/.f"^ '.'^.^•^^' €glSSJ!< ^JZ- HIGH COURT OF CHHATTISGARH AT BILASPUR Wnt Appeal No.45 of 2008 APPELLANTS: (RESPONDENTS) State of Chhattisgarh and others Versus RESPONDENT: (PETITIONER) Ramashankar Yadav JUDGMENT FOR CONSIDERATION & iie HON'BLE MR. JUSTICE R.N. CHANDRAKAR Sd'- R.N. Chandrakar Judg -rt POSTJ?QR_JUDGMBNT ON_ ^ SEFTEMBER, 2009 Sd/- JU DGE 03/9/2009 ri- .d^T'2^ S- 'VSSSK-,. S a: ^l j 36 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Aoueal No.45 of 2008 APPELLANTS: (RESPONDENTS) 1. 2. 3. 4. o. State of Chhattisgarh, Through Secretary, Departinent of PoUce & Hoine Affairs, D.K.S. Bhawaa, Mantralaya, Raipiir (CG) The Commaudajnt, 22nd Battelion, S.A.F. Maaa, Raipur(CG) The Comiaaadant, 4*b Battalion, S.A.P-, Rrfpur (CG) The D.1.0., S.A.F., Bilaspur (CGr) The D.G.P., PoUce Head Quarter, Raipur (CG) Versus RESPQNDENT: (PETITIONER) Ramashankar Yadav, Aged about 30 years, soa of Kiildipan Yadav (Dismissed ArakshaJk No.84 - 4th Battalion Vishesh Suraksha Bal Mana, Raipur (CG) at Present R/o Vfllage Sardilpur, Post Office , Mudera, Distt. Balia(U.P.) (Writ Appeal under Section 2(1) ofthe ChhatUsgarh Higli Court (Appeal to Division Bench) Act, 2006) Present: Slui Kishore Bhaduri, Additional Advocate Geneial for fhe State/ appeUaats. Shri Malay Kuiaar Bhadiui, counsel for fhe respondent. Di^lsion Beneh: Hon'ble Sltrl DIiirendra Mishra & Hoa'ble Slu-i R.N. CIiandrakar. JJ. JUDGMENT l-^l. (DeUvered on ^ September. 2009) The foUowin.g judgnient of the Court was delivered by Dllfa'endra Mishra, J. 1. This writ appeal is directed against fhe impugned order ofAnnexure- A/1 dated 29th Jauuaiy, 2008 passed in Writ Petition No.4543/2004 whereby fhe petition ffled by fhe respondent has been allowed ia terins of fhe judgment aad order dated 18-2-2000 passed in O.A. w^ •3^ ~ ^-aVS^l^ No. 1207/89 and the appeUants hereia have been directed to consider reinstatement of the respondent forthwith. 2. Hereuiafter the pardes shaU be referred to as per their description before the writ courfc 3. Briefly stated facts of the case are that the petitioner is a dismissed constable fixim 22nd BattaUon, Maaa, Raipur. He was appointed as a constable on coinpassionate ground in place of his deceased father-ia- law ia fhe year 1996. He had worked as a constable continuously fiar a period of 3 years. He was disniissed froiu active service by order dated 24-2-2000 (Auaexure-P/1) on the ground that he failed ia basic traming test despite he was aUowed 2 opporturuties, therefore, in compliance of tbe circular dated 8-5-96 he was removed from the sen'ices. The appeal preferred t>y the petitioner was further dismissed by fhe appeUate aufhority vide order dated 30-12-2000 (Annexure- P/2). The petition before the Du'ector General of PoUce was again dismissed vide order dated 8-7-2002 (Annexure-P/3). The action was challenged on the ground fhat the impugned order is contrary to the provisions of Madhya Pradesh Vishesh Sashatra Bal Niyam, 1973 (fer short fhe Rules, 1973), the same was passed wititiout giviag any opportuiuty ofheanng to the petitioner and the same is confaary to fhe departmental circulars which provide fhat while iaitiating disciplmaiy action against eiuployees of ST/SC/OBC categories, Uberal consideratioii should be taken by fhe aufhorities. 4. The respondents in fheir retum have referred Rule 37 of the Rules, 1973" and submitted fhat if the recruit fails to attam the required proficiency and fails to pass fhe recnut test at fhe end of fhe cxtended period, he inay be discharged by the Conunaadaut. The petitioner failed twice ia the recruit test, therefore, the order passed by the rIF7T -b& ifirti^ B» respondents is just aud proper aad iu accordauce with rule 37 ofthe said rules. 