption of a different course,
              for the appellants, would trivialise the
              declared legal position. Reference in this
              behalf may be made to the judgments relied
              upon by the learned counsel representing
              Vyapam.
108. …In the facts and circumstances of the
              case in hand, it would not be proper to
              legitimise the admission of the appellants to
              the MBBS course in exercise of the jurisdiction
              vested in this Court underArticle 142of the
              Constitution. We, therefore, hereby decline
              the above prayer made on behalf of the
              appellants.”
43) In another three Judge Bench judgment in Chairman and37Managing Director, Food Corporation of India & Ors. v.
Jagdish Balaram Bahira & Ors.17, the Court was examining

      the consequences of false caste certificate produced to seek

      appointment. The Court held as under:

45) In light of the above discussion, we find that the order dated

     July 12, 2011 or other similar orders passed by the High Court

     cannot be sustained in law and, thus, are set aside.                 The

     appeals filed by the State are allowed.
46) We do not find any error in the order of the High Court dated

     September 24, 2014, and, therefore, the appeals filed by the

     candidates against such order are dismissed.             The pending

     applications, if any, shall stand disposed of.
.............................................J.
                                                (L. NAGESWARA RAO)



                                 .............................................J.
                                                      (HEMANT GUPTA)
NEW DELHI;
OCTOBER 17, 2019.
39","Case, the employees were put in following three categories: 5 for short, ‘State Committee’7October 6, 2009 whereby, the report submitted by three. The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant. The Director of Health Services is the appointing authority in respect of all non- gazetted appointments in the department including the Subordinate Medical Service. The act of working against the prescribed procedure clearly means the violation of government orders, which is a matter of regret. In cast it is found that prescribed procedure has not been followed by the appointing. authority with regard to appointment on category 3 posts, then Government will have to take necessary action against. him. The powers of Assistant Director of. Health Services are Director of Public Health are as under: .”26 27) A circular was issued by the State on September 5, 1979 with appointment in. respect of Category III posts reads asunder: Officer of Scheduled Caste/Scheduled Tribe available in the. department will be the second member. In case no such officer is available, if the officer of that category is available in another department, then he will be included in the Committee. If even this27is also not possible, then Joint/Dy. Committee will be formed. The Court held as under. “92. High Court. order of three Judge Bench of this Court reported asAshwani Kumar & Ors. appointments and, in some cases, appointments were made years, therefore, the services are entitled to be reguarlised.”"
"Kamal Singh vs State Of Haryana on 29 July, 2010",https://indiankanoon.org/docfragment/43739226/?formInput=doctypes%3A%20supremecourt%20year%3A%202010,"Take notes as you read a judgment using ourVirtual Legal Assistantand get email alerts whenever a new judgment matches your query (Query Alert Service). Try out ourPremium Member Services--Sign up todayand get free trial for one month.
1.            Leave granted.

2.            Ten   persons   in   all,   Kamal   Singh   the   appellant 

            herein and his brothers, Randhir Singh, Attar Singh & 

            Baljeet Singh, Anees, son of Attar Singh, Ramrati wife 

            of   Kamal   Singh,   Maya   wife   of   Attar   Singh   and   Urmila 

            wife   of   Baljeet   Singh   along   with   two   others   were 

            brought   to   trial   for   offences   punishable   under 

            Sections   148,   302,   307,   149   for   the   first   eight 

            persons and for the other two underSections 420,467,468,471,120Band200of the IPC.  Of the ten persons 

            aforesaid,   only   Kamal   Singh,   the   appellant   was   armed 

            with  a   licensed  shot   gun  which   is  the   alleged  murder 

            weapon.     As   per   the   prosecution   story,   Wazir   Singh, 

            P.W. 7, resident of Village Khatiwas had two sons Phul 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE2Kumar   deceased   and   Anil   Kumar,   whereas   Sumer   Singh, 

