Revealed: The British towns where one worker in two is a migrant

The workforce in large parts of London is dominated by people born abroad – despite Labour’s repeated promises to deliver ‘British jobs for British workers’.

But foreign-born employees also have a strong foothold in other British towns and cities, from Slough and Reading to Manchester.

Campaigners said the focus of employers and Whitehall should be on finding jobs for the young Britons out of work in many of these areas.
And last night, immigration minister Damian Green said: ‘This shows why we need a limit on work visas as well as a better trained British workforce.

A map today reveals parts of Britain where more than half of jobs are held by workers who were born overseas.

'British workers need to be able to benefit and take the jobs available.’

The most startling figures, based on information from the Office for National Statistics, relate to Newham – the East London borough hosting the 2012 Olympics.
Here, almost seven in every ten jobs are filled by workers who were not born in the UK – or 65,100 out of 93,700 posts. Many of the jobs are on the Olympic site itself.

The number of British-born people in Newham who are not in work is 25,600. This is a combination of the unemployed and those classed as ‘economically inactive’, such as students and the long-term sick.

There are six local authority areas where more than 50 per cent of the jobs are filled by migrant workers – and a further 18 where those born outside the UK take up more than one in every three jobs.

Outside London, the areas where the biggest proportion of jobs are taken by immigrants are Slough, Leicester, Luton, Reading, Cambridge, Manchester and Oxford.

Crawley, in West Sussex, and Elmbridge, in Surrey, are also at the top of the list.

Many overseas workers in places such as Slough and Reading are Eastern Europeans who do not need work permits.

Experts say this makes it more important for the Government to impose a strict cap on non-EU migrants in an attempt to bring the total number of foreign workers under control.

The coalition unveiled an interim cap this week, along with a plan to make employers provide non-EU migrants with private healthcare to ease pressure on the NHS.

The final level of the cap will be decided later this year.
Alp Mehmet, of MigrationWatch, said: ‘Where there are gaps in the UK labour market we should be filling them from the UK population.

‘There is a laxness and a looseness about the way people are allowed in. What we want is closer control.’

The area with the smallest proportion of foreign-born workers is Newark and Sherwood, in Nottinghamshire, at 1.5 per cent.
Under Labour more than 1.1million jobs – half the total created – were taken by non-EU immigrants requiring work permits, according to the independent House of Commons Library.

In October 1997, British-born workers made up 92.5 per cent of the workforce. By 2009, this had fallen to 87.1 per cent.

HC seeks details of disabled candidates joining IIMs

MUMBAI: The Bombay high court on Monday sought details of the seats reserved for disabled candidates in Indian Institutes of Management across India and the number of such candidates admitted during the current academic year.

Hearing a petition filed by a city-based TYBcom student Rahul Girreddy, who dragged the IIMs to court, a division bench of Chief Justice Mohit Shah and Justice S C Dharmadhikari has given IIM-Ahmedabad time till July 6 to submit the details.

Girreddy (20), a student of R A Poddar College, suffers from a speech disability, and had passed the CAT for admissions to IIM this year. According to the petition, the institutions were not implementing the Persons with Disabilities (PD) Act, which reserves 3% of the seats for disabled candidates.

Of the 2,000 seats available in the IIMs across the country, around 70-90 are reserved for disabled candidates. The lawyer representing Girreddy claimed that this was not adhered to and hence, disabled candidates were not benefiting from the scheme.

The Union government's counsel told the court that the IIMs were autonomous institutions and so the Centre did not have control over them. It was, however, pointed out that the IIMs received 100% grant from the government and were supposed to implement the reservation rule.

IIM-A, in an affidavit, pointed out that they had filled all the seats reserved for disabled students. The court then asked them for the details of other IIMs. The judges also indicated that the issue of whether the Bombay high court had jurisdiction to hear the case would have to be gone into, since there is not a single IIM in Maharashtra.

Thousands of highly skilled Indian professionals will not be able to take up jobs in Britain

LONDON: Thousands of highly skilled Indian professionals will not be able to take up jobs in Britain after the David Cameron government on Monday announced a limit of 24,100 for non-European Union professionals to be allowed until April 2011.

Once the limit of 24,100 is reached, no other Indian or other non-EU professional will be able to take up jobs in Britain.

The controversial annual limit was announced by Home Secretary Theresa May today.

The annual limit is part of the agreement between the Conservative and Liberal Democrats parties, but is likely to be opposed by influential groups such as the High Skilled Migrants Forum.

Indian professionals are among the highest non-EU groups who migrate to Britain to take up jobs in IT, medicine, services and education sectors.

The limit is part of the coalition government's promise to curb immigration to the levels of the 1990s: 'to tens of thousands rather than hundreds of thousands'.

"Introducing a limit on migrants from outside Europe coming here to work is just one of the ways the government intends to achieve this," an official spokesman said.

Details of how the final limit will be delivered will be agreed following a 12-week consultation with trade and industry.
In the meantime, an interim limit will be introduced to ensure there is no rush of applications and the number of work visas issued stays below 2009 levels, he said.

The results of the consultation on the permanent limit will pave the way for fundamental changes to the way in which workers from outside the EU will be chosen to come and work in the UK.

The home secretary also asked the Migration Advisory Committee, the Government's independent adviser on migration issues, to launch a separate consultation into what level the limit should be set at, taking into account social and economic impacts.

"This government believes that Britain can benefit from migration but not uncontrolled migration," May said, adding "I recognise the importance of attracting the brightest and the best to ensure strong economic growth, but unlimited migration places unacceptable pressure on public services".
She underlined the need to have an interim measure to avoid a rush of applications for migrants.

"While we consult on our tough new limit it's important we have an interim measure to avoid a rush of applications for migrants and ensure that the number of work visas issued stays below 2009 levels," May said. Permanent limits on non-EU economic migration routes will be put in place by 1 April 2011.

MANAM SARAWATI SAMPOORNA KALAVATHI & ORS v. MANAGER,APSRTC & ANR. [2010] INSC 227 (26 March 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2325 OF 2010 (Arising out of SLP(C) No. 1439/2009)

Manam Saraswathi Sampoorna Kalavathi & Ors. ....Appellants

Versus

The Manager APSRTC, Tadepalligudem A.P. & Anr. ....Respondents

DALVEER BHANDARI, J.

