MD.SUKUR ALI v. STATE OF ASSAM [2011] INSC 195 (24 February 2011)

Judgement

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 546 OF 2011 (arising out of S.L.P. (CRL.) No(s).679 of 2011)

MD.SUKUR ALI Appellant(s)

VERSUS

STATE OF ASSAM Respondent(s)

O R D E R

Leave granted.

Heard learned counsel for the parties.

We have also heard Mr. Fali S. Nariman, learned senior counsel, who very kindly consented to assist us as Amicus Curiae in this case in which an important constitutional and legal question is involved.

That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ? In the present case, it appears that Criminal Appeal 137 of 2003 was decided by the Gauhati High Court on :1:

01.06.2010 in the absence of the counsel for the appellant- accused and the conviction was upheld.

Mr. Nariman, learned senior counsel, pointed out that earlier the counsel for the appellant-accused was Mr. A.S. Choudhury but the appellant changed his counsel and appointed Mr. B. Sinha in the year 2007 as his new counsel, and this fact is corroborated by affidavit. Unfortunately, the name of Mr. Sinha as counsel for the appellant was not shown in the cause list when the case was listed and the name of the former counsel Mr. Choudhury was shown. In these circumstances, Mr. Sinha who was engaged by the appellant as his new counsel did not appear.

We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the :2:

Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.

In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US in which it was observed :- "What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense".

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The above decision of the US Supreme Court was cited State of Tamil Nadu & Ors., AIR 2011 Supreme Court 308, vide para 24.

A similar view which we are taking here was also taken State of Maharashtra, (2005) 11 SC 412.

In this connection we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under :

"Article 21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law".

Article 22(1). Protection against arrest and detention in certain cases. - (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion :4: that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.

The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed. :5:

Apart from the above, we agree with the eminent jurist Seervai who has said in his "Constitutional Law of India', Third Edition, Vol. I, Pg. 857:- "The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh's case [1952] INSC 57; (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings."

We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen :6:

civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula `Na vakeel, na daleel, na appeal' (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.

In this connection, we may also refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited counsels to appear for the accused in cases under the Act):- "When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public :7:

meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery...

"Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land."

In Gideon vs Wainwright[1963] USSC 42; , 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:- "Lawyers in criminal courts are necessities, not luxuries"

In Brewer vs William[1977] USSC 73; , 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed;- "The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. " :8:

For the reasons stated above, we allow this Appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.

The case shall be heard by a Bench of Judges other than those who passed the impugned judgment.

The Order dated 24.01.2011 passed by this Court granting bail to the appellant shall continue till the appeal is decided by the High Court.

We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.

If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be :9:

precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae. ......................J.

(MARKANDEY KATJU) .......................J.

(GYAN SUDHA MISRA) NEW DELHI;

FEBRUARY 24, 2011.

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LANKA VENKATESWARLU (D) BY LRS. v. STATE OF A.P. & ORS. [2011] INSC 194 (24 February 2011)

Judgment

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2909-2913 OF 2005

Lanka Venkateswarlu (D) by LRs. .. Appellants

VERSUS

State of A.P. & Ors ..Respondents

SURINDER SINGH NIJJAR, J.

1. These appeals are directed against the order passed by a Division Bench of the High Court of Judicature of Andhra Pradesh at Hyderabad in CMP Nos. 21114, 21115, 21116, 21117 and 21118 of 2003 dated 19th August, 2003. By the aforesaid order, the High Court has allowed all the petitions/applications.

2. In the applications/petitions, respondent No.3, herein, had sought the following directions:- "

CMP No. 21114/2003: Petition under Order 22 Rule 4 of the CPC praying that in the circumstances stated in the affidavit titled therewith, the High Court will be pleased to permit the petitioners to bring the above stated persons as legal representatives of the deceased sole respondent in Appeal No. 8 of 1985 on the file of the High Court.

CMP No. 21115/2003: Petition U/s praying that the High Court may be pleased to set aside the dismissal Order dated 6.2.98 in AS No.8 of 1985 and to restore the appeal to file.

CMP No. 21116/2003: Petition Under Order 9 Rule 9 read with section 151 CPC, praying that the High Court may be pleased to set aside the abatement caused due to the death of sole respondent i.e. Lanka Venkateswarlu.

CMP No. 21117/2003: Between Sri D.E.V Apparao ...Petitioner/impleaded Petitioner in AS No.8 of 1985 on the file of High Court And:

1. The State of A.P. rep. by District Collector, Visakhapatnam.

2. The Tahsildar, Visakhpatnam ...Respondent/Appellants

3. Lanka Venkateswarlu (died) ...Respondent 2 Petition under Order 1 Rule 10 CPC, prays this Hon'ble Court may be pleased to permit the petitioners society to be impleaded as appellant No.3 along with the appellants No. 1 and 2 in AS. 8 of 1985 on the file of the Hon'ble Court to prosecute the appeal.

CMP No. 21118/2003: Petition U/s 5 of Limitation Act praying the High Court may be pleased to condone the delay of 883 days in filing the petition seeking to set aside the dismissal order dated 6.2.1998.

These petitions coming on for hearing, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Govt. pleader for Appeal for Petitioners in CMP Nos. 21114, 21115, 21116, 21118 of 2003 and of Mr. K. Sarva Bhouma Rao, Advocate for petitioner in CMP No. 21117 of 2003 and of Mr. M.S.R. Subramanyam, Advocate for the respondents in CMP Nos. 21114, 21115, 21116, 21118 of 2003 and G.P. for Appeal for the respondents in CMP No. 21117 of 2003."

3. We may now briefly notice the relevant facts as stated in the pleadings of the parties and the impugned order of the High Court. The predecessor of the appellants, i.e., Shri Lanka Venkateswarlu, (hereinafter referred to as `original plaintiff'), brought a suit O.S. No. 72 of 1979 before the subordinate judge Visakhapatnam 3 for the declaration of his title as the absolute owner of the suit schedule property and for permanent injunction restraining respondents Nos. 1 and 2 from interfering with his peaceful possession. The suit schedule property, to the extent of 2 acres was, according to the original plaintiff, covered by survey No. 73/12 in Thokada village. He had purchased the suit schedule property by a registered sale deed dated 15th July, 1961 from one Gonna Appanna son of Venkataswamy of China Gantyda village. The original plaintiff was constrained to file the aforesaid suit on coming to know that respondent Nos. 1 and 2 were claiming the suit schedule land to be "banjar land" which vested in the Government. He had also learned that the land was in imminent danger of being illegally alienated by the respondent Nos. 1 and 2. They were claiming that the land was required to issue Pattas to weaker sections of society.

