evolawyer/inlegalbert-sc-ner-silver huggingface dataset:
STATE OF U.P. AND ORS.

SMT. KAMLA DEVI AND ANR.

MAY 9, 1996

B [K. RAMASWAMY, FAIZAN UDDIN AND G.B. PATTANAIK, JJ.j

Service Law :

U.P. Temporary Government Services Rules, 1975.

R. 14(a}-Employee appointed on ad hoc basis-Frequent absence from du~Services tenninated in tenns of appointment lettei--Claim for reinstatement and back wages-Tribunal setting aside order of tennination holding the same as violative of Article 311 (2) of the Constitution-Held, when Government exercised statuto1y power, need to conduct inquiry as D contemplated under Article 311(2) by necessary implication got obviated.

Constitution of India, 1950.

Article 311(2}-Temiination of services of temporary employee without inquiry>-Govemment of U.P. tenninating services of employee appointed on E ad hoc basis, exercising power under Rule 14(a) of U.P. Temporary Govemment Services Rules, 197~Held, in view of exercise of statutory power, order of tennination is not violative of Article 311(2).

CIVIL APPELLATE JURISDICTION Civil Appeal No. 8996/1996.

From the Judgment and order of the 5.4.1994 of the Allahabad High Court in W.P. 1589(SS) of 1994.

lrshad Ahmad from the Appellants.

G Pravir Choudhary for the Respondents.

The following Order of the Court was delivered :

Leave granted.

H We have heard learned counsel for the parties.

STATE v. KAMLADEVI 645

Though the respondent was appointed on February 14, 1972 on ad A hoc basis, she was posted at different places during which period she remained either on leave or alJsconded from duty, except joining the places nearer to her native place Lakhimpur Kheri. Consequently, authorities had taken action on September 23, 1980 to terminate her service in terms of letter of appointment. The respondent had approached the Tribunal for reinstatement with back wages. The Tribunal has set aside the order of ll termination holding that the termination is violative of Article 311(2) of the Constitution since no enquiry was conducted against the respondent. The same came to be upheld by the High Court in the impugned order in Writ Petition No. 1589(SS)/94 passed on April 5, 1994. c The question, therefore, is : whether it is necessary for the Government to conduct an enquiry as contemplated under Article 311(2) read with the statutory rules? In the State of U.P., there are statutory rules, viz., U.P. Temporary Government Services Rules, J.975. Rule 14(a) of the said Rules provides for termination of the service of temporary Government servant either with one month's notice or pay in lieu thereof.

Under the.sc circumstances, when the Government exercised the statutory power, the need to conduct enquiry as contemplated under Article 311(2) by necessary implication got obviated. The High Court, therefore, was wrong in holding that the enquiry under Article 311(2) E needs to be conducted to terminate the services of even the temporary Government servant.

The appeal is accordingly allowed. However, any salary paid to the respondent during the continuance in services pursuant to the interim direction would not be recovered from her. There 'viii be no order as to F costs.

R.P.

Appeal allowed.
NATWARBHAI MAGAJNBHAI PATEL

COLLECTOR AND ORS.

MAY 10, 1996

[K. RAMASWAMY, FAJZAN UDDIN AND G.B. PATTANAIK, JJ.]

Urban Land (Ceiling and Regulation) Act, 1976.

S. 10(5)-Excess vacant /and-Possession taken by Govem- C ment-Compensation-Held, it is not a condition under the Act that payment of compensation be made before utilisation of the land.

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) No. 13088 of 1996 C.C. No. 2297 of 1996.

From the Judgment and Order dated 15.5.95 of the Gujarat High Court in S.C.A. No. 4093 of 1995.

MJ. Trivedi and S.C. Patel for the Petitioner.

E The following Order of the Court was delivered :

Delay condoned.

Counsel for the petitioner admits that a notification under Section 10(5) of the Urban Ceiling Act was published pursuant to which the excess F vacant land was surrendered and taken possession of by the Government.

Consequently, the land stands vested in the State free from all the encumbrances. In what manner the lands require to be utilised has been regulated under the provisions of the Act. It is not a condition, under the Act, that payment of compensation be made before utilisation of the land G of which the petitioner was erstwhile owner. Under these circumstances, we do not find any illegality in the order passed by the High Court in Special Civil Appeal No. 4093/93 on May, 15, 1995.