1. Delay condoned. Leave granted.

2. The brief facts which are necessary for disposal of this appeal are recapitulated as under:

The deceased was an engineering graduate working as a Branch Manager in Fancy Traders Company at Bangalore. He had gone to Velpucharla from Bangalore on the eve of Sankranti festival.
On 11.1.1993 at about 11.00 a.m., the deceased, namely, Manam Yasovardhana, along with one Tummala Nageswara Rao had gone to Gannavaram Village on the scooter bearing No. AP-16-D-699.
In the evening, they were returning to Velpucharla and when they reached the District Electrical Stores, Vatluru, N.H.5 road at about 6.30 p.m. while the deceased was driving the scooter on the left side of the road slowly and cautiously, the driver of the APSRTC bus bearing No. AP-Z-1247 drove in a rash and negligent manner without blowing horn and while proceeding towards Eluru hit the scooter from behind, as a result of which the deceased who was driving the scooter died on the spot and the pillion rider Tummala Nageswara Rao fell down and sustained injuries. The accident took place because - 2 - of rash and negligent driving of the driver - Respondent No.2, P. Chittirama Raju of the APRRTC bus bearing No.AP-Z- 1247.
3. The mother, father and sisters of the deceased filed a joint claim petition, being Original Petition No.451/1993 under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accidents Claims Tribunal, West Godavari District, Erulu, A.P. The Tribunal, after taking into consideration the pleadings of the parties, framed the following issues:
(i) Whether the accident occurred due to rash and negligent driving of the bus driver - 1st Respondent (respondent no.2 herein) and dashed against the scooter bearing No. AP-16-D-699 being driven by the deceased.
(ii) Whether the petitioners (appellants herein) are entitled to claim any compensation? If so, to what amount and against which of the respondents?
4. While dealing with Issue No.(i), the Tribunal stated that it is the specific evidence of PW-2, pillion rider of the scooter driven by the deceased Yasovardhana that on 11.1.1993 while returning to Eluru when they reached the District Electrical Stores, Vatluru, at about 6.30 p.m., the APSRTC bus bearing No. AP-Z-1247 which was being driven by P.
Chittirama Raju, respondent No.2 herein, dashed the scooter from behind and the deceased and the scooter fell down, resulting into the death of the deceased on the spot.
5. It may be pertinent to mention herein that PW-2 clearly stated that the deceased was driving the scooter slowly and cautiously on the left side of the road and the bus driver was driving the bus in a rash and negligent manner without blowing horn and while proceeding towards Eluru, dashed the scooter from behind.
- 3 -
6. The incident took place on 11.1.1993 at 6.30 p.m. and the first information report was lodged at 8.00 p.m. on the same day. The post-mortem certificate revealed that the deceased died because of the multiple injuries and the injury on the vital part of the brain led to multiple fracture of vault and base of skull and due to haemorrhage and shock.
7. The Tribunal accepted the testimony of PW-2 - pillion rider and clearly found that the deceased died because of the rash and negligent act of the driver of the APSRTC bus.
8. Regarding issue No. (ii) which is about the claim of compensation, the appellants had claimed a compensation of Rs. 4 lakhs on the ground that the age of the deceased was 24 years on the date of accident and was getting Rs.5,000 per month. The Tribunal, relying on the certificate issued by the Chartered Accountant, Pondicherry, stated that the deceased got Rs.60,000/- towards salary and commission during the financial year 1991-92 and Rs.50,000/- from 1.4.1992 to 31.1.1993. The accident took place on 11.1.1993. This certificate shows that the total salary and commission for the ten months i.e. from 1.4.1992 to 31.1.1993 was Rs.50,000/-. Therefore, the gross earnings of the deceased was around Rs.5,000/- per month from salary and commission.
Out of this sum, if 1/3rd is deducted then the net contribution will be Rs.3,334/- per month which would work out to be Rs.40,008/- per annum. The Tribunal took a round figure of Rs.40,000/- and applied the multiplier of 16.
According to the Tribunal, the total amount would work out to Rs.6,40,000/-. Since the amount was to be paid in lump sum, a further deduction of 25% was made and after deduction the remaining payable amount was Rs.4,80,000/-. Since the appellants had claimed only Rs. 4 lakhs, the Tribunal restricted the total compensation at Rs.4 lakhs.
- 4 -
9. The Tribunal also took into consideration the age of the mother of the deceased, which was 47 years at that time and applying the multiplier of 13, the amount of compensation worked out to be Rs.3,90,000/- which is short by Rs.10,000/- of the total amount claimed. Even assuming that the multiplier of 16 was wrongly applied by the Tribunal, the Tribunal also calculated the amount of compensation by taking into consideration the age of the mother of the deceased, which was 47 years at that time, and applying the multiplier of 13, which worked out to be almost the same amount.
Therefore, the Tribunal awarded the compensation of Rs.4 lakhs towards loss of future earnings or loss of dependency plus Rs.2,000/- towards the funeral expenses in this case.
The Tribunal further directed that the appellants would be entitled to interest at the rate of 12% per annum on the amount of compensation from the date of application till the date of realization.
10. The Manager of the APSRTC - the 1st respondent herein, preferred an appeal before the High Court of Judicature, Andhra Pradesh at Hyderabad, under Section 173 of the Motor Vehicles Act, 1988, against the judgment of the Tribunal.
The High Court relied on the first information report and, in paragraph 8 of the impugned order, mentioned that the first information report was lodged at 8.00 p.m. on 11.1.1993 and that the deceased died due to the rash and negligent driving of the APSRTC bus.
11. The High Court strangely observed that the motor vehicle inspector inspected the bus of the APSRTC at Taluq Police Station on 12.1.1993 at about 3.30 p.m. and did not find any damage or blood stains on the tyres of the bus and that the efficiency of foot brake of the bus was good and its action was even.
- 5 -
12. The High Court while evaluating the evidence of PW-2 has observed that when according to PW-2, he was thrown away into the bushes then how could he see the number of the bus? This is not explained by PW-2. It is further mentioned that it is not even the case of PW-2 that he had filed any claim petition seeking compensation for the injuries received by him in the accident. So the evidence of PW-2 that he could note the number of the bus that sped away, is difficult to be believed or accepted. The High Court further observed that if the bus was being driven at a high speed and on dashing against the scooter from behind, there should be a dent at least on the front or side portion of the body of the bus, but there was no damage to the bus.
13. The approach of the High Court in evaluating the evidence of PW-2 is entirely erroneous. How could the evidence of PW-2 be discarded on the ground that after sustaining minor injuries he did not file a claim petition? This cannot be an appropriate manner of appreciating the evidence. When no question was asked in the cross- examination, then how PW-2 could be expected to give reply to the question? The High Court by adopting erroneous method of scrutinizing the evidence has discarded the evidence of PW-2.
14. The High Court further observed in the impugned judgment that the possibility of the deceased, while driving the scooter at a high speed, falling down and sustaining head injury cannot be ruled out. This finding is totally contrary to the record of this case. PW-2 has categorically stated in his evidence that the deceased was driving slowly and cautiously on the left side of the road and the driver of the bus was driving the bus in a rash and negligent manner without blowing horn.
- 6 -
15. The High Court further observed that significantly the driving license of the deceased was not produced. So the possibility of the deceased not possessing a driving licence, and his falling down due to lack of experience and sustaining the head injury cannot be ruled out. There is no basis, logic and rationality in arriving at this conclusion.
16. The High Court was totally unjustified in weaving out a new case which is not borne out from the evidence on record. Similarly, the High Court erroneously observed that the possibility of respondent Nos.1 to 5 (appellants herein) influencing the police and getting an FIR registered with time and date of their choice cannot be ruled out and the possibility of PW-2 not being with the deceased at the time of accident and his implicating a bus belonging to the appellant (respondent no.1 herein) as having caused the accident also cannot be ruled out, because if really PW-2 was thrown away into the bushes due to the impact, as stated by him, he would have sustained at least some scratches and would have been referred to government hospital. The entire analysis of evidence by the High Court is erroneous and faulty. There was no basis for the High Court to come to the conclusion that the possibility of the respondents (appellants herein), influencing the police and getting the FIR registered with time and date of their choice cannot be ruled out.
17. This appeal by special leave filed by the appellants is delayed by 654 days and this delay, according to the affidavit filed by the appellants, occurred due to extreme poverty. The appellants could not collect necessary funds to file the special leave petition before this Court. In the background of the facts of this case, the observation of the High Court that the possibility of the appellants influencing the police and getting an FIR registered with time and date of their choice cannot be ruled out, is wholly erroneous and without any basis.
- 7 -
18. The High Court has wrongly observed that the possibility of PW-2 not being with the deceased at the time of accident and his implicating the bus belonging to the respondents herein cannot be ruled out, is also without any basis or foundation whatsoever.
19. The High Court erroneously observed that there is no evidence that the deceased died because of serious injuries received due to rash and negligent driving of the driver of the APSRTC. The High Court further observed that the Tribunal was in error in taking the multiplier from the Schedule II of the Act because on the date of the accident, Schedule II of the Act was not there in the Act and it was incorporated only by virtue of Act 54 of 1994 with effect from 14.11.1994.
20. Ms. Shally Bhasin Maheshwari, learned counsel for the appellants has drawn our attention to the judgment of this Court in Lata Wadhwa and Ors. vs. State of Bihar and Ors., (2001) 8 SCC 197. This case pertains to an accident which had taken place on 3.3.1989 in Jamshedpur. She has particularly drawn our attention to paragraph 4 of the said judgment, the relevant portion of which reads as under:
".........It has been held that the multiplier method having been consistently applied by the Supreme Court to decide the question of compensation in the cases arising out of the Motor Vehicles Act, the said multiplier method has been adopted in the present case."
21. She has further drawn our attention to paragraph 8 of the judgment, the relevant portion of which reads as under:
"The multiplier method is logically sound and legally well-established method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. A departure from this method can only be justified in rare and extraordinary circumstances and very exceptional cases."
- 8 -
22. The aforesaid judgment was available when the judgment of the High Court was delivered. The High Court, on the one hand, came to the clear conclusion that the deceased did not die because of the rash and negligent act of the respondents and on the other hand, it awarded compensation of Rs.75,000/-. If the High Court was clearly of the view that the deceased did not die because of the serious injuries sustained on account of rash and negligent act of the driver, then no compensation ought to have been awarded. The findings of the High Court are totally contradictory and unsustainable.
23. In the facts and circumstances of this case, we are left with no choice but to set aside the impugned judgment of the High Court and we do so. Consequently, the judgment passed by the Motor Accident Claims Tribunal, West Godawari District, is restored.
24. The amount of compensation which has already been given to the appellants would be adjusted and the remaining amount, with interest as directed by the Tribunal, would be handed over to the appellants within two months from today.
In case, the amount is not paid within a period of two months, the amount shall carry interest at the rate of 15% per annum.
25. This appeal is accordingly allowed and disposed of leaving the parties to bear their own costs.
..................................J
(DALVEER BHANDARI)
................................J
(K.S. RADHAKRISHNAN)
New Delhi;

BHUWAN SINGH v. M/S ORIENTAL INSURANCE CO.LTD.& ANR. [2009] INSC 484 (5 March 2009)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1537 OF 2009 [Arising out of SLP (Civil) No. 20101 of 2008]

Bhuwan Singh ...Appellant

Versus M/s

Oriental Insurance Company Ltd. & Anr. ...Respondents

S.B. SINHA, J :