4. Respondent Nos. 1 and 2 were impleaded as the defendants to the suit. Subsequently, the suit was 4 transferred to the Court of IVth Additional District Judge, Visakhapatnam and renumbered as O.S. No. 83 of 1981.

5. The aforesaid averments of the original plaintiffs were controverted by the respondent Nos. 1 and 2. It was claimed that the plaint schedule property was not covered by old survey No. 73/12 of the original village of Thokada. The boundaries as well as survey number were stated to be fictitious, forged and imaginary. Even the ownership of the ancestors of the vendor of the original plaintiff of the suit schedule land was denied. Further, the alleged sale deed dated 15th July, 1961 between the original plaintiff and the vendor was denied. It was also stated that the original plaintiff was not in possession and enjoyment of the plaint schedule property.

6. On the pleadings of the parties, the trial court framed six issues. Issue No. 1 pertains to the title of the original plaintiff to the schedule property. Issues No.2 & 3 were with regard to, whether the original plaintiff was 5 entitled to relief of declaration and injunction as prayed for. Issue No.4 was whether the suit is not maintainable. A perusal of the judgment of the trial court shows that the suit was hotly contested on each and every issue. Issues 1, 2, 3, 4 and 6 were decided in favour of the original plaintiff and against the defendants, i.e., respondent Nos. 1 and 2. Issue No.5 with regard to valuation of the suit was not pressed by the government pleader. The suit was decreed by judgment dated 24th September, 1982.

7. The respondents challenged the aforesaid judgment and decree by filing an appeal before the High Court of Andhra Pradesh being A.S. No. 8 of 1985. The sole respondent, i.e., original plaintiff died on 25th February, 1990. Therefore, the Advocate appearing for the deceased original plaintiff being the `sole respondent' in the appeal filed a memo before the High Court giving intimation about the death of his client. The memo was filed after giving notice to the advocate for respondent 6 Nos. 1 and 2, who were appellants in the aforesaid appeals. In spite of such intimation, respondent Nos. 1 and 2 failed to bring the legal representatives of the deceased original plaintiff on record.

8. From the judgment of the High Court it is apparent that the appeal came up for hearing on 24th April, 1997. At that stage, the counsel for the appellants again brought to the notice of the Court that his client has passed away on 25th February, 1990. The High Court directed the government pleader to take steps to bring on the record the legal representatives of the original plaintiff and posted the matter for hearing on 16th June, 1997. It appears that no actions were taken by the respondents to comply with the order passed by the High Court on 24th April, 1997. Therefore, on 6th February, 1998, Justice V. Rajagopala Reddy, J. passed the following order:- "Appeal under Section 96 CPC against the order of the Court of the IV Addl. District Judge, Visakhapatnam dt.24.09.1982 in O.S. No. 83/81.

7 This appeal coming on for orders under Rule 64 of the Appellate Side Rules of the High Court on the failure of the Appellant herein.

1. To take steps to bring on record the LRs. of the deceased sole respondent.

In the presence of G./P. for Excise for the Appellant and of Mr. M.S.R. Subramanyam, Advocate for the respondent No.1.

It is ordered as follows:

1. That the Appellant do within one week from the date of this order comply with the requisitions of the Office referred to above and;

2. That in default of compliance with the said requisitions within the time prescribed in clause 1 supra, the Appeal shall stand dismissed as against the sole respondent herein."

9. The aforesaid order was admittedly not complied with. Consequently, the appeal stood abated in terms of the order dated 6th February, 1998. It appears that thereafter CMPSR No. 49656 of 2000 was moved by respondent Nos. 1 and 2 seeking condonation of 883 days delay in filing the petition to set aside the dismissal order dated 6th February, 1998. The application was 8 accompanied by an affidavit where it is candidly admitted by respondent No.2 that the order dated 6th February, 1998 was not complied with. It was further admitted that as the order dated 6th February, 1998 was not complied with, the default order came into force and the appeal stood dismissed.

10. In this affidavit, the explanation given is that the predecessors of the officer, who affirmed the affidavit dated 11th July, 2000 came to know about the dismissal of the appeal during the course of investigation in original O.S. No. 6 of 2000 which had been filed by the widow and the children of the deceased original plaintiff, i.e., sole respondent in the appeal. It is also admitted that thereafter, an application was filed for setting aside the order of abatement dated 6th February, 1998, but, without any application seeking condonation of delay of 883 days in filing the petition. To cover the foresaid lapse, CMP No. 21118 of 2003 was filed seeking condonation of delay of 883 days in filing the petition.

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11. Thereafter CMPSR No. 58644 of 2000 was filed on 17th August, 2000 with a prayer to condone the delay of 3703 days to bring the legal representatives on record. CMPSR No. 58646 of 2000 was filed to bring the legal representatives of the deceased original plaintiff on record and CMPSR No. 58645 of 2000 to set aside the order of dismissal in AS No. 8 of 1985 dated 6th February, 1998 was filed. These applications were subsequently numbered as noted in the heading of the impugned judgment.

12. It appears from the impugned order of the High Court and CMPSR No. 58644 of 2000 was numbered as CMP no. 17186 of 2000 on 17th August, 2000 and listed before the Court on 27th September, 2000. The High Court granted two weeks time for filing the counter. The aforesaid CMP was posted for hearing before the bench on 16th October, 2000 (Venkatanarayan,J.). At that time, counsel for the deceased original plaintiff submitted that 1 his client had died in 1990 and he had no instructions. Therefore, the Court directed to issue notice to the parties on the petition. Even at that stage the government pleader did not bring to the notice of the Court that the applications filed by respondent Nos. 1 and 2 to set aside the order of dismissal and to bring the legal representatives on record were pending consideration.

13. Thereafter it appears the matter was adjourned on a number of occasions from 27th June, 2001 to 9th April, 2002. Surprisingly, on 3rd June, 2002 the government pleader again took time from the Court to verify whether any separate application was filed for restoration of the appeal and whether any such application was pending or not. Thereafter the matter was not pursued by the government pleader.