            Rakesh   and   Chhatar   Singh   were   the   brothers   of   Wazir 

            Singh.   A piece of shamlat land in front of the house 

            of  Rakesh,   Ramesh  and   Sumer  Singh,   was  being   used  by 

            the latter to tether his cattle.   Kamal Singh's house 

            was   also   close   by.     On   the   9th  of   May,   2002,   Manti, 

            wife  of   Rakesh  was   tethering  her   cattle  in   this  plot 

            of   land   when   Ramrati   accused   hit   a   buffalo   with   a 

            stick   and also warned Manti not to tie the cattle at 

            that place. A quarrel soon ensued   but the matter was 

            ultimately settled.   On the 10th  of May, 2002 i.e., on 

            the   very   next   day,   at   about   6:00p.m.   the   appellant 

            armed   with   his   .12   bore   licensed   gun   along   with   the 

            other accused climbed up to the roof of his house and 

            started   abusing   the   complainant   party.     Wazir   Singh, 

            Sumer Singh, Abhimanyu son of Sumer Singh, Phul Kumar, 

            Maya   Ram   and   Chhatar   Singh     attempted   to   pacify   him 

            but   without   success.   On   the   contrary,   Randhir   Singh, 

            Baljeet Singh and Attar Singh raised a lalkara calling 

            upon   the   appellant   to   sort   out   the   other   party   once 

            and for all.   The appellant thereupon fired a shot at 

            Phul Kumar into the left side of his chest on which he 

            fell down and as Randhir Singh and Chhattar Singh came 

            forward   to   assist   Phul   Kumar,   the   appellant   again 

            fired two shots hitting them as well.  All the accused 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE3also hurled brick bats and caused several injuries to 

            the witnesses and as Maya Ram, Indrawati and Phulwati 

            came   forward   to   rescue   the   injured,   the   appellant 

            again   fired   from   his   gun   hitting   them   as   well.     On 

            hearing the sound of the gun shots a number of persons 

            rushed to the spot on which all the accused came down 

            from the roof and ran away. They also found that Phul 

            Kumar   and   Maya   Ram   had   died   of   their   injuries. 

            Chhattar   Singh   and   Indrawati   were,   however,     shifted 

            to the PGI, Rohtak whereafter Wazir Singh PW 7, lodged 

            a   report   at   police   station     Sadar,   Dadri.     Chhattar 

            Singh also died a short time later.   The accused were 

            arrested   over   several   days   and   on   the   statement   made 

            by   the   appellant,   the   weapon   of   offence   i.e.,   his 

            licensed shot gun along with some catridges was taken 

            into   possession.                               On   the   completion   of   the 

            investigation, the accused were brought to trial.  The 

            trial   court   relying   primarily   on   the   statements   of 

            P.W. 7-Wazir Singh and PW 16 - Indravati and PW 17 - 

            Ravinder, injured   and PW - 18 Umed Singh   convicted 

            and sentenced  eight of the accused viz., Kamal Singh, 

            Randhir   Singh,   Baljeet   Singh,   Attar   Singh,   Ramrati, 

            Mayaram, Urmila and Anil for offences punishable underSections   148,302,307read   withSection   149of   the 

            IPC and also for the offence punishable under Section 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE427   of   theArms   Actwith   respect   to   the   appellant. 

            Urmila, Dr. Surya Prakash Singh and Ram Chander were, 

            however, given the benefit of doubt and were acquitted 

            of all charges levelled against them.

3.            An   appeal   was   thereafter   taken   to   the   High 

            Court.    The  High   Court  acquitted   all  but   the  present 

            appellant on the plea that no injuries had been caused 

            by any of them which revealed that their common object 

            was   not   to   cause   the   death   of   anybody   and   it   also 

            appeared   that   the   entire   family   of   the   appellant   had 

            been   implicated   for   reasons   of   enmity.     The   plea 

            raised   by   the   appellant   that   his   case   fell   within 

            Exception   II   to   Section   300   was   repelled   for   the 

            reason   that   there   was   no   evidence   to   show   that   the 

            conduct of the complainant party had resulted in some 

            apprehension   in   his   mind   of   serious   injury   at   their 

            hands   and   the   story   that   he   had   been   first   attacked 

            with brick bats and lathis could not be believed as he 

            had no injuries on his person.