The Special Leave Petition is accordingly dismissed.

R.P.

Petition dismissed.
C.S. BALAN AND ORS.

A v.

CHIEF GENERAL MANAGER, TELECOM AND ORS.

APRIL 26, 1996

[G.N. RAY AND B.L. HANSARIA, JJ.] B

Service Law :

Promotion-To the post of Junior Telecommunication Officer from out of quota-Vacancies availabl&-Not promoted-Central Administrative C Tribunal 11ot goi11g into that questio11-011ly orderi11g that seniority be given-Matter remitted to Tribunal for considering the claim of appella11ts to get promotion from earlier date.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8907/96.

D From the Judgment and order dated 28.11.94/2.12.94 of Central Administrative Tribunal, Ernakulam in O.A. No. 1327/93.

G. Prakash for the Appellants.

V.R. Reddy, Additional Solicitor General, Hemanshu Sharma and E C.V.S. Rao for the Respondents.

The following Order of the Court was delivered :

Leave granted.

Heard learned counsel for the parties. The appellant's grievance is F

that before the General Administrative Tribunal, Ernakulam Bench, the appellants sought for a declaration that they were entitled to be promoted w.e.f. December, 1990 to the post of Junior Telecom Officer because vacancies in the quota, in which they were entitled to be promoted, were available. It, however, appears from the impugned order that the question G /-. of the appellants' entitlement to get promotion has not been gone into, but the application has been disposed of by noting the concession of the respondent that the appellants would be given due seniority. Since the claim for promotion is also required to be considered, we allow this appeal and remit the matter to the Tribunal for consideration of the claim of the H 65

SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A appellants to get promotion from earlier date as sought to be agitated in the application presented before the Tribunal. In the facts of the case. it is directed that such consideration be made by the Tribunal after hearing the parties within four months from the date of communication of this order. The appeal is accordingly disposed of with no order as to cost.

G.N.

Appeal disposed of.
K.V. KRISHNAMANI v.

LAUT ACADEMY

MAY 10, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Service Law:

Probatione1-Tenninatio11 of sen•ices-Drive1-Appoi11tme11t 011 ad hoc basis-Later put on probation-During probation services temiinated as not C found satisfactory---Tennination order challenged for failure of Department to conduct inquiiy-Held, the very object of probation is to test the suitability and if the appointing authority finds that the candidate is not suitable it certainly has power to tenninate services of the employee-Reasons mentioned constitute motive and not foundation for tennination of ser- D vices-Order of the High Court dismissing the writ petition does not suffer from any error of law.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9058 of 1996.

E From the Judgment and Order dated 30.4.91 of the Delhi High Court

in C.W.P. No. 3695 of 1990.

S. Menon for Pravir Choudhary for the Appellant.

K.V. Mohan for the Respondent.

The following Order of the Court was delivered :

Leave granted.

We have heavd learned counsel on both sides.

This appeal arises out of the order of the Delhi High Court in Writ petition No. 3695 of 1990 made on April 30, 1991. The appellant was appointed initially on ad hoc basis on March 3, 1987 and thereafter with a view to regularise his services, he was put on probation. During probation, his services having been found to be not satisfactory, were terminated by H proceedings dated December 1, 1989. The appellant came to challenge the 844

K.V.KRISHNAMAN!v. LALITKALAACADEMY 845

same by filing writ petition in November 1990 which was dismissed by the A High Court. Thus this appeal by special leave.

It is contended by the appellant that since the avermments made .in the counter would constitute foundation for dismissal for misconduct, an enquiry in. this behalf was required to be made. On the other hand, it is contended by the respondent that during the probation the appellant did B not acquire any right to the post. If on being foud suitable he was regularised, only then he would have acquired the right to continue in the post. During probation, it was found that his services were not satisfactory and reasons were given in support thereof. Thus they do not constitute foundation but motive to terminate the services. We find force in the C contention of the respondent. They have explained that the driving of the staff car was not satisfactory and that, therefore, they have terminated the services.of-the appellant during probation. The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has power to terminate the services of the employee. Under these circumstances, it cannot but be held that the D reasons mentione.d constitute motive and not foundation for termination of service. Therefore, we. hold that the. High Court has not committed any error of law. ·

The appeal is accordingly dismissed. No costs.