14. In the meantime, the alleged beneficiaries to whom Pattas had been granted by the Government Poramboke 1 in the year 1979 filed CMP No. 21705 of 2000, seeking permission of the Court to come on record as the third appellant in the appeal. In the impugned order, it is also pointed out that the pendency of the applications had come to the notice of the Court intermittently. It appears that the application to condone the delay in filing the petition for setting aside the order of dismissal was filed, when the lapse was pointed by the Court.

15. Thereafter, it seems that without the adjudication of any of the applications on merits, the appeal was listed for hearing before the Bench, which culminated into passing the judgment and order dated 19th August, 2003, subject matter of the present appeal. By the aforesaid judgment, the High Court has allowed all the applications restored the appeal posted it for hearing on 25th August, 2003.

16. This Court while issuing notice in the SLP on 15th December, 2003 directed that "in the meantime, 1 proceedings in the appeal pending in the High Court shall remain stayed". Therefore, it is evident that the situation today is as it was when the order was passed on 6th February, 1998, i.e., appeal filed by the respondent Nos. 1 and 2 stood abated and hence dismissed.

17. We have heard the learned counsel for parties. Mr. P.S. Narasimha, senior advocate, appearing for the appellant submitted that the impugned order of the High Court cannot be justified on any legal ground. He submits that the High Court having itself recorded the utter negligence of the respondents in pursuing the appeal at every stage, without any justification, condoned the delay. The learned senior counsel pointed out that there was no explanation, much less any plausible explanation to justify the delay of 3703 days in filing the application for bringing on record the LRs. of the sole respondent or for the delay in filing the application for setting aside the order dated 6th February, 1998. It was further submitted that there was no justification to 1 permit the respondent No.3 to be impleaded as a party in the appeal. Learned counsel relied on the judgment of Jagdish Singh1 in support of the submission that the law of limitation has to be enforced in its proper prospective. Even though the Courts have power to condone the delay, it can not be condoned without any justification. Such an approach would result in rendering the provisions contained in the Limitation Act redundant and inoperative.

18. On the other hand, learned counsel for the respondents relied on the judgments of this Court in the Krishnamurthy2 , Kini & Ors.3 and Sardar Amarjit Singh Kalra (dead) by Gupta (dead) by LRs.4 and submitted 1 (2010)8 SCC 685 2 (1998) 7 SCC 123 3 (2003) 10 SCC 691 4 (2003) 3 SCC 272 1 that the High Court in condoning the delay has merely advanced the cause of substantial justice.

19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition,

20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. 5 [1988] INSC 330; (1987) 2 SCC 107 1

21. In the case of Sardar Amarjit Singh Kalra (supra), this Court again emphasized that provisions contained in the Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that laws of procedure are meant to regulate effectively, assist and aid the object of doing a substantial and real justice and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws. Annabai Devram Kini & Ors, (Supra), this Court again reiterated that in as much as abatement results in denial of hearing on the merits of the case, the provision of an abatement has to be construed strictly. On the other hand, the prayer of setting aside abatement and the 1 dismissal consequent upon abatement had to be considered liberally. It was further observed as follows:- "The Courts have to adopt a justice oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court."

22. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:- "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."

"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient 1 cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."

23. Let us now examine as to whether the High Court was justified in condoning the delay in the peculiar facts of the presence case. The High Court in its judgment records the following conclusions:- "(1) The Government Pleader having filed the appeal on 18.2.1983 has taken three long years to get the appeal numbered. (2) The sole respondent died in 1990. The learned counsel for the respondent submits that he served a letter on the learned Government Pleader bringing to his notice about the death of his client in 1990 itself. Since the letter is not traced we are not giving much importance to that fact. But at the same time this fact was brought to the notice of the Government Pleader on 24.2.1997 when the appeal was listed for hearing. (3) Even though the Court gave sufficient time the Government Pleader has not taken any steps to bring LRs. on record. 1 (4) After one year the Court passed a Conditional Order on 6.2.1998 and the appeal was dismissed for not bringing the LRs. on record. (5) After two more years the concerned officials of the Government and the Government Pleader in office at the relevant point of time, filed some applications, which are not in order. (6) Even then they have not bestowed any attention either to comply with the defects in filing the application or in getting the orders are passed on these applications. But at the same time they went on taking time without knowing for what purpose they were taking time.

In the result an appeal which would have been disposed of in 1997 remained pending all these years mainly due to the negligence on the part of the Government Pleader in office.

Thereafter at the two stages, the High Court records that:- "In the normal course we would have thrown out these applications without having second thought in the matter.............."

"We have already observed that in the normal course we would have dismissed the applications for severe latches on the part of the appellants and their counsel."

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24. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay.

25. This is especially so in view of the remarks made by the High Court about the delay being caused by the inefficiency and ineptitude of the government pleaders. The displeasure of the Court is patently apparent from the impugned order itself. In the opening paragraph of the impugned order the High Court has, rather sarcastically, dubbed the government pleaders as without merit and ability. Such an insinuation is clearly discernable from the observation that "This is a classic case, how the learned government pleaders appointed on the basis of merit and ability (emphasis supplied) are discharging their function protecting the interest of their clients". Having said so, the High Court, graphically narrated the clear dereliction of duty by the concerned 2 government pleaders in not pursuing the appeal before the High Court diligently. The High Court has set out the different stages at which the government pleaders had exhibited almost culpable negligence in performance of their duties. The High Court found the justification given by the government pleaders to be unacceptable. Twice in the impugned order, it was recorded that in the normal course, the applications would have been thrown out without having a second thought in the matter. Having recorded such conclusions, inexplicably, the High Court proceeds to condone the unconscionable delay.

26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach 2 adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers. 2

27. The order of the High Court, in our opinion, is based purely on the personal perceptions and predilections of the Judges on the bench. The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality. In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the "justice oriented approach", the bedrock of which is fairness and impartiality. Judges at all levels in this country subscribe to an oath when entering upon office of Judgeship, to do justice without fear or favour, ill will or malice. This commitment in form of a solemn oath is to ensure that Judges base their opinions on objectivity and impartiality. The first casualty of prejudice is objectivity and impartiality. It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice. We may notice here 2 the observations made by a Constitution Bench of this Naim 6 , which are of some relevance in the present context. In Paragraph 11 of the judgment, it was observed as follows:- "If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct, justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve."

6 [1963] INSC 60; (1964) 2 SCR 363 2

28. We are of the considered opinion that the caustic remarks made by the High Court, against the government pleaders and the Court staff clearly exhibits a departure from the principles quoted above.