4.            Mr.   Sushil   Kumar,   the   learned   senior   counsel, 

            has confined his submission only to the plea that the 

            appellant   had   exceeded   the   right   of   private   defence 

            although it has also been submitted that as there was 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE5no   charge   under   Section   302   simplicitor   against   the 

            appellant,   he   could   in   fact   claim   an   outright 

            acquittal.   The learned counsel has submitted that in 

            the   circumstances   he   would   not   go   into   the 

            technicalities of the matter and confine himself only 

            to   the   benefit   of   Exception   II   to   Section   300.     The 

            learned counsel has brought to out notice the findings 

            of  the   trial  court   in  this   matter  which   we  reproduce 

            hereunder:
It has been pointed out that even as per the findings 

            of the trail court a case of exceeding   the right of 

            private   defence   was   clearly   made   out   and   the 

            appellant,   was   therefore,   liable   to   be   convicted   and 

            sentenced   under   Section   304   Part   I   ofIPCand   not 

            Section 302 thereof.

5.            Mr.   Rao   Ranjit,   the   learned   counsel   for   the 

            State has however, pointed out that the very basis of 

            the  argument   made  by   Mr.  Sushil   Kumar  was   lacking  as 

            there was no evidence to indicate that any attack had 

            been  made   on  the   appellant  as   there  were   no  injuries 

            on his person and the story that the door of his house 

            had   been   broken   by   the   complainant   party   was 

            fallacious   as   there   was   no   evidence   to   that   effect. 

            He   has,   further,   submitted   that   the   appellant   had, 

            without   any   basis   and   without   any   apprehension   of 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE7injury, caused the death of three persons.
6.            We   have   heard   and   considered   the   arguments 

            advanced by the the learned counsel.

7.            As   per   the   appellant's   defence   given   in   his 

            examination underSection 313Cr.P.C. he was returning 

            from Siwani i.e. his place of employment and was going 

            towards his house carrying his licensed gun and as he 

            was   passing   by   the   house   of   Ramesh,   he   had   been 

            encircled   by   the   complainant   party   and   at   that   time 

            Phul Kumar had tried to give him a lathi blow on which 

            he   had   fired   one   shot   from   his   gun   killing   him.     He 

            further stated that he had then run to his own house 

            and   closed   the   door   but   the   complainant   party   had 

            attempted   to   break   open   the   door   on   which   he   had 

            rushed   to   the   roof   and   fired   several   shots   in   self 

            defence   resulting   in   two   deaths   and   some   injuries   to 

            the witnesses as well.

8.            In this situation we are called upon to examine 

            which of the two theories is correct.

9.            We notice that there are three deceased in this 

            matter.   As per the admitted position   the injury on 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE8Phul Kumar had been inflicted from a very short range 

            whereas the injuries to the others had caused from the 

            roof   of   the   house   which   would   be   8   to   10   feet   high. 

            This   fact   is   verifiable   from   the   medical   evidence   as 

            well.     The   post   mortem   examination   of   Phul   Kumar's 

            body   revealed   a   rat   hole   injury   1""   X   .75""   with 

            inverted  margins   and  tattooing   and  lacerations   around 

            it.   It is evident from this injury that the pellets 

            had   entered     the   body     enmasse   and   had   exited   from 

            injury   no.2     on   the   rear   side   of   the   body   as   the 

            margins were everted.  The premise that the injury had 

            been   caused   from   virtually   point   blank   range   is 

            supported   by   the   observations   made   in   Modi's   Medical 

            Jurisprudence   and   Toxicology,   Twenty   Third   Edition, 

            under   the     Chapter   'Injuries   by   Mechanical   Violence' 

            at pp.722:-
10.           We further see that PW 12 Dr. U.S. Sisodia who 

            had performed the post mortem examination on the deadbody   also   opined   that   in   that   the   injury   No.   1appeared   to   have   been   caused   by   a   single   projectile 

            from   a   very   close   range.     It   is   nevertheless   the 

            admitted   position   that   the   weapon   used   by   the 

            appellant was his licensed shot gun is even otherwise 

            proved   as   pellets   had   been   recovered   from   the   dead 

            body   of   Maya   Ram.     The   doctor,   therefore,   obviously 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE10mistook a shot fired from point blank range, as being 