1. Leave granted.

2. This appeal is directed against a judgment and order dated 3-04-2008 passed by a learned Single Judge of the High Court of Uttarakhand at Nainital in Appeal From Order No. 589 of 2006.
2
3. Appellant is the owner of a tractor bearing No. UA06/0363. It hit Paras Gubbar (deceased), son of Shri Harish Chandra Gubbar while he was riding on a cycle. He was aged about 19 years. He sustained an injury on his head and died on the spot.
His legal heirs and representatives filed a claim petition before Motor Accidents Claim Tribunal, Nainital which was registered as M.A.C.P. No.86 of 2001. An award of Rs.1,32,000/- was passed in favour of the said applicants/claimants. In the said proceedings, appellant inter alia raised a plea that the tractor was being driven by one Diwan Singh and the appellant being the owner thereof was sitting by his side whereafter he ran away.
Villagers stopped the vehicle and a first information report was lodged against him alleging that he had been driving the same rashly and negligently.
4. It was, furthermore, stated that the vehicle was insured with Oriental Insurance Company Limited under Policy Cover No. 58226 for the period 5-11-2000 and 4-11-2001.
The insurance company, on the other hand, raised a contention that as the driver of the said tractor was not holding a valid and effective licence, it 3 had no liability to reimburse the owner or the driver for the damages payable by the owner of the vehicle to the claimants-respondents.
5. The learned Tribunal, inter alia, framed the following issues:
"(1) Whether the rash and negligent driving by the driver of tractor no. UA 06/0363 on 5.1.2001 resulted in the accident causing death of Paras Gubbar and whether on the said date the tractor was owned by the respondent no. 1 and was insured with by the respondent no. 2 the insurance company? (2) Whether the petitioner suffered damage on account of the said accident and deserved to be compensated, if yes, to what extent and from which party? (3) Whether the petition is maintainable or suffers from non joinder of necessary party has stated by the respondent No. 1 and respondent No. 2 in their replies? (4) Whether the petitioner is entitled to any relief?"
6. An award of Rs. 1,32,000/- was passed in favour of the claimants. An appeal preferred thereagainst by the appellant has been dismissed by the High Court by reason of the impugned Judgment.
7. Ms. Rachna Joshi Issar, learned counsel appearing on behalf of the appellant would submit :
4 (i) No issue having been framed despite a specific plea having been raised by the appellant that he had not been driving the tractor, the tribunal and consequently the High Court committed a serious error in passing the impugned judgment.
(ii) Appellant at the relevant time must be held to have been holding an effective licence as he had been granted a learner's licence earlier, the finding of the Tribunal and consequently the High Court exonerating the insurance company from its liability to reimburse the owner in respect of the awarded amount suffers from serious legal infirmity.
(iii) Having regard to the statutory duties imposed upon the insurance company to reimburse the owner of the vehicle or driver as provided for in Section 149 of the Motor Vehicles Act, 1988, the impugned judgment must be held to be unsustainable.
(iv) The insurance company having not proved breaches of conditions of contract of insurance as has been held by this Court in National Insurance Co. Ltd. v. Swaran Singh and Ors.
[(2004) 3 SCC 297], the High Court must be held to have 5 committed a serious error of law in passing the impugned judgment.
8. Respondent-Insurance Company, on the other hand, would contend :
(i) Appellant cannot be said to have been prejudiced in any manner by non-framing of a specific issue as to whether the tractor was being driven by the appellant or Diwan Singh.
(ii) A finding of fact having been arrived at, that the owner of the vehicle himself was driving the vehicle; the onus of proof that he was not its driver was upon the appellant and not the insurance company.
(iii) Appellant having raised a specific plea as regards his non- involvement in the accident, the burden of proof was on him.
9. Appellant indisputably is the owner of the vehicle in question. He was admittedly in the vehicle when it met with the accident. A First Information Report was lodged against him. He was proceeded against in a criminal trial having been charge-sheeted by the Investigating Agency.
10. It is also not in dispute that the vehicle was insured. The relevant portion of the Contract of Insurance reads as under :
6 "...................................................................
Persons of classes of (A) Any person including persons entitled to insured. (B) PROVIDED drive that a person driving hold an effective driving Licence at the time of the accident and is not disqualified from holding or obtaining such a licence. (C) PROVIDED also that the person holding an effective learner's licence may also drive the vehicle and such a person satisfies the requirement of the rule 3 of the Central Motor Vehicle Rule 1988.
Limitations as to use Agri. Use.
11. Concededly the appellant had been holding a learner's licence. It expired on 22-12-2000. The accident took place on 5-01-2001. He applied for grant of a regular licence only on 22-01-2001, whereafter only the licence was granted to him.
Rule 14 of the Central Motor Vehicle Rules, 1989 provides for the manner in which an application for driving licence is to be filed. Such an application is to be filed in form 4 and is required to be inter alia accompanied by an effective learner's licence to drive the vehicle of the type to which the application relates.
7
12. Different provisions in the Motor Vehicle Act as also rules framed thereunder exist for filing applications for grant of learner's licence and a licence. Whereas an application for grant of a learner's licence is filed in form 3 prescribed by the rules; an application for grant of licence is filed in form 4.
13. The word effective licence is defined in Section 3 of the Act. Sub- section 2 of Section 149, however, uses the word duly licensed. In Swaran Singh (supra), a three Judge Bench of this Court has drawn a distinction between the said two terms.
14. The Act provides for grant of a learner's licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learner's licence is also entitled to drive a vehicle but it is granted for a specific period. The terms & Conditions for grant of a learner's licence are different from those of a regular licence. Holding of a learner's licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. Converse however is not true. Only because the appellant held a learner's licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite expiry of a regular licence, it may be renewed, but no provision has 8 been brought to our notice providing for automatic renewal of learner's licence.
In Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors.
[(2008) 8 SCC 165], this Court held :
"18. It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to Sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured."
15. Appellant herein raised a specific plea that he was not driving the vehicle and one Diwan Singh was driving the same. The said fact was within his special knowledge. Burden of proof, therefore, to prove the same was on him. He did not examine Diwan Singh.
9
16. The claimants in their claim petition described the appellant as owner as well as driver of the vehicle.
The insurance company, as noticed hereinbefore, has also categorically raised the plea that the appellant was not holding a valid and effective licence.
The burden of proof ordinarily would be on insurance company to establish that there has been a breach of conditions of the contract of insurance. In this case, however, the burden in terms of Section 106 of the Evidence Act was on the appellant. He failed to discharge the said burden.
As indicated hereinbefore, not only a criminal case was pending against him, he was also charge-sheeted.
17. A finding of fact has been arrived at that he had been driving the vehicle. He in view of the pleadings raised by the insurance company cannot be said to have been prejudiced by non-framing of specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. The tribunal as also the High Court arrived at a finding of fact that it was the appellant who had been driving the vehicle.
10
18. If that be so, the question raised before us must be determined having regard to the proved facts namely as on the date of accident he was not holding any valid and effective licence.
19. In terms of Section 149 of the Act, the insurance company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be in the insurance company.
20. It is now well-settled in view of Section 58 of the Indian Evidence Act that facts admitted need not to be proved.
21. The question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application.
Filing of an application and grant thereof would therefore are pre-requisite for holding a valid and effective licence.
24. As on 5-01-2001 the appellant was not duly licensed as his learner's licence expired on 22-12-2000. He filed an application for grant of licence much later. Insurance company, therefore, in our opinion was not bound to reimburse him in terms of the Contract of Insurance.
11 25. There is, thus, no merit in the case. The appeal is dismissed.
However, in the facts and circumstances of this case, there shall be no order as to costs.
...............................J.
[S.B. Sinha]

................................J.
[Dr. Mukundakam Sharma]

New Delhi;

Kolkata HC lawyers demand action against errant cops

Advocates of Calcutta High Court Bar staged a demonstration to protest against uncivilised behaviour of certain policemen towards women lawyers and demanded intervention of the Chief Justice to initiate appropriate action.



Volunteers of Ganatantrik Nagar Samiti of Howrah also joined the agitating lawyers in their protest.

The lawyers claimed that around 200 policemen had forcefully evicted women lawyers on Thursday when they were demonstrating against the decision of converting a room for official use of the court.

"150 to 200 police force came here, some were in dresses and some were in civil. Without approaching anything, they kicked the lady advocates. They have also snatched the ornaments, chain, 20,000 rupees, ATM cards, their bags," said Moonmoon Tiwari, a lawyer.

"Although, honourable senior judges have committed before us that they will take proper steps, we want that honourable Chief Justice also intervene," Tiwari added.

Worried by increase in population, Britain to announce immigration curbs

LONDON: Britain's coalition government has promised to introduce new measures to curb immigration that has allegedly contributed to an increase in population as revealed in latest official figures.

Figures released by the Office for National Statistics showed that the population of the UK was 61.8 million in mid-2009, which amounted to an increase of 394,000 on the previous year.