29. We are of the considered opinion that the judgment of the High Court is unsustainable either in law or in equity. Consequently, the appeals are allowed. The impugned judgment of the High Court is set aside with no order as to costs. ...................................J.

[B.Sudershan Reddy] ...................................J.

[Surinder Singh Nijjar] New Delhi;

MEHMOOD RAHMAT ULLAH KHAN & ANR. v. NIYAZ AHMAD KHAN [2011] INSC 220 (23 February 2011)

Judgement

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS CIVIL APPEAL NO(s). 1264 OF 2009

MEHMOOD RAHMAT ULLAH KHAN & ANR. Appellant (s)

VERSUS

NIYAZ AHMAD KHAN Respondent(s)

(With prayer for interim relief and office report ) WITH Civil Appeal NO. 1073 of 2009
(With prayer for interim relief and office report) Date: 23/02/2011 This Appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE MARKANDEY KATJU HON'BLE MRS. JUSTICE GYAN SUDHA MISRA For Appellant(s) Mr. Irshad Ahmad,Adv.

Mr. Bimal Roy Jad, Adv.

For Respondent(s) Mr. Bimal Roy Jad,Adv.

Mr. Vikram Rathore, Adv.

Mr. Irshad Ahmad, Adv.

UPON hearing counsel the Court made the following O R D E R CIVIL APPEAL NO. 1264 OF 2009 The appeal is disposed of accordingly.

CIVIL APPEAL NO. 1073 OF 2009 The appeal is allowed with no order as to costs.

( Deepak Mansukhani ) ( Indu Satija ) Court Master Court Master (The signed order is placed on the file) REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1264 OF 2009 MEHMOOD RAHMAT ULLAH KHAN & ANR. Appellant (s) VERSUS NIYAZ AHMAD KHAN Respondent(s) WITH
CIVIL APPEAL NO. 1073 OF 2009 O R D E R CIVIL APPEAL NO. 1264 OF 2009 Heard learned Counsel for the parties.

This Appeal has been filed against the impugned Judgment dated 8.10.2007 passed by the High Court of Allahabad.

The appellant herein is a landlord of premises in question and the respondent is the tenant. The appellant filed a Petition under Section 21(1)(a) of U.P. Urban Building Act, 1972 alleging that he has bonafide need of the premises and hence the tenant should be evicted. The prescribed authority found that the landlord could not establish his bonafide need and hence it rejected the Petition. The tenant filed an appeal and the Appellate Court has upheld the finding that there is no bonafide need of the premises of the landlord.

-2- Surprisingly, the High Court while upholding the finding that there is no bonafide need of the landlord has allowed the Writ Petition by the impugned Judgment dated 8.10.2007 by increasing the rent. It is well settled that a High Court in Writ Petition cannot interfere with the finding of fact, regarding bonafide need.

We are also of the opinion that under Section 21, there is no question of enhancement of rent. That may be done under some other provision of the Act. Accordingly, we dispose of this appeal with the direction that the impugned Judgment is set aside and Judgment of First Appellate Court rejecting the Petition under Section 21 is upheld. The direction increasing rent is set aside.

The appeal is disposed of accordingly.

CIVIL APPEAL NO. 1073 OF 2009 This Appeal has been filed against the impugned Judgment dated 8.10.2007 passed by the High Court of Allahabad.

The facts have been set out in the impugned judgment and hence we are not repeating the same here.

-3- Under Section 21(1)(a) of U.P. Urban Buildings Act, 1972, the prescribed authority can either allow the Petition for eviction of the tenant or it can refuse to do so. It cannot enhance the rent under those proceedings. Hence, we set aside the impugned Judgment of the High Court.

The appeal is allowed with no order as to costs.

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

(MARKANDEY KATJU) ..........................J.

(GYAN SUDHA MISRA) NEW DELHI FEBRUARY 23, 2011.

HARYANA STATE WAREHOUSING CORP.& ORS. v. JAGAT RAM & ANR. [2011] INSC 193 (23 February 2011)

Judgement

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.2659 OF 2011

Haryana State Warehousing Corporation ... Petitioner

V/s

Jagat Ram & Anr. ... Respondents

WITH SPECIAL LEAVE PETITION (CIVIL) NO.451 OF 2011

Ram Kumar ... Petitioner

V/s

Jagat Ram & Anr. ... Respondents

ALTAMAS KABIR, J.

1. Two Special Leave Petitions have been filed against the judgment and order dated 11th October, 2 2010, passed by the Division Bench of the Punjab & Haryana High Court in L.P.A. No.490 of 2010, setting aside the promotion granted to the Petitioner in Special Leave Petition (Civil) No.451 of 2011. While Special Leave Petition (Civil) No.451 of 2011 has been filed by Ram Kumar, the Respondent No.3 before the High Court, setting aside his promotion to the post of Assistant Manager (Administration) in the Haryana State Warehousing Corporation, Special Leave Petition (Civil) No.2659 of 2011 has been filed by the Warehousing Corporation challenging the same order.

2. The facts briefly stated disclose that the Haryana State Warehousing Corporation, hereinafter referred to as "the Corporation", framed its Rules and Regulations known as the Haryana Warehousing Corporation (Officers & Staff) Regulations, 1994, hereinafter referred to as "the 1994 Regulations" in exercise of the powers conferred by Section 42 3 of the Housing Corporation Act, 1962, with the previous sanction of the State Government. Regulation 8 of the 1994 Regulations deals with promotions in the Corporation. Regulation 8(2) of the 1994 Regulations provides as follows :- "8(2). All promotions unless otherwise provided, shall be made on seniority-cum- merit basis and seniority alone shall not confer any right to such promotions."

3. The Respondent No.3, Ram Kumar, was promoted to the post of Assistant Manager (Administration) in the Corporation on account of his excellent service record in comparison to that of Jagat Ram, who is Respondent No.1 in both the Special Leave Petitions. Challenging the said decision, Jagat Ram filed a Writ Petition before the Punjab & Haryana High Court on 17.11.2009. The learned Single Judge dismissed the Writ Petition filed by Jagat Ram after taking into consideration the service records of both Jagat Ram and Ram Kumar and upon holding that the service record of Ram Kumar 4 was superior to that of Jagat Ram and that the Corporation had not committed any error in granting promotion to Ram Kumar.