            from   a   single   projectile.     When   a   comparison   of   the 

            injuries  on   Phul  Kumar's   body  with   those  on   the  dead 

            bodies of the other two victims ie. Chhattar Singh and 

            Maya Ram is made it stands revealed that they had been 

            shot   from   a   distance   of   10   to   12   feet   which   is   the 

            appellant's   defence.     Admittedly,   in   the   case   of 

            Chhattar   Singh   also     there   appears   to   be   blackening 

            around the wounds but the distance is definitely much 

            greater   than   that   in   the   case   of   Phul   Kumar   as   the 

            dispersal   of   pellets   would   show.     Likewise,   in   the 

            case of Maya Ram, there were multiple pellet injuries 

            but   no   blackening   or   scorching   and   on   dissection 

            several   pellets   had   been   located.     To   our   mind, 

            therefore,   the   story   projected   by   the   appellant   that 

            the   injury   caused   to   Phul   Kumar   was   at   ground   level 

            and   from   a   very   short   distance   when   he   had   been 

            attacked   by   him   and   that   the   injuries   to   the   others 

            had   been   caused   when   he   had   fired   from   the   roof,   is 

            supported   by   the   medical   evidence.     There   is   yet 

            another     circumstance   which   to   out   mind   goes   to   the 

            root of the matter.   The positive finding of the High 

            Court   is   that   the   story   that   the   accused   party   had 

            gone   to   the   roof   and   thrown   brickbats   at   the 

            complainant   party   was   incorrect   and   it   is   on   that 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE11basis   that   seven   of   the   accused   had   been   given   the 

            benefit of doubt and acquitted.  The photographs which 

            have   been   produced   on   record   by   the   prosecution, 

            however,  clearly show the presence of  a large number 

            of brick bats lying around the house belonging to the 

            appellant.     The   prosecution   story,   therefore,   with 

            regard to the brick bats having been disbelieved, the 

            possibility that the story projected by the appellant 

            could   be   the   correct   one,   cannot   be   ruled   out.     We 

            also   notice   from   the   record   including,   the   FIR   that 

            there   is   no   reference   whatsoever   to   the   pelting   of 

            stones by the accused.

11.           In   a   matter   relating   to   the   right   of   private 

            defence   or   exceeding   the   right   of   private   defence 

            some element of guess work based on common experience 

            has indeed to come into play and it is for that reason 

            that the Courts have gone so far as to rule that even 

            though an accused may not stake a claim to the right 

            of   private   defence,   the   Court   can   still   give   the 

            benefit if it emanates from the evidence.  In the case 

            of a claim to the benefit of Exception II we feel that 

            it is impossible to accept that a person who has been 

            attacked, and in this case by several persons to know 

            exactly where and when to stop and to use a hackneyed 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE12expression,   the   evidence   cannot   be   weighed   in   golden 

            scales.    The  claim   to  this   Exception  is   also  perhaps 

            the most risky and tenuous for an accused, although it 

            is   often   the   most   appropriate   one.     The   advice 

            tendered   by   an   experienced   defence   counsel   is 

            invariably   ignored   in   favour   of   that   of   the     co-

            prisoners who act as untrained legal advisors and warn 

            an   accused   against   taking   such   a   plea.   The   defence 

            version   given   by   the   appellant   is   that   he   had   been 

            attacked by half a dozen persons and he had managed to 

            save himself as he was carrying his gun which he had 

            used with telling effect.  The trial court has given a 

            somewhat unusual explanation  by saying that though it 

            could   be   a   case   of   exceeding   the   right   of   private 

            defence   but   the   benefit   could     not   be   given   to   the 

            appellant, the suggestion being that the gun ought to 

            have been used not as a weapon but as a lathi.   With 

            great respect, to the learned judge, this observation 

            belies logic and is absurd.  It cannot be ignored that 

            the  appellant   was  a   Commando  and   an  ex-member   of  the 

            National   Security   Guard   and   had   been   trained   in   the 

            use of weapons, and was at the relevant time employed 

            as a security guard in a bank premises and to expect a 

            person like him when attacked, and that too by six or 

            seven persons, to cover in fear and to use the weapon 


CRL.A. NO.      OF 2010 @ SLP(CRL.) 3244 OF 2009                                                                         REPORTABLE13as a lathi, cannot be countenanced.