Responding to the figures, Immigration minister Damian Green said: "Over the coming weeks and months the public will see us tackle this issue by introducing a wide range of new measures to ensure that immigration is properly controlled, including a limit on work permits, actions on marriage and an effective system of regulating the students who come here."

The minister said the new government intended to reduce immigration numbers back to 1990s levels. The figures showed a total population increase of 2.7 million compared with 2001.

Green said: "We believe that immigration has been far too high in recent years, which is why the new government will reduce net migration back down to the levels of the 1990s – to tens of thousands rather than hundreds of thousands."

Britain recently announced higher English language requirements for Indian and other non-European Union spouses of British citizens and residents migrating to Britain.

The coalition government has also announced that it will impose an annual cap on the number of skilled professionals from outside the European Union who could come to Britain for work.

The proposed cap, however, has been criticised by industry leaders who believe it will restrict their ability to recruit the right kind of professionals.

NANHAR & ORS. v. STATE OF HARYANA [2010] INSC 430 (11 June 2010)

Judgement
REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2496 OF 2009

NANHAR & ORS. .. APPELLANT(S)

vs.

WITH CRIMINAL APPEAL NO. 2497 OF 2009

O R D E R

1. Appellant five in number, in both the appeals, feeling aggrieved by the judgment and order of conviction dated 7/5/2008 passed in Criminal Appeal No.919-DB/2006 by Division Bench of High Court of Punjab and Haryana at Chandigarh, arising out of the judgment and order of conviction dated 24/11/2006 and order of sentence dated 2 25/11/2006 pronounced by Additional Sessions Judge, Bhiwani, convicting them for commission of offences under Sections 302/149 of the IPC and awarding sentence to undergo RI for life, together with fine of Rs.2,000/-, are before us challenging the same on variety of grounds.

2. It may be mentioned herein that initially charge-sheet was filed only against four accused namely Nanhar, Virender @ Binder, Rampat and Rajbir @ Meda under Sections 306/34 IPC. The name of the fifth accused Umed Singh was added subsequently by the Trial Court on an application being filed by the prosecution under Section 319 of the Code of Criminal Procedure and allowed on 3.6.2004. The order of committal makes it clear that the first four appellants were charged and prosecuted for commission of offence under Sections 306/34 IPC.

Accordingly it was committed to Court of Sessions for being tried for the aforesaid offences.

However, on 5.10.2004 charge was framed by the learned Trial Judge under Sections 302/34 IPC.

Even though Umed Singh was added subsequently as one of the accused but the charge was not altered 3 to one under Section 149 of the I.P.C.


3. Thumbnail sketch of the facts of the case is as under:

Kartar Singh elder brother of Vijay deceased had filed an application on 27/2/2004 before the Superintendent of Police Bhiwani, alleging therein that he is resident of village Malkosh Tehsil Charkhi Dadri, District Bhivani and has been serving Armed forces for last 20 years. He has a residential house of his own in Rewari Town wherein his family and aged mother are residing. His younger brother Vijay, the deceased, was residing in Malkosh and was looking after the agricultural land owned by them. One Bhajani wife of Roop Ram, of the same village was on visiting terms to the house of Vijay as he was having small flour mill in his house. She used to come for grinding of wheat.

In the course of time she developed family relations with Vijay. There was a rumour in the village that she had forced her own daughter-in-law Kamlesh, wife of Rampat, one of the accused herein, to have illicit relations with deceased Vijay. In lieu whereof it was said that she had received a 4 sum of Rs. 1,000/- from Vijay. It was also the case of the prosecution that Vijay and Kamlesh wife of Rampat - appellant No.3 were seen in the field by many villagers and they had a doubt about their relationship. In fact, their relationship had become talk of the village. Rampat, the accused, came to know about the said relationship.

Therefore, he along with other co-accused Nanhar Virender and Rajbir decided to finish Vijay. On coming to know about the motive of the accused, Vijay had left village Malkosh for some time.


4. It was further mentioned that aforesaid four accused had told PW.11 Dalip, uncle of deceased Vijay, about their intention. They wanted to take revenge with Vijay on account of his relationship with Kamlesh, wife of Rampat. They further informed that this illicit relationship will not be tolerated by them and therefore they are planning to kill Vijay.


5. On 24/2/2004 PW.7 Sudesh, cousin of deceased Vijay informed PW.9 Kartar Singh, on telephone that Vijay has been murdered and his dead body was lying 5 in his field. It was further informed that some poisonous substance was administered to Vijay by accused Nanhar, Virender and Rajvir and Rampat. He was asked to reach Malkosh from Rewari immediately.

On the same night, Kartar Singh reached village Malkosh and found his brother dead. On enquiries being made by him it was found from the villagers that he has been done away with by administering poisonous substance to him by aforesaid persons.

This fact stood fortified from a small note said to be Vijay's dying declaration, written on the inside paper of the match box, recovered from the pocket of his pants. In the same, name of Meda Panch was also mentioned that they had mixed sulphas in the drink which was administered to him and it is likely to take away his life.


6. The said two pages written complaint dated 27.2.2004 was submitted by Kartar Singh to Superintendent of Police, Bhiwani. A note was endorsed by the Superintendent of Police to Deputy Superintendent of Police to look into the matter and do the needful. DSP sent it to SHO of Police Station Bhond Kalan, who was directed to 6 investigate the matter, in accordance with law. The said written complaint was treated as an F.I.R. and formal FIR came to be registered on 6/3/2004, that is to say almost after 11 days from the date of occurrence of the incident.


7. It is pertinent to mention here that on 24.2.2004, PW.11 Dalip while proceeding to lodge the report had met ASI Raj Kumar (reported to be dead) at the bus stop of Malkosh and had orally informed him about the incident. His statement to the police was entered into Daily Diary (Rojnamcha) by Sub-Inspector Raj Kumar at the Police Station.


8. On such report being received by him, ASI Raj Kumar reached the spot and prepared the inquest report Ext.PN. In column No.12, dealing with in what manner or by what weapon of instrument such marks or injuries appeared to have been inflicted, he recorded: "appears to have taken poisonous substance".


9. In the same inquest report, ASI Raj Kumar recorded detailed version of Dalip as was given to 7 him. According to Dalip, his nephew Vijay either took poisonous substance himself on account of the fact that villagers had come to know about his illicit relationship with Kamlesh, wife of Rampat or someone had forcibly administered it to him. He further got it recorded that he had left his other nephew PW.7 Sudesh at the place of occurrence for the safety of dead body and had come to the Police Station. But since ASI Raj Kumar met him at the bus stop of Malkosh, he is getting the said statement recorded.


10. ASI Raj Kumar recorded further in the said inquest report that after getting this information he went to the place of occurrence and found dead body of Vijay. The same was lying in a straight posture, mouth and eyes were found to be little open. He was wearing terricot pants along with ready made shirt but no external injuries were found on the body of the deceased. Height of the deceased was about 5' 9". Mouth was full of froth, a steel glass containing poisonous substance, and two bottles containing water and little liquor were found. However, Raj Kumar was not able to come to 8 definite conclusion with regard to cause of death.

Therefore, he thought it fit to wait till post- mortem report was received by him.


11. It is pertinent to mention here that neither in the statement of Dalip nor in the Inquest Report, there was any mention with regard to recovery of hand written dying declaration said to have been ascribed by deceased, from his pants.


12. Recovery memo was prepared by Raj Kumar, ASI in presence of two witnesses namely Dalip (PW.11) and Sudesh (PW.7). In the same it is said following articles were seized from the spot:- one hand written note authored by deceased Vijay, on the cover of the match box, two separate bottles, one containing water and another containing little liquor, one steel glass with name of Rampat ingraved. Earth containing white powder said to be poisonous substance was also collected. They all were sealed in different parcels and taken into police custody.

9

13. Translated copy of Ext.PG, dying declaration has been filed. The exact Hindi version written by him in the slip reads as thus:

""Daru ke sath Sulphas pila rahe hai. Marenge."

(underlining by us) The said Inquest Report was prepared at the spot.

In the site plan prepared there, neither recovery of pocket telephone directory nor recovery of pen was made. The statements of witnesses were recorded.


14. As mentioned hereinabove, initially Raj Kumar, ASI (now dead) did not find commission of any cognizable offence, thus he dropped the proceedings. Only after registration of the FIR on 6/3/2004, the criminal machinery was set into motion.


15. Post-mortem on the dead body of the deceased Vijay was performed by PW.4 Dr. Kuldeep Singh.

Post-Mortem Report is marked as Ext.PD. Doctor has opined that deceased was aged about 32 years, well built, having a height of about 5' 6", appears to be more appropriate than what was mentioned in the 10 Inquest. He has further categorically recorded that on the dead body no bruises or wounds were found.

Bladder and stomach both were found to be empty.