4. Against the order of the learned Single Judge, Jagat Ram filed a Letters Patent Appeal, being 490 of 2010, before the Division Bench of the Punjab & Haryana High Court, which was allowed. The Division Bench while allowing the Letters Patent Appeal filed by Jagat Ram held that although promotion to the post of Assistant Manager (Administration) is to be effected on the basis of seniority-cum-merit and not seniority alone, the promotion given to Ram Kumar was based on his gradings and on a comparative assessment of his merit as against the merit of the Respondent No.1, Jagat Ram. The Division Bench further held that since the criterion for promotion to the post of Assistant Manager (Administration) was seniority- cum-merit and not merit-cum-seniority, the 5 promotion given to Ram Kumar was not sustainable since such promotion had been made predominantly on the principle of merit, in contravention of the provisions of the Regulations. The Division Bench directed the concerned Respondents to redo the exercise for promotion to the post of Assistant Manager in accordance with the provisions of the Regulations in force.

5. Appearing for the Special Leave Petitioner in Special Leave Petition (Civil) No.451 of 2011, Mr. D.P. Mukherjee, learned Advocate, contended that the Division Bench of the High Court had misunderstood and consequently misapplied the regulation governing appointments on the ground of seniority-cum-merit, particularly, since it provided that seniority alone could not confer right to promotions on the basis of seniority-cum- merit. Mr. Mukherjee submitted that if it was only a question of seniority-cum-merit, then the 6 reasoning of the Division Bench may have been acceptable. However, such not being the case and a stipulation having been made that seniority alone would not govern promotions on the basis of seniority-cum-merit, the Division Bench of the High Court had erred in giving emphasis to seniority when the Petitioner, Ram Kumar, possesses far superior qualifications than the Respondent No.1, Jagat Ram.

6. Mr. Mukherjee urged that on account of the addition of the expression "seniority alone would not confer right to promotion", it must be understood that merit would also require consideration for the purpose of granting promotion, even on the basis of seniority-cum- merit. Mr. Mukherjee urged that since Ram Kumar had been assessed as "outstanding" over 10 years, while Jagat Ram had been assessed "outstanding" only for one year, it was in keeping with 7 Regulation 8 of the 1994 Regulations that Ram Kumar had been preferred to Jagat Ram. In support of his submissions, Mr. Mukherjee referred to the decision Chairman, Cauvery Gramina Bank & Ors. [(1996) 9 SCC 677], in which this Court held that while granting promotion on the basis of seniority-cum-merit, the totality of the service record of the eligible candidates had to be considered and consequently since Ram Kumar had superior credentials in comparison to Jagat Ram, he had been rightly promoted to the post of Assistant Manager and the judgment and order of the Division Bench was erroneous and was liable to be set aside and that of the learned Single Judge was liable to be sustained.

7. The same stand was taken on behalf of the Corporation in Special Leave Petition (Civil) No.2659 of 2011 and it was urged by Mr. Alok 8 Sangwan, learned Advocate, appearing for the Corporation, that the promotion of Ram Kumar had been effected in accordance with Regulation 8(2) of the 1994 Regulations and while considering the seniority of the eligible candidates, the Corporation had given effect to the second part of the Regulation which categorically indicated that seniority alone would not be the criteria for promotion. Mr. Sangwan also urged that the order of the Division Bench of the High Court was liable to be set aside.

8. The submissions made by Mr. D.P. Mukherjee and Mr. Alok Sangwan were opposed on behalf of the Respondent No.1 in both the Special Leave Petitions, Jagat Ram, and it was urged by Mrs. Kanwaljit Kochar, learned Advocate, that the Division Bench had rightly interpreted the principle in relation to promotions made on the basis of seniority-cum-merit. Mrs. Kochar submitted 9 that if merit was to play a larger role than seniority in effecting such promotions, then the procedure to be adopted would have been merit-cum- seniority and not seniority-cum-merit. According to her, the decision in Jagathigowda C.N.'s case (supra) does not really help the case of the Petitioners since this Court had merely indicated in the facts of that case, based on the NABARD Circular dated 7.4.1986, that the selection of the eligible candidates should be based on performance of the respective candidates in the Bank. It was further observed that the instructions of NABARD being in the nature of guidelines, the promotions made by the Bank could not be set aside unless the same were arbitrary and unfair.

9. The law relating to promotions to be granted on the basis of seniority-cum-merit has been settled by this Court in various decisions, including the case of the State of Mysore vs. Syed Mahmood [AIR 10 1968 SC 1113], wherein it was observed that when promotion is to be made by selection on the basis of seniority-cum-merit i.e. seniority subject to the fitness of the candidates to discharge the duties of the post from amongst any person eligible for promotion, the State Government had erred in promoting juniors ranking below the candidates in order of seniority and that such promotions were irregular. Of course, the question posed in these Special Leave Petitions gives rise to another question regarding the latter part of Regulation 8(2) of the 1994 Regulations which indicates that seniority alone would not confer any right to be promoted. In that regard, this Court held in the above-mentioned case that where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be 11 promoted.

10. That principle has been followed ever since and was reiterated by a Three-Judge Bench of this Court Babu & Ors. [(1998) 6 SCC 720], wherein the criterion for promotion on the basis of seniority- cum-merit fell for consideration with regard to the same-day appointees. It was held that seniority- cum-merit in the matter of promotion contemplates that given the minimum necessary merit requisite for efficiency of administration, a senior candidate, even though less meritorious, would have priority and a comparative assessment of merit is not required to be made. The said view was again repeated in the case of K. Samantaray vs. National Insurance Co. Ltd. [(2004) 9 SCC 286]. While considering the concepts relating to promotion on the basis of seniority-cum-merit and merit-cum- seniority, reference was made to an earlier 12 decision of this Court in Sant Ram Sharma vs. State of Rajasthan [1967] INSC 168; [AIR 1967 SC 1910], in which it was observed that the principles of seniority-cum-merit and merit-cum-seniority are completely different. For the former, greater emphasis is laid on seniority though it is not the determinative factor while in the latter merit is the determining factor. A third mode described as "hybrid mode of promotion" contemplates a third category of cases where seniority is duly respected and at the same time merit is also appropriately recognized. In yet another decision in the case of Harigovind Yadav vs. Rewa Sidhi Gramin Bank [(2006) 6 SCC 145], this Court reiterated the principles explained in B.V. Sivaiah's case (supra) holding that where procedure adopted does not provide the minimum standard for promotion, but only the minimum standard for interview and does selection with reference to comparative marks, it is contrary to the rule of "seniority-cum-merit".