12.           We   are,   accordingly,   of   the   opinion   that   Mr. 

            Sushil   Kumar's   plea   that   the   appellant   had   exceeded 

            the   right   of   private   defence   must   be   accepted.     We 

            make an order in the above terms and allow the appeal 

            to   this   limited   extent.     We   also   direct   that   the 

            conviction against the appellant be modified from one 

            under   Section   302   to   304   Part   I   and   the   sentence   is 

            also   modified   from   life   to   ten   years   rigorous 

            imprisonment;   all   other   parts   of   sentence   being 

            maintained as it is.

..........................J
                                                                     [HARJIT SINGH BEDI]





                                                                      .........................J
                                                                      [CHANDRAMAULI KR. PRASAD]

           NEW DELHI
           JULY 29, 2010.
","Ten persons in all, Kamal Singh the appellant of Kamal. Singh, Maya wife of Attar Singh and Urmila KamalSingh's house stick and also warned Manti not to tie the cattle at other accused climbed up to the roof of his house and upon the appellant to sort out the other party once. The appellant thereupon fired a shot at hearing the sound of the gun shots a number of persons Kumar and Maya Ram had died of their injuries. by the appellant, the weapon of offence i.e., his and sentenced eight of the accused viz., KamAl Singh, appellant on the plea that no injuries had been caused reason that there was no evidence to show that the apprehension in his mind of serious injury at their to the benefit of Exception II to Section 300. It is evident from this injury that the pellets appellant was his licensed shot gun is even otherwise injuries on Phul Kumar's body with those on the dead case of Maya Ram, there were multiple pellet injuries. Court is that the story that the accused party had appellant. The suggestion being that the gun ought to Sushil Kumar's plea that the appellant had exceeded. The injury caused to Phul. Kumar was at ground level and the injury to Maya Ram was at the ground level. The court said there were no injuries on his person and the story was that the door of his. house and closed the door but the complainant party had defence resulting in two deaths and some injuries to roof of the house."
"The State Of Bihar And Anr vs Amit Kumar @ Bachcha Rai on 20 April, 2017",https://indiankanoon.org/docfragment/20784982/?formInput=doctypes%3A%20supremecourt%20year%3A%202017,"Take notes as you read a judgment using ourVirtual Legal Assistantand get email alerts whenever a new judgment matches your query (Query Alert Service). Try out ourPremium Member Services--Sign up todayand get free trial for one month.
Leave granted.
This criminal appeal is filed by State of Bihar against the  final  judgment
and order dated 14.02.2017 passed in Criminal  Miscellaneous  No.  53391  of
2016, by the High Court of Judicature at Patna, wherein the High  Court  has
passed following order:
[20]Nimmagadda Prasad v. CBI, (2013) 7 SCC 466;Y.S. Jagan Mohan
Reddy v. CBI, (2013) 7 SCC 439.
-----------------------
REPORTABLE","This criminal appeal is filed by State of Bihar against the final judgment passed in Criminal Miscellaneous No. 53391 of 2016. The High Court of Judicature at Patna has passed the following order: Nimmagadda Prasad v. CBI,  7 ;Y.S. Jagan Mohan meticulouslyReddy v. FBI, 7. The appeal is being heard by the Supreme Court of India, which is expected to hear the case in the next few days. If the appeal is successful, the appeal will be heard in the Supreme court of India in the coming weeks. If it is unsuccessful, the case will be returned to the Bihar High Court, which will hear the appeal in the following weeks. The case is currently being heard at the Court of Appeal in Patna, India, and the hearing is scheduled to last until the end of the next week. The hearing is adjourned until the next day at 10:30 a.m. (GMT) and will resume at 11:30 p.m (GMT). The appeal has been adjourned pending the outcome of the hearing, and it is expected that the court will rule on the appeal within the next two days. The court will then rule on whether or not the appeal should be dismissed, and if so, on how to proceed. The decision will be made at a later date, and will be delivered to the State Court of Patna. The State Court will then make a decision on whether the appeal can proceed or not."
"Khoday Distilleries Ltd. (Now Khoday ... vs Sri Mahadeshwara Sahakara Sakkare ... on 1 March, 2019",https://indiankanoon.org/docfragment/127522483/?formInput=doctypes%3A%20supremecourt%20year%3A%202019,"Take notes as you read a judgment using ourVirtual Legal Assistantand get email alerts whenever a new judgment matches your query (Query Alert Service). Try out ourPremium Member Services--Sign up todayand get free trial for one month.
A.K. SIKRI, J.
Leave granted.