5. Leamed Siaele Judge has passed the impugned order and has aUowed the petition by observing thus:- "2. Leamed counsel appearing for fhe petitioner subauts that the identical question, asto whether fatling twice in recruits test at the end of the tramiag' period entails the temunation fiosi service, as required under Rule 37 of the Rules, 1973. He fiuther submits that Riiles 37 and 38 ofthe Rules, 1973, whk:b have been adapted by fhe State of Chhattisgarh, were considered by tfae Madhya Pradesh State Admmistrative Tribunal, Jabalpur m O.A. No. 1207/89 (Mahendra Siagh Vs. Coaunandaat 1 1th BattaUon) and other connected matters. Leamed Tribiuial vide order dated 18.2.2000, after havitig heard leamed coitnsel for fhe parties aUowed the petitioa and directed the respondents to reiastate fhe petitioncrs, forfhwifh in servlce. The case of the present petitioner is similar to that of fhose, who were petitioners ia O.A. No. 1207/89. 3. Learaed coitnsel appearfng for the respondents/State subinits that the subiuissions inade by leamed counsel appeariag for the petitioner are correct. This case is squarely covered by fhe judgnient aud order dated 18.2.2000, passed in the case ofMahendra Siagh (supra) by the Tnbuual." 6. Shri Kishore Bhaduri, leamed Additional Advocate General for the State/appellauts submitted fhat the order impugned has been passed on fhe basis of concession given by counsel for the State that ratio of law laid down by the Madhya Pradesh State Admirustrative Tribunal (for short 'the Tribunal') m O.A. No. 1207/89 (Mahendra Siagh V. Comiaandaat 11th Battalion) is squarely appUcable iu the facts of fhe present case. The order of the Tribunal has been filed by fhe petitioner. Froin bare perasal of fhe aforesaid order, it would be 4 '59 evident fhat dismissed constable Mahendra Singh ia the aforesaid case was appointed on 23-10-81 after his due selectioa and he was required to undei^o traming of 9 inonths. He faced the rccniits test, but failed in attamiag requisite proficiency. He was posted at Asam in aa active conipany iastead of asking Tiim to undei^o for further trammg of 6 laonths as provided in tbe Rule 37 of fhe Rules, 1973. The second test took place in fhc month^of July/August 1987. Wifhout giving him further teachiag, coactung or traitung, be was suddenly asked to appear ia the test. The respondents did not discharge him after tbe second test aad aUowed liini to continue tUl expiry of fhe notice period aad termiaated his services on 10-3-89. In these cireumstances, it was held that provisions of Rule 37 of Rules, 1973 are not maadatory, but bnty discretionaiy. Froin fhe docuinents filed by thc constable and not controverted by tbe departnaent, it is evident fhat fhe respondents have waived fhe conditions as provided under Rule 37 of the said Rules. However, ia tbe iastant case, fhe petitioner failed ia the recruits test for fhe second tiine withia the speci&ed period under Rule 37 aad fhereafter fhe petitioner was imruediately discharged frova. services. The concession given by couusel appearing for the State is based on improper and illegal iaterpretation of the order passed by the Tribuaal and coatraiy to fhe stand ofthe State ia its retiim. 7. Relyiag upon the judgment m. ttie matter of Con»mandant, llt11 Battalloa, A.P. Special PoUce (IR), Cnddapah, Cuddapah District V. B. Shanhar Naik1, it was argued that successful completion of the training is aa inbiult requireinent for continuance iu the einployment 8. On the ofher hand, Shri Malay Kuuiar Bhadiui, leamed couiisel appearrag for fhe respondent/petitioner relyiug upon the order of this [ AIR 2003 SUPREME COURT 2249 nzfli-aiiiaai ^^iO.S^:;^ .y;"s^°"e"%. ^^^tfe. t\ ^ % s^ Court passed in the inatter ofBalkrishaa Agarwal Vs. State of C.G. fis Others2, argued that aay order passed as a consequence ofconcession givea by leamed counsel for the parties cannot be faiilted aad no ground is avaUable to the respondents to show iaterference wifh the order passed by the leamed Single Judge. 