13

11. In applying the principle of granting promotion on the basis of seniority-cum-merit, what is important is that the inter se seniority of all candidates who are eligible for consideration for promotion should be identified on the basis of length of service or on the basis of the seniority list as prepared, inasmuch as, it is such seniority which gives a candidate a right to be considered for promotion on the basis of seniority-cum-merit. As was indicated in Syed Mahmood's case (supra) where the promotion is based on seniority-cum- merit, the officer cannot as a matter of right claim promotion by virtue of his seniority alone, which principle is also reflected in Regulation 8(2) of the 1994 Regulations. Consequently, the candidate had to be fit to discharge the duties of the higher post and if his performance was assessed not to meet such a requirement, he could be passed 14 over and those junior to him could be promoted despite his seniority in the seniority list.

12. In the instant case, the only feature which weighed with the Corporation in granting promotion to Ram Kumar was a comparative assessment between his performance and that of Jagat Ram. While Jagat Ram had got only one "outstanding" remark in 10 years, Ram Kumar had obtained "outstanding" remark in all the 10 years. Accordingly, he was preferred to Jagat Ram, whose qualifications were inferior to that of Ram Kumar by comparison. But, as has been rightly held by the Division Bench of the High Court, in cases of seniority-cum-merit, the comparative assessment is not contemplated and is not required to be made.

13. There is nothing on record to indicate that Jagat Ram was not capable of discharging his functions in the promoted post of Assistant Manager (Administration). He was denied promotion only on 15 the ground of the superior assessment that had been made in favour of Ram Kumar, which, in our view, runs contrary to the concept of seniority-cum- merit.

14. There is, therefore, no reason to differ with the views of the Division Bench of the High Court and both the Special Leave Petitions, filed by Ram Kumar and the Corporation, are accordingly dismissed.

15. There will, however, be no order as to costs. ................................................J.

(ALTAMAS KABIR) New Delhi Dated:23.02.2011 16 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.2659 OF 2011 Haryana State Warehousing ...Petitioners Corporation & Anr.

vs.

Jagat Ram & Anr. ...Respondents WITH
SPECIAL LEAVE PETITION (CIVIL) NO.451 OF 2011 Ram Kumar ...Petitioner vs.

Jagat Ram & Ors. ...Respondents

CYRIAC JOSEPH, J.

1. I had the benefit of reading the judgment of my learned brother Altamas Kabir, J. I respectfully agree with the decision to dismiss the Special Leave Petitions. However, I wish to support and supplement the decision through this separate but concurring judgment.

17

2. The dispute in these Special Leave Petitions relates to the claim of Jagat Ram [Respondent No.1 in S.L.P. (C) No. 2659 of 2011] for appointment to the post of Assistant Manager (Administration) in Haryana State Warehousing Corporation [Petitioner No.1 in S.L.P. (C) No.2659 of 2011].

3. Jagat Ram had filed Civil Writ Petition No.18891 of 2009 in the High Court of Punjab and Haryana, challenging the appointment of Ram Kumar [Petitioner in S.L.P. (C) No.451 of 2011 and respondent No.2 in S.L.P. (C) No.2659 of 2011] as Assistant Manager (Administration) and seeking a direction to Haryana State Warehousing Corporation (hereinafter referred to as "the Corporation") to promote Jagat Ram as Assistant Manager (Administration) w.e.f. 1.8.2009. The said Writ Petition was dismissed by a Single Bench of the High Court on 9.12.2009. Thereupon, Jagat Ram filed Letters Patent Appeal No.490 of 2010 before a Division Bench of the High Court and vide judgment dated 11.10.2010, the Division Bench allowed the L.P.A. and set aside the promotion of Ram Kumar, with a direction to the Corporation to redo the exercise and complete the same as expeditiously as possible. Aggrieved by the judgment of 18 the Division Bench, the Corporation and Ram Kumar have filed these Special Leave Petitions.

4. Jagat Ram was first appointed as Godown Attendant-cum- Watchman in the Corporation and he joined the service on 25.4.1979. He was promoted as Clerk-cum-Typist on 23.12.1981. He was further promoted as Establishment Assistant on 16.5.1996.

5. Ram Kumar was first appointed in the Corporation as Junior Scale Stenographer and he was promoted as Establishment Assistant on 10.11.2004.

6. Thus, admittedly, Jagat Ram was senior to Ram Kumar in the cadre of Establishment Assistant.

7. A vacancy of Assistant Manager (Administration) arose on 1.8.2009 due to the retirement of one V.K. Chakarvarty, Assistant Manager (Administration) on 31.7.2009. Appointment to the post of Assistant Manager (Administration) is governed by the provisions of Haryana State Warehousing Corporation (Officers and Staff) Regulations, 1994 (hereinafter referred to as "the Regulations"). According to Regulation 8(1) of the 19 Regulations, the method of recruitment to the post of Assistant Manager (Administration) is by promotion from amongst Establishment Assistants. Regulation 8(2) of the Regulations provides as follows :

"All promotions, unless otherwise provided, shall be made on seniority-cum- merit basis and seniority alone shall not confer any right to such promotions."

According to Regulation 6 of the Regulations, no person shall be appointed to any post in the service unless he is in possession of qualification and experience specified in Appendix-B to the Regulations. As per clause 19 of Appendix-B to the Regulations, for promotion to the post of Assistant Manager (Administration) 5 years' experience as Establishment Assistant is required. Thus, it is not in dispute that as per the Regulations the vacancy in the cadre of Assistant Managers (Administration) was to be filled by promotion on the basis of seniority-cum-merit from among Establishment Assistants having the required experience of 5 years.

8. As already indicated, a vacancy of Assistant Manager (Administration) arose on 1.8.2009. As on that date Ram Kumar did not have 5 years' experience as Establishment 20 Assistant, as he was promoted to the post of Establishment Assistant only on 10.11.2004. However, Jagat Ram had more than 5 years' experience as he was promoted to the post of Establishment Assistant on 16.5.1996. The vacancy of Assistant Manager (Administration) which arose on 1.8.2009 was filled up only on 17.11.2009 by promoting Ram Kumar as Assistant Manager (Administration). By 17.11.2009, Ram Kumar also had acquired experience of 5 years in the cadre of Establishment Assistants. But Jagat Ram was admittedly senior to Ram Kumar.