2)     Question of law in both these appeals is identical. However, factsSignature Not Verifiedof the Civil appeal arising out of Special Leave Petition (Civil) No.Digitally signed by490 of 2012 are noted for discussion, as in this case, order dated
DEEPAK SINGH
Date: 2019.03.02
12:59:53 IST
Reason:
Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr.              Page 1 of 27
7)     This review petition has been dismissed by the High Court vide

       orders dated September 09, 2011, inter alia, with the following

       observations:
Revenue Divisional Officer Officer and Another 4, this Court

       held that it will make no difference whether the review petition

       was filed in the High Court before the dismissal of the special

       leave petition or after the dismissal thereof. In either case, the

       doctrine of merger would apply, even when the special leave

       petition is dismissed in limine, which will bar the filing of the

       review petition before the High Court when the special leave

       petition is dismissed.
3   (2010) 8 SCC 383
4   (2011) 4 SC 602Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr.           Page 8 of 27
13)     As against the aforesaid view, there is another line of cases

        holding that review petition is maintainable if no leave has been

        granted to file an appeal and there is dismissal of the special

        leave petition at the preliminary stage itself. These cases have

        taken a view that a preliminary stage does not constitute a

        binding precedent and, therefore, doctrine of merger would not

        apply. These cases are Palani Roman Catholic Mission v. S.

        Bagirathi Ammal5,Bhakra Beas Management Board v.

        Krishna Kumar Vij and Another6.

14)     After taking note of the aforesaid judgments, the reference order

        in the instant case makes a remark about the nature of conflict

        between them, which is noted in paragraph 11 of the judgment

        and is reproduced below:
State of Kerala and Others7, which is again a two Judge Bench.

        Though in this case situation was not where review petition was
5   (2009) 16 SCC 657
6   (2010) 8 SCC 701
7   2018 (11) Scale 141Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr.        Page 9 of 27filed after the dismissal of the special leave petition, at the same

       time, dismissal of the special leave petition in limine was

       explained to mean that it was still a decision on merits by this

       Court.

16)    Having stated the manner in which the issue is dealt with in

       various judgments noted above, it would be apposite to first

       discuss the lawlaid down inAbbai Maligai Partnership Firm as

       well as Kunhayammed’s cases since both the judgments are

       rendered by three Judges’ Bench. Therefore, it is to be seen, in

       the first instance, as to whether they project conflicting views.
17)    Abbai Maligai Partnership Firm was a case under theRent

       Control Actand the appeal came from the High Court of Madras.

       In an eviction petition filed by respondent Nos. 1 and 2 in the said

       case, the Rent Controller had ordered eviction of the appellants

       therein on the ground of wilful default in payment of rent as well

       as on the ground of bona fide requirement of the premises by

       respondent Nos. 1 and 2 for their own business. In appeal, the

       order of the Rent Controller was set aside as it was found that

       there was a bona fide dispute with regard to the title of the

       property which could be decided by the Civil Court.                 The

       respondents preferred review petitions thereagainst, which wereCivil Appeal arising out of SLP (C) No. 490 of 2012 & Anr.       Page 10 of 27dismissed. They approached this Court by way of special leave