The time of death was shown to be 36 hours prior to performing of post mortem. The cause of death was shown to be excessive drinking of alcohol with poisonous substance. On the strength of FSL report (Ext.P.1), poisonous substance was found to be aluminium phosphide. According to the doctor, consumption of excessive alcohol coupled with poisonous substance was sufficient to cause death in ordinary course of nature.


16. From the post-mortem report Exh. PE as also from the deposition of Dr. Kuldeep Singh-PW.4, either deceased had met with homicidal death or committed suicide.


17. Now the question that crops up for consideration before us is whether it was the act of the aforesaid five appellants, on account of which he met with the homicidal death or it was Vijay himself, with an intention to save his status and glory in the society, had consumed poisonous 11 substance, thereby committed suicide.


18. Prosecution in all had examined 12 witnesses on its behalf, to bring home the charges levelled against the appellants. The accused had generally denied the charges levelled against them and submitted that Vijay had committed suicide, on account of his misdeeds. They pleaded innocence.

They deposed that they have falsely been roped in by the prosecution on the strength of manufactured and engineered documents. The appellants did not lead any evidence on their behalf.


19. On appreciation of evidence available on record, learned Trial Judge found them guilty for commission of offences under Sections 302/149 of the IPC and awarded them sentences as mentioned hereinabove. The appeal filed by them in the High Court of Punjab and Haryana was dismissed and the findings recorded by the Trial Court were affirmed and the judgment and order of conviction of the Trial Court was maintained. Hence these appeals.

12

20. We have accordingly heard learned senior counsel Mr. S.K. Dubey with Ms. Mrinamayee Sahu and Sh. Ajay Beer Singh for the appellants and Mr. Kamal Mohan Gupta, learned counsel for the respondent and perused the record. Evidence adduced have also been critically and microscopically gone through by us.


21. Sheet anchor of the prosecution story has been the alleged dying declaration Exh. PG said to have been written by deceased Vijay, on the inside paper of a match box. English translation thereof reads thus:

Rajbir Singh S/o Bhuru Rampat S/o Ruppa Binder Nanhar are drinking liquor by mixing the Sulphas and would kill.

It was written in vernacular language and in Hindi, as mentioned earlier, reads as under: "Daru ke sath Sulphas pila rahe hai. Marenge."


22. The aforesaid dying declaration has been found to be sufficient by the two courts below and appellants have been found guilty for commission of 13 offences under Sections 302/149 of the I.P.C. and have been awarded sentence as mentioned hereinabove.


23. Whether the same would fall in the category of dying declaration and if so, if it was sufficient to uphold the conviction and sentence awarded to them on the strength thereof, is required to be examined by us.


24. After critically going through the documents, not only Exh. PG but also the oral and other documentary evidence available on record, we find the following lacunae, shortcoming, lapses and deficiencies in the prosecution story:

(i) the said dying declaration has not been signed by deceased Vijay.

(ii) If the appellants were really present when the said dying declaration was said to have been written, then obviously they would not have allowed him to write the said dying declaration.

(iii) No recovery of pen was made from the site or from the person of the the deceased.

(iv) There is nothing either in the site plan 14 or in the recovery memo to suggest that the deceased was able to get any platform on which he could have written the said dying declaration.

(v) The inner pocket of the match box together with match sticks was not at all recovered.

(vi) It is not established by the prosecution that the deceased was a smoker of bidi or cigarette.

No butts or bidis were recovered from the place of occurrence.

(vii) As per the post-mortem report performed on 25.2.2004, the death had occurred within 36 hours from the time of performing of the post-mortem, meaning thereby that the incident must have taken place some time in the night.

(viii) There is nothing on record to show availability of electricity or any source of light at the spot.

(ix) In the Inquest Report prepared by ASI Raj Kumar (now dead), there is no mention with regard to the recovery of the dying declaration Exh.

PG or recovery of pocket index telephone directory.

(x) Similarly, in the site plan prepared on the spot, there is no mention with regard to the recovery of dying declaration, pen or pocket diary 15 from the place of occurrence or from the body of the deceased.

(xi) No finger prints either of the deceased or of the accused were taken, even though the same were available.

(xii) Report of the Chemical Examiner dated 6.10.2004 shows that the packets were received by him only on 10.3.2004 but no remnants of poisonous substance were found either in the two bottles or in the steel glass but were found only in the earth so collected from the place of occurrence. The poisonous substance has been described as Aluminium Phosphide.

(xiii) Except for the evidence of PW-7 Sudesh, PW-8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip, who all happened to be closely related to the deceased, evidence of an independent witness was not recorded, even though there is evidence available to show that many villagers were available.

(xiv) The evidence of PW-7 Sudesh and PW-11 Dalip is highly contradictory inasmuch as Sudesh has not deposed anything with regard to recovery of pocket index telephone diary from the person of the deceased; whereas Dalip has categorically deposed 16 with regard to recovery of pocket index telephone diary from his possession.

It is pertinent to mention here that PW-7 Sudesh and PW-11 Dalip are the witnesses to the recovery memo said to have been prepared by ASI Raj Kumar who is said to have died during the pendency of the sessions trial, also does not record its recovery.

(xv) It is extremely difficult to comprehend if the deceased was in a position to write the dying declaration, more so, after having consumed excessive amount of Alcohol mixed with poisonous substance. Fact of excessive amount of Alcohol mixed with poison stands proved from the evidence of PW-4 Dr. Kuldeep Singh, who had performed post-mortem (Exh. PD) on the person of the deceased.

(xvi) The post-moretm report further reveals that the deceased was aged about 32 years having a height of 5 feet 6 inches with a robust body. It is inconceivable to believe that if the appellants would have tried to administer him Alcohol mixed with poisonous substance, he would not have resisted to the same or at least would not have made any hue and cry. It also stands proved from the evidence of 17 PW-4 Dr. Kuldeep Singh and the post-mortem report that no bruises and external injuries were found on the person of the deceased.

(xvii) No explanation has been offered by the prosecution as to why the blank pages of the pocket index telephone diary were not used to scribe it, if the same had been recovered from his possession.

(xviii) The doctrine of motive could not be established by the prosecution at all. Thus another ground of holding them guilty on account of motive, completely shatters the prosecution story and falls flat.

(xix) It could not be established that dying declaration and pocket index telephone diary belonged to the deceased only. This aspect of the matter has not been established by the prosecution.

(xx) Even if it stood established from the opinion of the Handwriting Expert that dying declaration and pocket index telephone diary were in the same hand, still it could not be established that it belonged to the deceased only.

(xxi) Possibility of implanting of these documents cannot be ruled out.

(xxii) The said dying declaration does not 18 inspire confidence, much less to hold the appellants guilty for commission of the said offence.


25. In fact, the salient features noted above with regard to the deficiencies are sufficient, in our considered opinion, to come to the conclusion that the Courts below committed grave error in holding the appellants guilty for commission of offence under Sections 302/149 of the I.P.C.

But with intention to fortify our views, we would like to reiterate what this Court has already held in its earlier leading judgments.


26. Almost 25 years back, this Court in celebrated judgment in Sharad Birdhichand Sarda vs.

State of Maharashtra, reported in 1984 (4) SCC 116, held in paragraph 151 and 161 thereof that it is well settled law that the prosecution must stand or fall on its own legs and it cannot derive any strength form the weaknesses of the defence. For ready reference, the said paragraphs are reproduced hereunder:

"151. It is well settled that the prosecution must stand or fall on its own 19 legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain.

There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in 20 Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."


27. Similarly, when the case is based on circumstantial evidence, it has now been well settled by several authorities of this Court that the chain of circumstances should be complete in all respect and the pointer of guilt should continuously be on the accused only. Any deviation of the pointer of guilt on the accused would enure him the benefit of doubt.


28. No doubt it is true that ASI Raj Kumar, who had prepared the Inquest Report had died during the pendency of the trial, but no reasons have been assigned as to why other police personnel present along with ASI Raj Kumar, were not examined. They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased Vijay.

21

29. Admittedly, from the evidence of PW-7 Sudesh, it has come on record that the deceased Vijay was having bank account and he was also a member of some society, where his standard signatures were available. But those standard signatures were not made the basis for comparison of his hand-writing alleged to have been found from his possession. In the case of Sharad Birdhichand Sarda (supra), it has been dealt with elaborately as to how the chain of circumstantial evidence has to be complete in all respect. The relevant paragraphs 153 & 154 are reproduced herein below:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held 22 by this Court in Shivaji Sahabrao Bobade &

Anr. v. State of Maharashtra(') where the following observations were made:

'Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.' (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty.

(3) The circumstances should be of a conclusive nature and tendency.

(4) They should exclude every possible hypothesis except the one to be proved, and 164 (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

23

30. The aforesaid cardinal principles with regard to the completion of chain of circumstantial evidence for holding the appellants guilty could not be established at all by the prosecution in the present case. With such broken chain of circumstantial evidence, at many places, it would neither be safe nor prudent to hold the appellants guilty.