9. In the Writ Petition filed by Jagat Ram, he had contended that the promotion of Ram Kumar to the cadre of Assistant Managers (Administration) was illegal as he did not possess the required experience of 5 years on the date of occurrence of the vacancy i.e. 1.8.2009. It was alleged that the vacancy which arose on 1.8.2009 was deliberately kept vacant for more than 3 months and that the filling up of the vacancy was purposefully delayed to enable Ram Kumar to acquire the minimum required experience of 5 years as Establishment Assistant. It was also alleged that since Ram Kumar was working as Junior Scale Stenographer-cum- Personal Assistant to the Managing Director of the 21 Corporation, the action of the respondents in delaying the filling up of the vacancy of Assistant Manager (Administration) was mala fide. Jagat Ram also claimed that being the senior-most and meritorious amongst the Establishment Assistants, he was the only eligible candidate for promotion to the post of Assistant Manager (Administration) when it fell vacant on 1.8.2009.

10. The Writ Petition filed by Jagat Ram was dismissed on 9.12.2009 by a Single Bench of the High Court apparently even without issuing notice to the respondents. In the judgment dated 9.12.2009, the learned Single Judge held that Ram Kumar was eligible for promotion on the date when the case for promotion was considered. It was also observed that the service records placed on record by the petitioner (Jagat Ram) clearly showed that the record of Ram Kumar was much better than that of Jagat Ram. The learned Single Judge rejected the contention that undue favour was shown to Ram Kumar by the Managing Director. Aggrieved by the judgment of the learned Single Judge, Jagat Ram filed L.P.A. No. 490 of 2010 which was allowed by the Division Bench of the High Court.

22

11. In the impugned judgment dated 11.10.2010 in L.P.A. No.490 of 2010, the Division Bench of the High Court held that as per the Regulations governing promotion to the post of Assistant Manager (Administration), the criterion for promotion is seniority-cum-merit, but Ram Kumar was wrongly and illegally given promotion following the criterion of merit or even merit-cum-seniority. Relying on the judgment of this Court in State of Mysore and another v. Syed Mahmood and others (AIR 1968 SC 1113), the Division Bench pointed out that when promotion is to be made on the basis of seniority-cum-merit, a senior can be overlooked only when he is found unfit for the higher post. The Division Bench rejected the contention of the Corporation that the words "seniority alone shall not confer any right to such promotions" appearing in Regulation 8(2) of the Regulations indicated that a junior can be preferred to a senior on the basis of merit. According to the Division Bench, the words quoted above only clarify and fortify that promotion is required to be made by applying the criterion of seniority- cum-merit. The Division Bench found that the selection and promotion of Ram Kumar was predominantly on the principle of merit and hence it was in contravention of the provisions contained in the Regulations. Accordingly, the 23 promotion of Ram Kumar was set aside and the Corporation was directed to redo the exercise and complete the same as expeditiously as possible but strictly in accordance with the Regulation in force. It may be observed that the Division Bench did not consider the question whether eligibility of the candidates should have been considered with reference to the date of occurrence of the vacancy.

12. The first issue that arises for consideration in these Special Leave Petitions is the effect of the words "seniority alone shall not confer any right to such promotions" appearing in Regulation 8(2) of the Regulations.

13. The learned counsel for the petitioners in the Special Leave Petitions contended that those words gave freedom or right to the Corporation to prefer a junior to his senior on the basis of better merit. It was contended that in view of those words, quoted above, seniority should yield to merit. The contention of the learned counsel for the petitioners is devoid of merit. As rightly held by the Division Bench of the High Court, the words "seniority alone shall not confer any right to such promotions" only clarify the earlier part of Regulation 8(2), which 24 stipulates that "all promotions, unless otherwise provided, shall be made on the seniority-cum-merit basis". The clear mandate of Regulation 8(2) is that promotions shall be made on seniority-cum-merit basis and not on the basis of seniority alone or merit alone. To emphasise that promotion cannot be claimed as a matter of right on the basis of seniority and that along with seniority, merit also will be considered, it is clarified in the Regulation itself that "seniority alone shall not confer any right to such promotions". The above quoted words do not in any way dilute or vary the principle that promotions shall be made on seniority-cum-merit basis. They only clarify the meaning or implication of the expression "seniority-cum- merit". In this context, it may be pointed out that in State of Mysore and another v. Syed Mahmood and others (AIR 1968 SC 1113), this Court has held as follows:

"(4) ..... Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted."

25

14. The next issue that arises for consideration is whether the impugned promotion of Ram Kumar was on the basis of seniority-cum-merit as required by Regulation 8(2) of the Regulations. For deciding the said issue, it is necessary to understand the meaning of the expression "seniority-cum-merit".

15. In State of Kerala and another v. N.M. Thomas and others [(1976) 2 SCC 310], this Court held that seniority- cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though less meritorious shall have priority.

16. In B.V. Sivaiah and others v. K. Addanki Babu and others [(1998) 6 SCC 720], a three Judges' Bench of this Court considered the question "what is meant by seniority- cum-merit?" and held as follows :

"18. We thus arrive at the conclusion that the criterion of "seniority-cum- merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum 26 standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum- merit."

17. In Union of India and others v. Lt. Gen. Rajendra Singh Kadyan and another [(2000) 6 SCC 698], this Court held that "seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed, and subject to fulfilling the said requirement, the promotion is based on seniority. It was also held that the requirement of assessment of comparative merit was absent in the case of "seniority-cum-merit".

18. Following the decision in B.V. Sivaiah (supra), this Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank and others [(2006) 6 SCC 145] held that where the procedure adopted did not provide the minimum standard for promotion, but only the minimum standard for interview, and did the selection with reference to comparative marks, it was contrary to the rule of "seniority-cum-merit". This Court in that case found that the procedure was not one of 27 ascertaining the minimum necessary merit and then promoting the candidates with the minimum merit in accordance with seniority, but assessing the comparative merit by drawing up a merit list, the assessment being with reference to marks secured for seniority, performance, postings at rural/difficult places and interview.

19. In Rajendra Kumar Srivastava and others v. Samyut Kshetriya Gramin Bank and others [(2010) 1 SCC 335], while considering the question "whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotions are to be made on the principle of seniority-cum-merit?", this Court observed as follows :

"11. It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of "seniority" and the principle of "merit- cum-seniority". Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote 28 the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard-and- fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not militate against the principle of seniority-cum-merit.

12. xxx xxx xxx

13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognised and accepted as complying with the principle of "seniority-cum-merit". What would offend the rule of seniority- cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the 29 functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit."