9. We have heard learaed couusel for fhe pardes. c^ 10. From perusal of the documents atuiexed with the petitiion, it is evident fhat the petitioner was allowed 2 opporttuuties to clear fhe recruits test as per Rule 37 of fhe Rules, 1973. When he failed in second opportunity also on 21-2-2000, he was renioved froai semce vide order ofAimexure-P/1 dated 24-2-2000. His appeal was subsequently disiuissed by the Deputy Inspector General of SAF (Annexure-P/ 2) and his inercy petition was agaia disnussed by fhe Director General of Police vide Annexure-P/3. The unpugned order has been passed solely on the assertion of leamed counsel fbr the petitioner fh.at Rules 37 and 38 of fhe Rules, 1973, which have been adapted by fhe State of Chhatdsgarh, were considered by the Tribunal in O.A. No. 1207/89 aad fhe Tribunal atlowed the petition aad directed thc respondents to reiastate the petitioner forfhwifh ia service. The case of the petitioner is snmlar to fhat of fhose who were petitioners ia O.A. No.1207/89. The above subniission for fhe petitioner was not controverted by leamed coiuisel for fhe State/respondeuts and it was contended that the case is squarely covered by fhe judgm.ent aad order passed by the Tribunal iu Mahendra Singh's case. Froni bare perusal of fhe order of the Tnbunal, which has been aunexed with the writ petition, it is evident that on fhe basis of conduct of the respondents ia not dischaiyug fhe petitioner after he failed ia fhe second lecruits test, it was held that the respondents have waived the conditions as provided 2 2007 (3) C.G.L.J. 85 (DB) \\ under Rule 37 of the said Rutes, whereas, ia fhe present case, the petitioner was imiuediately dischai^ed fiom semce aflter he faUed in recruits test for the second time. The concession ^iven by karaed counsel appearing for the State is based on improper and illegal iriterpretation of the order passed by the Tribunal aad contiary to fhe rctum of fhe State. ll.In the matter of B. Shankar Nalk (supra), the respondents were appointed as constabfes. One of the conditions stipulated ia fhe order was fhat fh.cy should pass laaguage test wifhin a period of probation aad in case of failure, they shaU be discharged fix>m services. Their services were discharged on the ground fhat they had failed to pass the prescribed test withia the picscnbed period of probatmn. Referring to various rules of A.P. Police Subordiuate Serrice Rules, it was beld that the appointinent order requiruig probationer to undertake training requirenient obviously ineans successful coinpletion of fhe traiaing. On probatloner's faUing to pass tramiug, be caa be terminated froin service for non-fuISUment of conditions of appointm.ent. 12.In the iustant case also, siace fhe petitioner failed to clear the above recruits test as per Rule 37 of fhe Rules, 1973, he was discbarged from. service. l3.In ttie matter of State of Maharashtra Versus Ramdas Shrinivas Nayak and another3, it has been held that a party may resUe and aa appellate court niay permit Tiim io. rare and appropriate cases to resfle froni a concession on tfae ground that fhe concession was niade on a wrong appreciation of the law aad had led to gross iajustice; but, he 3 (1982) 2 Supreme Court Cases 463 Ba"ffS33l(BE3B ^£~'^\ II '^te. 1 i« a, W ^ w, '.fseKfS'-" ^- "'^'•.-h-.-.-lirf^'''' ^•2- pSf^'-'-''"' iiiay not call in question fhe very fact of inaldng the concession as recorded ia fhe judginent. 