31. Apart from the above, it is extremely difficult for us to come to the conclusion if Exh.

PG can fall in the category of dying declaration at all or can be said to be legally admissible. Even though we have categorically, minutely and with microscopic eyes gone through the said document number of times, but it does not inspire confidence, more so, the manner in which it has been written.

We have already mentioned hereinabove that after having consumed excessive liquor, it would not have been possible for any one, much less for Vijay, to have written the said dying declaration with so much of precision or with steady hand. In our considered opinion, dying declaration should be such,which should immensely strike to be genuine and stating 24 true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be the result of tutoring. But dying declaration in the present case does not fulfill these conditions.


32. In HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 936, under title "Alcohols", deals with handwriting after consumption of liquor. While coming to the general behaviour after excessive drinking, apart from other things, it has specifically been noted: "Character of hand-writing: There is often difficulty with letters, N, M and W."


33. In the same book, it is further described that blood reaches all the organs, mainly the brain and interferes with normal brain functions like judgment and coordination of muscular movements. The blood alcohol level influences the behaviour of the person. The amount of alcohol present in the stomach and intestine has no effect but only indicates the 25 ingestion.


34. Obviously, it would go to show and we also come to the conclusion that after going through the handwriting, as has been found by us in the alleged dying declaration Ext. PG, it would have been extremely difficult for him to write it as he could not have been in a mentally fit condition to have written the same.


35. Unfortunately, this aspect of the matter has neither been considered by the learned Trial Judge nor has been adverted to by the Division Bench of the High court and yet the appellants have been found guilty for commission of the aforesaid offence.


36. In our considered opinion, the said judgment and order of conviction passed by the Trial Court and upheld by the High Court, cannot be sustained in law. They are accordingly set aside and quashed. As a necessary consequence thereof, the appellants would be set at liberty forthwith, if not required in connection with any other criminal case.

26 Both the appeals are allowed accordingly.

....................J (DEEPAK VERMA)

 ....................J (K.S. RADHAKRISHNAN)

New Delhi;
June 11, 2010.

IMPROVEMENT TRUST, LUDHIANA v. UJAGAR SINGH & ORS. [2010] INSC 429 (9 June 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2395 OF 2008

IMPROVEMENT TRUST, LUDHIANA .. APPELLANT(S)

VERSUS

WITH CIVIL APPEAL NOS. 2397 OF 2008

O R D E R

1 Heard counsel on either side at length. Records perused.

2 Even though both sides had cited several decisions of this Court on the scope and application of Section 5 of the Limitation Act, but it is neither necessary nor required to deal with those cases in the peculiar facts and circumstances of this case.

3 Land belonging to Respondent Nos. 1 to 4 was acquired by the appellant Improvement Trust, Ludhiana, for development scheme popularly known as "550 Acres Scheme". Reference Court had passed the Award and fixed the amount of compensation at rupees 4,27,068.20 paise together with interest at the rate of 9% per annum from the date of the issuance of the notification in favour of Respondent Nos. 1 to 4. The appellant did not deposit the amount. Respondent Nos. 1 to 4 had to approach the Executing Court for recovery of the amount awarded. The property described as Khewat No.867 Khautani No.971 Khasra No.272 admeasuring 7K-18M entered in jamabandi for the year 1988-89 in village Jabaddi No.160 Tehsil and District 4 -2- 1 Ludhiana was attached for realisation of the decretal amount. Later a notice under Order 21 Rule 66 of the Code of Civil Procedure (hereinafter shall be referred to as `C.P.C.') was stated to have been issued to the appellant. However, despite service of notice, none appeared on behalf of the appellant /judgment debtor.

2 The property was put to an auction sale on 12/8/1992.

Respondent No. 5 herein, M/s. Jagan Singh and Company (hereinafter shall be referred to as `the Company') offered Rs.22,65,000/-, and thus was declared as the highest bidder. Sale was knocked down in its favour, and later confirmed in its favour.

3 The appellant then woke up from its slumber and filed objections under Order 21 Rule 90 CPC raising various grounds. Executing Court then framed issues, reproduced by the learned Single Judge in the impugned order. The case was thereafter fixed for recording of the evidence of 4 judgment-debtor on 19/3/1993, 17/4/1993, 8/5/1993 and 29/5/1993. However, on the aforesaid dates none appeared on behalf of the appellant. Consequently, the evidence of appellant/judgment debtor was closed.

As a necessary consequence thereof appellant's objections came to be dismissed in default due to non- appearance.

5 Mr. P.K. Jain, Advocate used to appear for the appellant- Trust, but did not appear on the above mentioned dates.

The order-sheet dated 29/5/1993 reproduced in the impugned order passed by the learned Single Judge reflected the same. Case was posted for confirmation of sale on 5/6/1993, again there was no appearance and the sale was confirmed in favour of respondent No.5. It is reported pursuant thereto sale deed was executed in its favour 6 7 8 9 10 -3- 11 through court. Out of the bid amount of Rs.22,65,000/- the awarded amount due to respondents 1 to 4 was released, and remaining is lying in deposit with the Executing Court.

12 The appellant thereafter filed miscellaneous appeal before the District Judge, Ludhiana, challenging the correctness propriety and validity of the orders passed on 29/5/1993 and 5/6/1993, made over to Additional District Judge, Ludhiana. Said appeal was barred by limitation by two months and few days, exact delay has not been reflected in 13 any of the orders. But after going through the files it appears that delay was for about two months and few days. An application under Section 5 of the Limitation Act was filed to condone delay but was dismissed by the Appellate Court stating therein that no good and sufficient grounds were shown for condonation of delay.

Consequently the appeal was also dismissed.

14 Thereafter, appellant under some mistaken advice filed execution second appeal in the High Court of Punjab and Haryana at Chandigarh registered as Execution Second Appeal No. 820 of 1994. On objections being raised with regard to its maintainability, in the light of the specific bar created under Section 104 of the CPC, learned Single Judge converted the appeal into civil revision and proceeded to decide as such.

15 Respondent No.5 contended that no error was committed by the Executing Court in dismissing the appellant's application for setting aside the sale. Similarly the first Appellate Court also committed no error in dismissing the Appellant's appeal as no good and sufficient cause were shown for condoning delay. The objections raised by respondent No.5 found favour by the 1 -4- 2 learned Single Judge of the High Court and the appeal/revision of the appellant was dismissed on 9/5/2003. In the light of the aforesaid orders the objections preferred by appellant herein purportedly filed under Order 21 Rule 90 of the CPC met with the fate of dismissal. Appellant also filed an application for review of the order dated 9/5/2003 passed by High Court under Order 47 Rule 1 of the CPC but was also dismissed on 8/7/2004, against which C.A. No.

2395/2008 has been filed before this Court. Since parties are same and common issues arise for consideration they are heard analogously and disposed of by a common order.

3 Learned senior counsel appearing for appellant Mr. Salil Sagar with Mr. Arun K. Sinha, contended that appellant had been contesting the matter in right earnest right from the very beginning and had implicit faith and confidence in his Advocate Mr. P.K. Jain, who had been appearing for the appellant not only in this case but in several other cases. According to him there was no reason to doubt that he would not appear on various dates of hearing and then would not even inform the appellant about the progress of the case. In other words, it has been contended that whatever best was possible to be done by the appellant that had been done, therefore even though there has been some delay, on account of non-communication of the passing of the impugned order challenged in appeal, delay should have been condoned and the matter should not have been thrown at the threshold. To show its bonafides various order-sheets passed by Trial Court and the Executing Court have been brought to our notice. The envelop maintained by Mr. P.K.Jain, Advocate, for keeping the brief, has been filed to show that dates of hearing were mentioned therein.

-5- 1 On the other hand, Mr. Vijay Hansaria, learned senior counsel appearing for respondent No.5, with his polite yet usual vehemence submitted that list of dates as filed by the Company would show and reveal the callous and negligent attitude of the appellant or its Advocate, therefore no indulgence should be shown to it. It was contended that the indifferent attitude of the appellant in prosecuting the matter had not come to an end and Appellant had learnt no lessons from its previous defaults.

2 Even though appeal was dismissed by First Appellate Court on the ground of delay, stood confirmed by the High Court but even the Special Leave Petition was delayed by 258 days in refiling there was further delay of 90 days. No doubt it is true that this Court after considering the appellant's application was pleased to condone delay and leave was granted. But this has been argued by Mr. Vijay Hansaria to show the conduct, behaviour and attitude of the appellant in prosecuting the matter.

3 Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time.

Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing 4 5 -6- 1 Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not.

Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr.

Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same.

2 After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated.

3 In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal -7- 1 rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities.

2 Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties.

3 For the aforesaid reasons the impugned orders passed by Appellate Court, and order passed by the High Court, are hereby set aside and quashed. As a consequence, the matter stands remitted to the Executing Court for deciding the appellant's application filed under Order 21 Rule 90 of CPC at an early date on merits. Since there are only two contesting parties to the litigation that is to say the appellant and respondent No.5, both would appear before the Executing Court on 20/7/2010.