20. In Rupa Rani Rakshit and others v. Jharkhand Gramin Bank and others [(2010) 1 SCC 345], the Bank did not subject eligible candidates to any process of assessment to ascertain any specified minimum merit, for the purpose of promoting candidates who possessed the minimum merit, on the basis of seniority. On the other hand, the Bank proceeded to assess their inter se merit with reference to four criteria (period of service, educational qualification, performance during three years and interview) by allocating respectively maximum marks of 40, 6, 24 and 30 and thus proceeded to promote those who had secured higher marks in the order of merit. This Court held that such promotions were not on seniority-cum-merit basis.

21. Though learned counsel for the petitioners relied on the decision of this Court in Jagathigowda, C.N. & Others v. Chairman, Cauvery Gramina Bank & Others [(1996) 9 SCC 677], the said decision cannot support the case of the petitioners, because, in the said case the guidelines applicable to the promotions had specifically provided that 30 "the selection of the eligible candidates should be based on performance of the respective candidates in the Bank". However, learned counsel invited our attention to the following observation in paragraph 8 of the judgment:

"... It is settled proposition of law that even while making promotions on the basis of seniority-cum-merit, the totality of the service record of the officer concerned has to be taken into consideration. ..."

The above observation only means that, for the purpose of considering whether the officer fulfils the requirement of minimum merit or satisfies the benchmark previously fixed, the totality of his service record has to be taken into consideration. It does not mean that a further assessment of comparative merit on the basis of the service record is warranted even after the officers are found to fulfil the requirement of minimum merit and satisfy the benchmark previously fixed.

22. Thus it is the settled position that the criterion of seniority-cum-merit is different from the criterion of merit and also the criterion of merit-cum-seniority. Where the promotion is based on seniority-cum-merit, the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the 31 duties of the higher post, he may be passed over and an officer junior to him may be promoted. Seniority-cum-merit means that, given the minimum necessary merit required for efficiency of administration, the senior, though less meritorious, shall have priority in the matter of promotion and there is no question of a further comparative assessment of the merit of those who were found to have the minimum necessary merit required for efficiency of administration. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employees. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be considered for promotion on the basis of seniority-cum- merit. The concept of "seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed and, subject to fulfilling the said requirement, promotion is based on seniority. There is no further assessment of the comparative merits of those who fulfil such requirement of minimum merit or satisfy the benchmark previously fixed. On the other hand, the 32 principle of "merit-cum-seniority" puts greater emphasis on merit and ability and seniority plays a less significant role. Seniority is given weightage only when merit and ability are more or less equal among the candidates considered for promotion.

23. In the light of the above legal position with regard to the principle of "seniority-cum-merit", it is clear that the impugned promotion of Ram Kumar was not on the basis of seniority-cum-merit but was on the basis of merit. The written statement filed by the Corporation in L.P.A. No. 490 of 2010 reveals that while considering the candidates for promotion, both Jagat Ram and Ram Kumar were found suitable for promotion and that even though Jagat Ram was senior to Ram Kumar, Ram Kumar was given promotion on the ground that he had better merits. Justifying the promotion of Ram Kumar in preference to the appellant Jagat Ram, it was stated in the written statement as follows :

"2. xxx xxx xxx As is evident from a perusal of Annexure P-4, all the Assistants who were eligible for promotion to the rank of Assistant Manager (Administration) having completed 5 years of service as Assistant were considered on the basis of seniority- 33 cum-merit by the competent authority. The senior most candidate i.e. Shri R.K. Nayyar had bad service record in as much as there were three charge-sheets pending under Rule-7 against him besides penalty imposed upon him. The second candidate in seniority was the petitioner Shri Jagat Ram, whose ACR dossier for the last 10 years contained one grading as Very Good and 9 were good. The third candidate, Smt. Pushpa Devi again has 8 very good, = outstanding, one good and = average grading in her ACR resume. Penalty of stoppage of one increment without cumulative effect was imposed upon her on 18.12.2008. She was also issued a warning on 04.12.2008. The respondent No.3, Shri Ram Kumar, had all the 10 Annual Confidential Reports as Outstanding and there were no departmental proceedings pending or concluded against him and thus on the basis of seniority-cum- merit as provided in the Regulations, the candidature of respondent No.3 was found to be most suitable and accordingly the competent authority, vide detailed and reasoned orders, promoted the respondent No.3 to the rank of Assistant Manager (Administration). ..."

In reply to Jagat Ram's contention that selection had to be made from a panel of three suitable officials and that Ram Kumar could not have been considered as he was at serial No.4, the Corporation stated in the written statement as follows :

"3. ...The contention is totally devoid of merits. The Chief Secretary Punjab vide Notification dated 28.06.1961, copy of 34 which is attached as Annexure R-1/1 had clarified the issue and has ordered that in the first instance, list of eligible officers/officials, who fulfil the prescribed experience etc. for promotion is to be drawn up and then out of this list, such officers/officials as are considered unsuitable for promotion are to be weeded out and a list of only those who are suitable for promotion has to be drawn up. Selection thereafter is to be confined to three suitable officers/officials of the list. ... Selection for every vacancy has, therefore, to be made from the slab of three officers/officials, who are considered fit for promotion and unless a junior among them happens to be of exceptional merit and suitability, the senior-most will be selected.

In the present case, in the Corporation there were only four Establishment Assistants who were eligible and the candidature of all the four was considered. Out of four, two were found unsuitable and out of the remaining two suitable officials, the respondent No.3 being most suitable and meritorious was selected and promoted to the post of Assistant Manager (Administration)."

Therefore, it is clear that even according to the Corporation, both Jagat Ram and Ram Kumar fulfilled the requirement of minimum merit and were suitable for promotion but Ram Kumar, though junior, was preferred as he was found to be more meritorious. This was obviously in violation of the principle of seniority-cum-merit. Since 35 both Jagat Ram and Ram Kumar fulfilled the requirement of minimum merit and were found suitable for promotion and since Jagat Ram was senior to Ram Kumar, Jagat Ram was entitled to be promoted on the basis of seniority-cum- merit. Consequently, the promotion of Ram Kumar was liable to be set aside as was rightly done by the Division Bench of the High Court.

24. In the light of the discussion above, the Special Leave Petitions are devoid of merit and hence they are dismissed.

25. There will, however, be no order as to costs.

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

CYRIAC JOSEPH New Delhi;

February 23, 2011.