       petitions which were also dismissed. After the dismissal of these

       special leave petitions, the respondents therein filed review

       petition in the High Court with a delay of 221 days. The High

       Court condoned the delay and also entertained the review petition

       on merits and not only allowed those review petitions but even

       reversed the orders made earlier in the civil revision petitions by

       allowing those petitions and ordering eviction of the appellants/

       tenants.       In appeal against this order passed in review and

       revision petitions, this Court held that the jurisdiction exercised by

       the High Court, under the circumstances, was palpably

       erroneous. Entire discussion in this behalf is contained in one

       paragraph, which we reproduce below:
obstante clause and conveys a message that even in the field

       covered by the preceding articles, jurisdiction conferred byArticle

       136is available to be exercised in an appropriate case. It is an

       untrammelled reservoir of power incapable of being confined to

       definitional bounds; the discretion conferred on the Supreme

       Court being subjected to only one limitation, that is, the wisdom

       and good sense or sense of justice of the Judges. No right of

       appeal is conferred upon any party; only a discretion is vested in

       the Supreme Court to interfere by granting leave to an applicant

       to enter in its appellate jurisdiction not open otherwise and as of

       right.

20)    Exercise of jurisdiction underArticle 136and the manner in which

       it is dealt with is clarified as under:
Indian Oil Corpn. Ltd. v. State of Bihar, (1986) 4 SCC 146;Rup Diamonds v. Union of India,
    (1989) 2 SCC 356; Wilson v. Colchester Justices, (1985) 2 All ER 97 (HL); Supreme CourtEmployees' Welfare Assn. v. Union of India, (1989) 4 SCC 187;Yogendra Narayan Chowdhury
    v. Union of India, (1996) 7 SCC 1; V.M. Salgaocar & Bros.(P) Ltd. v. CIT, (2000) 5 SCC 373;
    Sree Narayana Dharmasanghom Trust v. SwamiPrakasananda, (1997) 6 SCC 78 and State of
    Maharashtra v. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463.9Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195;Abbai Maligai Partnership
    Firm v. K. Santhakumaran, (1998) 7 SCC 386;Shankar Ramchandra Abhyankar v. Krishnaji
    Dattatreya Bapat, (1969) 2 SCC 74;Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774;Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4 SCC 447;Junior Telecom Officers
    Forum v. Union of India, 1993 Supp (4) SCC 693 and Supreme CourtEmployees' Welfare Assn.Case, (1989) 4 SCC 187.
Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr.                        Page 17 of 27
(iii) Leave granted - dismissal without reasons - merger results 10.
22)    It may be pertinent to mention here that while laying down the

        second principle mentioned above, the Court took note of the

        judgment in Abbai Maligai Partnership Firm and discussed it in

        the following manner:
10Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC 1372.Civil Appeal arising out of SLP (C) No. 490 of 2012 & Anr.            Page 18 of 27
23)    It may also be of interest to note that the Court dealt with the

       situation where the review is filed earlier in point of time and the

       special leave petition is filed thereafter, and dealt with the

       situation in the following manner:
Civil Appeal arising out of Special Leave Petition (Civil) No.

       13792 of 2013: In this case, we find that the special leave petition

       was dismissed with the following order passed on January 05,

       2012:","Review petition has been dismissed by the High Court vide Though in this case situation was not where review petition was 5  16 6  8 7 2018 (11) Scale 141Civil Appeal arising out of SLP (C) No.490 of 2012 are noted for discussion. It may also be of interest to note that the Court dealt with the situation in the following manner: Civil Appeal arising. out of Special Leave Petition (Civil) no. 490 of 2012. In this case, the Rent Controller had ordered eviction of the appellants petitions which were also dismissed. special leave petitions, the respondents therein filed review In appeal against this order passed in review and special leave petition is filed thereafter, and dealt with with the 13792 of 2013: In this. case, we find that the special. leave petition was filed before the dismissal of the special doctrine of merger would apply, even when the special leave review petition. granted to file an appeal and there is dismissal of a special Page 9 of 27filed after the dismissal. of thespecial leave petition, at the same Court. The. factsSignature Not Verified of the Civil appeal arising out. of Special leave Petition ( civil)No.490  are noted. for discussion, as in this Case, order dated was filed in the High. Court before the dismissed special leave. review petition would apply. The appeal was filed after the. dismissal of. the special Leave review petition before the High court when theSpecial Leave petition is dismissed."