Being an old case an endeavour would be made by the Executing Court to take up the case as far as possible, on day-to-day basis and no party would seek an undue adjournment in the matter. We make it clear that we have expressed no opinion, on the merits of the matter and any observation made herein would not be construed as an expression of opinion on merits.

4 We are conscious of the fact that respondent No.5 has been put to inconvenience and harassment as admittedly it had deposited a huge amount of Rs.22,65,000/- in the year 1992 but has not been able to get any fruits thereof till date. Therefore the appellant's appeal is allowed subject -8- 1 to payment of Rs.50,000/- (Rupees fifty thousand) to respondent No.5 within three weeks hereof. Payment of cost is condition precedent, without which the appellant would not be allowed to prosecute its objections. The appeal therefore stands allowed to the aforesaid extent. The appellant to bear the cost through out. In the light of this order, other civil appeal No. 2397/2008 stands allowed to the aforesaid extent only.

..................J.

(DEEPAK VERMA)

...................J.

(K.S. RADHAKRISHNAN)

New Delhi, June 9, 2010.

STATE OF ORISSA & ANR v. RAJKISHORE NANDA & ORS ETC. ETC. [2010] INSC 428 (3 June 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 2808 of 2008

State of Orissa & Anr. ..Appellants

Versus

Rajkishore Nanda & Ors. ..Respondents

Dr. B. S. CHAUHAN, J.

1. The present appeal has been preferred against the Judgment and Order of the Orissa High Court dated 26.10.2005 passed in OJC Nos. 10582, 11262, 11268, 11269, 11271, 11273, 11275, 11279, 11280, 11324 & 11326 of 2000, by which the High Court dismissed the Writ Petition filed by the State of Orissa/Appellant against the Judgment and order of the Orissa Administrative Tribunal, Cuttack (hereinafter called as, "the Tribunal") dated 7.4.2000 issuing direction to the appellant to appoint all the persons whose names appeared in the panel for the selection on the post of Junior Clerk held in 1995.

2. Facts and circumstances giving rise to the present appeal are that in order to fill up 15 posts of Junior Clerks in District Sonepur, applications were invited by an advertisement dated 25.06.1995. The advertisement made it clear that number of vacancies could be increased. The respondents applied in pursuance of the said advertisement along with large number of persons and written examination was held in accordance with the Orissa Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985 (hereinafter called as, "Rules, 1985").

Before the selection process could complete, the number of vacancies were increased from 15 to 33 and as per the requirement of Rules, 1985, a merit list of 66 candidates was published on 6.11.1995. The appointments were made on the said posts. The respondents, whose names appeared in the merit list and could not be offered appointment, being much below in the merit list, filed applications before the Tribunal praying for a direction to the State to offer them appointments. The Tribunal, vide its Judgment and Order dated 7.4.2000, came to the conclusion that appointments were to be offered to all the candidates till the entire select list stood exhausted.

2 Therefore, the Tribunal directed to offer appointment to all left over candidates in the select list of 1995.


3. Being aggrieved, the State preferred the writ petition against the said common Judgment and order of the Tribunal in the High Court of Orissa and the High Court, vide Judgment and order dated 26.10.2005, modified the order of the Tribunal issuing direction to the appellants to offer appointment to those persons who had approached the Tribunal. Hence, this appeal.


4. Sh. Janaranjan Das, learned counsel appearing for the appellant-State, has submitted that number of vacancies cannot be filed up over and above the number of vacancies advertised. Once the advertised vacancies are filled up, the selection process stands exhausted and the selection process comes to an end. Where the Rules provide to determine the vacancy yearly, life of select list cannot be more than one year and once the life of the select list expires, no appointment can be offered from the panel so prepared.

The Tribunal and the High Court committed an error issuing directions to appoint the candidates from the unexhausted part of the 3 select list, which is not permissible in law. Thus, the appeal deserves to be allowed.


5. Per contra, Sh. H.P. Sahu and Sh. J.P. Mishra, learned counsel appearing for the respondents vehemently opposed the appeal contending that if the selection is not held in subsequent years, candidates whose names appear in the panel have to be offered appointments. Therefore, no interference is required with the impugned Judgment and order of the High Court. The appeal lacks merit and thus, liable to be dismissed.


6. We have considered the rival submissions of the learned counsel for the parties and perused the record.


7. Relevant Rules from Rules, 1985, which are necessary to be considered for deciding the appeal, read as under :- "Rule 2 Definitions - In these rules unless the context otherwise requires - ................... "Year" means a calendar year.

Rule 3 Recruitment Recruitment to the posts shall be made through direct recruitment by means of a competitive 4 examination to be held ordinarily once in every year.

Rule 6 Notification of vacancies On the receipt of the requisite information from the District Officers the Chairman of the Board shall notify the total number of vacancies to the local employment exchange indicating therein the number of reserved vacancies for the purpose of conducting the competitive examination.

Rule 11 (1) Allotment of successful candidates The Chairman of the Board shall ensure completion of evaluation of answer papers and preparation of the list of successful candidates who have qualified by such standards as will be decided by him ordinarily within two months from the date of examination. The candidates' names shall be arranged in order of merit on the basis of marks secured by them in the examination conducted by the Board. This list of successful candidates drawn in order of merit shall not ordinarily exceed double the number of vacancies as determined under Rule 6.

Rule 12 The list prepared under Sub-rule (1) of Rule 11 shall remain valid for a period of one year from the date of publication of the same or till drawal of the next year's list, whichever is earlier.


8. If the aforesaid relevant Rules are read together, the cumulative effect thereof comes to that after determining the number of 5 vacancies taking into consideration the expected vacancies, the same shall stand notified to local Employment Exchange and advertise the same through other means. The select list, after holding the test as required under the Rules, 1985, shall be prepared and published, which shall contain the names of candidates, double the number of vacancies so advertised/determined.


9. Rule 14 merely enables the State Government to relax the eligibility conditions by recording reasons in respect of any class or categories of persons in public interest.


10. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of 6 power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar &

Chairman, Banking Service Recruitment Board & Ors. AIR 1996 2010 SC 932).


11. In State of Punjab v. Raghbir Chand Sharma and Ors. AIR 2001 SC 2900, this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that post can be filled up offering the 7 appointment to the next candidate in the select list observing as under:

"With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select list prepared, the panel ceased to exist and has outlived its utility and at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."


12. In Mukul Saikia and Ors. v. State of Assam and Ors. AIR 2009 SC 747, this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.

8

13. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.

Union of India, AIR 1991 SC 1612, held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (see also Asha Kaul 9 Ors., (2009) 2 SCC 479).


15. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.

It is the settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the Court Government of National Capital Territory of Delhi & Anr., (1999) 1 10 Commission, Trivendrum & Ors., (2007) 6 SCC 190; Deepa Keyes Subha B. Nair & Ors. (supra).


16. The instant case is required to be examined in view of the aforesaid settled legal proposition. The Rules, 1985 provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. Select list prepared so also valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list. It is exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection 11 process for making appointments. Bonafide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The Courts/Tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possess the requisite eligibility.


17. As the appointments had been made as per the select list prepared in 1995 and selection process came to an end, there was no occasion for the Tribunal to entertain the Applications in 1997, 1998 and 1999 for the simple reason that once the number of vacancies determined are filled, the selection process came to an end, no further appointment could be made from 1995 panel. The purpose of making the list of double of the vacancies determined is to offer the appointment to the persons from the waiting list in case persons who are offered appointment do not join. But it does not give any vested right in favour of the candidates whose names appeared therein.

12

18. It appears from the Judgment of the Tribunal that Rule 11(1) of the Rules, 1985 did not provide originally to prepare the list double the number of determined vacancies and it was only for preparing the list containing the names equal to the number of vacancies advertised/determined. In such a fact-situation, the select list could have been prepared only containing 33 names i.e. equivalent to the number of vacancies determined. In such a fact-situation, selection process would come to an end automatically whenever 33 candidates are appointed. However, if the appellant had prepared a list double the number of vacancies determined, that would not create any vested right in favour of the respondents. Thus, Tribunal committed grave error issuing direction to offer appointments to all the left over candidates.


19. The Tribunal held as under :- "In this case by preparing the panel far exceeding the number of vacancies, the Rules have been violated.

For this lapse on the part fo the Collector, the candidates who have been subjected to a rigorous selection at more than one stage, should not be penalised.............The validity of the select list has expired long since. Both learned counsel for the applicant and the learned Government Advocate 13 concede that no further recruitment has been conducted by the Collector, Sonepur. During this intervening period of four years vacancies must be arisen due to promotion, retirement, creation of new posts etc. in different offices." (Emphasis added)

20. The Tribunal, after recording the finding of fact that life of select list had expired, held that as the selection could not be held in subsequent years, thus, candidates whose names appeared in the panel should be offered appointment by granting relaxation of Rules.