R.P.

Appeal dismissed.
MIS ATIABIRA REGULATED MARKET COMMITIEE v.

MIS GANESH RICE MILLS <§!

MAY 10, 1996

[K. RAMASWAMY AND G.B. PATIANAIK, JJ.]

01issa Agricultural Produce Market Act, 1956:

S.4(1 )-Notified market area-Declaration of-Purchase of paddy from c notified area-Liability to pay market fee-Held, respondents doing purchase of paddy from the villages falling within the notified area shall be required to pay market fee under the Act.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9078 of 1996.

D From the Judgment and Order dated 21.3.91 .of the Orissa High Court in O.J.C. No. 2337 of 1985.

WITH

E Special Leave Petition (C) No. 2092 of 1992.

Sunil K. Jain for the Appellant.

The following Order of the Court was delivered :

F Leave granted.

We have heard learned counsel for the appellant. Though notice was sent to the respondent on April 14, 1992 till date neither acknowledgement nor unserved envelope has been received. Under these circumstances, the notice must be deemed to have been served on the respondent.

G The only question is : whether Saharatikira and Bheden are within the notified market area of the appellant? It is not in dispute that pursuant if'. to the notification issued under sub-section (1) of Section 4 of Orissa Agricultural Produce Market Act, 1956, the Orissa Act 3 of 1963 (for short the 'Act') the State Government declared the notified market area with H annexures thereto. Under annexure 'A' to the notification it was stated that 846

A TIABIRA REGULATED MKT. COMM!TIEE v. GANESH RICE MILLS 847

the area falling it a radius of 8 kms. from the plots specified in Schedule A B arc within the notified area. In schedule B within was mentioned that ~- the area comprising in Attabira and Bheden Police Station in the District of Sambalpur are within the notified area. It is now seen. that the villages Saharatikira and Bheden are situated within the 8 kms. radius from the aforesaid police stations. Under these circumstances, the villages do fall B within the notified area. The respondent admittedly are doing purchase of paddy from the notified area. Consequently, they shall be required to pay market fee under the Act.

The appeal is accordingly allowed and the order of the High Court dated March 21, 1991 in O.JC No. 2337/85 stands set aside, No costs.

SLP (C) No. 2092 of 1992.

The special leave petition is dismissed as withdrawn.

R.P.

Petition dismissed.
SUSHILA NARAHARI AND ORS.

NANDA KUMAR AND ANR.

JULY 8, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] ..

Code of Civil Procedure, 1908: Order 9 Rules 13 and 14.

Ex-pane decrec--Setting aside of-Respondent's suit for specific per- C fo11nancl~Ex-pmte decrec--Application for setting aside of by appellant- Delay in filing-Delay due to advocate's dereliction i11 duty in withdrawing Vakalat11ama without notice to party-Held in such circumsta11ces delay in filing the application was justified-Delay co11do11ed and ex pmte decree set aside.

D CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9480 of 1996.

From the Judgment and Order dated 14.2.94 of the Madras High Court in C.R.P. No. 306 of 1994.

E M.A. Krishna Moorthy for the Appellants.

Dr. A. Francis Julian and A. Mariarputham for the Respondents.

The following Order of the Court was delivered :

F Leave granted.

We have heard learned counsel on both sides.

This appeal by special leave arises against the order of the learned single Judge of the High Court made on February 14, 1994 in CRP No.

G 306/94. The suit for specific performance of agreement dated January 29, 1986 for the sale of 4840 sq. ft. of land in Madras city, laid by the respondent, was decreed ex-parte. The appellants had filed an application to set aside the ex-parte decree which was dismissed by the trial Court and confirmed by the High Court in revision. Thus, this appeal by special leave.