14.In the matter ofP.K. Vasudeva and others Versus Zteaobia Bhanot4, it has been held thus:- The sequence of fhe events shows that tbe oider of Single Judge of ftie High Court dated l-5-1997 which was passed on fhe concession of fhe couusel for fhe appeUaats was acted upon when the Rent Control OfScer decided the matter after remand. The order dated 1-5-1997 which was passed by the H^h Court on agreement of fhe parties stood exhausted when fhe pardes appeared before the Rent ControUer aad fhe Rent Controller decided the inatter and thereafter fhere remaiaed notttmg to be chaUenged. If fhe appeUants wanted they could have proinptly chaUenged the order dated t-5-1997 passed by fhe High Court and obtained stay of the reniand order. The appeUaat haviag chosen not to do so, it is too late in fhe day to challenge the order dated 1-5-1997 passed by the High Court based on agreeinent of the parties. Once the counsel for the tenants conceded before the High Court that the revisiou petitions required remaad, it is no longer open to fhe tenaats to contend that fhe order dated 1-5-1997 passed by fhe High Court could not have been passed." 15.In fhe matter ofBSNL and Others Versus Snbash Chandra Kanchan aad another5, it has been held ttiat ia terms of Order 3 Rule 1 of the Code of Civil Procedure, a litigaut is represented by an advocate. A coacession inade by such an advocate is bindiag on the party whoni he represents. It has been furfher observed fhat the matter may, however, be different if a concession is luade on a question of law. A 4 (1999) 7 Supreme Court Cases 377 5 (2006) 8 Supreme Court Cases 279 istta •^'3 "•Sfs.s-' wroug concession on legal questiou niay not be biadiag upon his client. 16.In the matter of Ganpatbhai Mahyibhai Solanki Versus State of Gujarat aad others6, it has been held that aay wrong concession inade by tbe couxisel would not be bindiag upon fhe State. It has been observed fhat it is also trite that the admission aiade coatrary to law shall not be bindiug on fhe State. 17.In the instant case, as we have already observed in the foregotng paragraphs fhat fhe impugned order was passed keepiug in view fhe order of the Tribunal passed iii Mahendra Singh's case, on the basis of concession given by counsel representing the State that ratio of law propounded ia the aforesaid judgment with respect to Rule 37 of the Rules, 1973 fa squarety applicable to the present case, however, as already stated in the earlier part ofourjudginent fhat the Tribi.uial has. held that fhe respondents had waived the conditions as provided imder Rule 37 of the said Rules on fhe basis of uncontroverted uiaterial avaUable on record ia that case and no such circumstances exist iti fhe present case. 18.So far as reUance ia the matter ofBaItoishna Agarwal (supra) placed by the respondent is concemed, it is true that tbe unpugned order was passed by the respondents on the basis of concession aud the same cannot be faulted. However, takiag into consideration the grounds raised by the appeUaats in fhis appeal and also ffae fact that fhe concession xuade by learaed counsel for the State was contraiy to fhe pleadiags ia fhe reti.im filed by fhe State as also based on improper and illegal iuterpretation of fhe Tribunal's order, we hold that fhe appeUants Iiave inade out sufficient ground for our iaterference. '• 6 (2008) 12 Supreme CourtCases 353 j jF ' iitiiBi MW ^ssasBes //^' 'i.J'^igB^ ii '•s'aS"a» I ^""•^sl ^\ 19.In the result, we allow this appeal and set aside the order dated 29*11 Jaauaiy, 2008 passed by the learued Single Judge iu Writ Petitiou No.4543/2004 aad further dismiss fhe writ petition preferred by fhe respondent. Sd'- R.N. C'nandrakar Judge a Bi^ve