Issuance of such a direction is not permissible in law as no appointment can be made from the panel after expiry of the life of select list.


21. The High Court has concluded as under :- "Here the advertisement stipulated that there were vacancies and the vacancy position might go up.

The select list prepared admittedly contained the names of 66 successful candidates. A cumulative reading of Rules 6 & 11(1) of the OMS Rules, 1985 vis-`-vis the select list which contained the names of 66 successful candidates leads to an irresistible conclusion that the number of vacancies at the time of publication of the select list was 66. the stand of the State before this Court is that under the impression that the select list should contain double the number of vacancies, a lsit of 66 candidates was published. But then, if the said statement is accepted, the vacancies that existed at the time of 14 publication of the select list would have been 33. But it appears that the total number of candidates already appointed is 40.........The submission of the State that as one year had expired from the date of publication of the select list, the same had spent its validity cannot also be accepted. If vacancies were available, the candidates selected but illegally not sponsored for appointment should not suffer."

In view of the above, the High Court directed to offer the appointment to the persons whose names appeared in the panel and had approached the Tribunal.


22. The aforesaid view taken by the High Court cannot be held to be in consonance with law. More so, if the State has committed an error in preparing the merit list containing the names of candidates double the number of vacancies determined, that would not mean that select list has become immaterial and all those persons whose names appeared in the list would be offered appointment even after expiry of the life of select list.


23. In view of the above, the Judgment and order impugned hereinabove cannot be sustained in the eyes of law. The appeal is allowed. The Judgments and orders of the Tribunal dated 7.4.2000 15 and the High Court dated 26.10.2005 are set aside. No order as to costs.

.........................................J.

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

PUBLIC SERVICE COMMISSION,UTTARANCHAL v. MAMTA BISHT AND ORS. [2010] INSC 427 (3 June 2010)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 5987 of 2007

Public Service Commission, Uttaranchal ..Appellant

Versus

Mamta Bisht & Ors. ..Respondents

With Civil Appeal No. 5982 of 2007

State of Uttaranchal ....Appellant

Versus

Mamta Bisht & Ors. ...Respondents

Dr. B. S. CHAUHAN, J.

1. These appeals have been preferred by the Public Service Commission and the State Government of Uttaranchal being aggrieved of the judgment and order of the High Court of Uttaranchal, Nainital dated 26.10.2005 allowing the Writ Petition No.780 of 2003 (M/B) and directing the present appellants to appoint respondent No.1- Ms. Mamta Bisht as Civil Judge, Junior Division in the State of Uttaranchal.

2. Facts and circumstances giving rise to these appeals are that Public Service Commission, Uttaranchal (hereinafter referred to as the `Commission') issued an advertisement dated 7.6.2002 inviting applications for 35 posts of Civil Judge, (Junior Division) with a stipulation that the number of vacancies may be increased or decreased. It clarified that the reservation policy adopted by the State i.e. reservation in favour of SC/ST/OBC and horizontal reservation in favour of handicapped, and women etc. belonging to Uttaranchal would be applicable. Respondent No.1 applied in pursuance of the said advertisement seeking benefit of reservation in favour of Uttaranchal women. She qualified in the written examination and thus faced the interview held by the Commission. The final result of the selection was declared on 31.7.2003 and it was evident from the result that respondent No.1 was not 2 selected. Instead of filling of 35 vacancies, recommendations to fill up 42 vacancies were made as the decision had been taken in this regard prior to declaration of result. Out of 42 posts, 26 were filled up by general category and 16 by reserved category candidates. Some women candidates stood selected in general category while others had been given the benefit of horizontal reservation being resident of Uttaranchal. Respondent No.1, being aggrieved preferred Writ Petition No.780 of 2003 (M/B) in the High Court of Uttaranchal seeking quashment of select list dated 31.7.2003 mainly on the ground that women candidates belonging to Uttaranchal had secured marks making them eligible to be selected in general category and had it been done so, respondent No.1 could have been selected in reserved category being a woman of Uttaranchal. It had also been pleaded in the petition that some of the women candidates who not only claimed the benefit of horizontal reservation but have been selected giving the said benefit, did not submit their respective certificate of domicile at the time of filling up the application forms but they produced the said certificate at a later stage and it was accepted. The High Court 3 accepted the first submission of respondent No.1 after examining the record of selection and came to the conclusion that last selected woman candidate who was given benefit of horizontal reservation for Uttaranchal women had secured marks higher than the last selected candidate in general category. Thus, the said candidate ought to have been appointed against the general category vacancy and respondent No.1 ought to have been offered the appointment giving her the benefit of horizontal reservation for Uttaranchal women. Hence, these appeals.


3. Shri S.S. Shamshery, Advocate appearing for the Commission and Shri Ashok Mahajan, Advocate appearing for the High Court have submitted that all the vacancies advertised had already been filled up before the writ petition could be filed. Not a single successful candidate had been impleaded as a respondent before the High Court. Thus, the petition ought to have been dismissed for not impleading the necessary parties. The High Court did not consider the issue of acceptance of domicile certificates by the Uttaranchal 4 women at a belated stage nor any finding has been recorded on the said issue. The High Court failed to consider the principle that if a reserved category candidate secures more marks than the last selected candidate in general category, then he is to be appointed against the general category vacancy, does not apply while giving the benefit of horizontal reservation. The writ petition filed by the respondent did not have any factual foundation or proper pleadings and thus was not worth entertaining. It is well neigh impossible to implement the judgment of the High Court at this belated stage, for the reasons that all the vacancies advertised stood filled up in 2003. Subsequent to the selection involved herein appointments have been made several times. Judicial Officers appointed from the said selection have been promoted as Civil Judge (Senior Division). Respondent No.1 cannot be given seniority over and above the officers appointed in subsequent selections. Thus, appeals deserve to be allowed.


4. On the contrary, Shri R. Venkataramani, learned senior counsel appearing for respondent No.1 has vehemently 5 opposed the appeals contending that great injustice has been done to respondent No.1. She has succeeded before the High Court on the sole ground that the last selected candidate receiving the benefit of horizontal reservation in favour of Uttaranchal women could be appointed against the general category vacancy and the respondent No.1 ought to have been selected giving her the benefit of horizontal reservation in favour of Uttaranchal women. There are still some vacancies from the said selection as two successful candidates have resigned after joining. Thus, respondent No.1 can be adjusted against one of such vacancies. Respondent No.1 has been issued appointment letter dated 17.5.2010 in pursuance of the impugned judgment, but has not yet been given posting by the High Court. Thus, she could not join the service. Thus, the appeals are liable to be dismissed.


5. We have considered the rival submissions made by learned counsel for the parties and perused the record.

6

6. It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up.

Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi 932).

However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly.


7. In case the respondent No.1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh 7 Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8 West Bengal & Ors. (2009) 1 SCC 768), It has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties.


9. All the 42 vacancies had been filled up, implementing the reservation policy. All the women candidates selected from reserved category indisputably belong to Uttaranchal and none of them is from another State.


10. The High Court decided the case on the sole ground that as the last selected candidate, receiving the benefit of horizontal reservation had secured marks more than the last selected general category candidate, she ought to have been appointed against the vacancy in general category in view of India, AIR 1993 SC 477, and the Division Bench judgment of High Court of Uttaranchal in Writ Petition No.816/2002 (M/B) decided on 16.4.2003, and respondent no.1 ought to have 9 appointed giving benefit of reservation thus, allowed the writ petition filed by respondent No.1.


11. In fact, the High Court allowed the writ petition only on the ground that the horizontal reservation is also to be applied as vertical reservation in favour of reserved category candidates (social) as it held as under:

"In view of above, Neetu Joshi (Sl.No.9, Roll No.12320) has wrongly been counted by the respondent No.3/Commission against five seats reserved for Uttaranchal Women General Category as she has competed on her own merit as general candidate and as 5th candidate the petitioner should have been counted for Uttaranchal Women General Category seats."


12. Admittedly, the said Neetu Joshi has not been impleaded as a respondent. It has been stated at the Bar that an application for impleadment had been filed but there is nothing on record to show that the said application had ever been allowed. Attempt had been made to implead some successful candidates before this Court but those applications stood rejected by this Court.

1

13. The view taken by the High Court on application of horizontal reservation is contrary to the law laid down by this Commission & Ors. AIR 2007 SC 3127, wherein dealing with a similar issue this Court held as under:

"9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non- reserved posts and if they are appointed to the non- reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v.

State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr.Y.L. Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal 1 (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women." (Emphasis added)

14. In view of the above, it is evident that the judgment and order of the High Court is not in consonance with law laid down by this Court in Rajesh Kumar Daria (supra). The judgment and order impugned herein is liable to be set aside and all consequential orders become unenforceable and inconsequential.

Thus, appeals succeed and are allowed. Judgment and order of the High Court dated 26.10.2005 passed in Writ 1 Petition no.780/2003 (M/B) is hereby set aside. No costs.

.........................................J.

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