H A reading of the facts leaves us with no doubt that the advocate has

SU SHILA NARA.HAR! v. NANDA KR. 209

derelicted his duty to inform the client by registered post if there was any A non-cooperation on behalf of the appellants. Consequently, when the suit had come up for trial, he has withdrawn his vakalatnama without notice to the appellants. The trial Court set the appellants ex pmte and decreed the suit for specific performance. The application for condonation of delay of 40 days was filed. The Court refused to condone the delay. In view of the above, we find that she is_ well justified in filing the application with the delay. The delay is accordingly condoned. The ex-pwte decree is set aside.

The trial Court is di_rected to give opportunity to the appellants to crossexamine the witness examined by the respondent of the suit and also adduce evidence on her behalf. The trial Court is further directed to dispose of the matter as expeditiously as possible, preferably within one C year from the date of receipt of the copy of the order The appeal is allowed. No costs.

T.N.A.

Appeal allowed.
DR. NANDA BALLABH PATHAK

STATE OF U.P. AND ORS.

JULY 12, 1996

[K. RAMASWAMY AND G.B. PATTANA!K, JJ.]

Se1vice /aw-Promotion-Appellant WO/king as Hindi pandit in High SchooHJpgradation of School to Inter College-Claim for post of Hindi .Pandit in College-Wiit-Rejection of claim by High Court-Appeat- C Prescribed qualification for post MA. in Hindi and BA. in Sa11sk1it apa1t from B.Ed.-Held Rejection of appellant's claim was 1ight since he was not possessing BA. Degree in Sansk1it-Held no inteiference was called for with decision of High Cowt.

CIVIL APPELLATE .JURISDICTION: Civil Appeal No. 9481 of

D 1996.

From the Judgment antf Order dated 24.5.95 of the Allahabad High Court in S.A. No. 401 of 1992.

Pramod Swarup for the Appellant.

R.C. Verma and R.B. Misra for the State.

Mrs. S. Janani for the Respondents.

The following Order of the Court was delivered :

Leave granted.

This appeal by special leave arises from the judgment and order dated May 24, 1995 of the Allahabad High Court in Special Appeal No.

G 401/92. The appellant was working as a Hindi Pandit in the L.T. Grade.

The Bazpur Cooperative Sugar Factory Inter College, Bazpur District Nainital was upgraded from High School. Four posts, including the post of a Hindu pandit, were sanctioned for recruitment. The appellant is an M.A., Ph.D. in Hindi. He staked his claim for promotion to that post. It was not acceded to. Consequently, he filed the writ petition in the High Court. The H learned single Judge as well as the Division Bench of the High Court have 546

DR.NANDABALLABHPAIBAK v. STATE 547

negatived his claim. Thus this appeal by special leave.

The only question involved in this case is : whether the appellant is eligible for appointment as a Hindu Pandit in the intermediate college. Shri Pramod Swamp, learned counsel for the appellant contended that since one Smt. Lila Singh was already working in the school as a Sanskrit teacher, insisting upon his having B.A. degree in Sanskrit is contrary to the statutory rules and that, therefore, the High Court was not right in rejecting his abovesaid claim. We find no force in the contention. It is seen that smt.

Lila Singh is working as Sanskrit teacher in the High School but not in the college. As a consequence, when the vacancy had arisen for Hindi Pandit in the college, admittedly, the qualification prescribed is M.A. in Hindi arid B.A. in Sanskrit, apart from B.Ed., since both Hindi and Sanskrit are to be taught by the same teacher in the college. Admittedly, the appellant did not possess B.A degree in Sanskrit. Under those circumstances, rejection of his claim cannot be said to be vitiated by any error of law. In addition,

the High Court has also pointed out that the Management had slated in their-affidavit filed in the High Court that the said post was reserved for D the Scheduled Caste and was notified by the U.P. Secondary Education Service Commission. His claim was rejected on that ground also. Under these circumstances, 've do not think that it is a case warranting interference.

The appeal is accordingly dismissed. No costs.

T.N.A.

Appeal dismissed.
KASHMIR CHAND v.

FINANCIAL COMMISSIONER, HARYANA AND ORS.

JULY 15, 1996

[K. RAMASWAMY AND G.B. PATIANAIK, JJ.]

Auction sale-Payment-Default-Cancellation of allotment Joi-Appellant purchase plot in auction--Only pwt of sale price paid fm~Default for more than 21 years in respect of balance amount-Cancellation of allotment-Wlit-Dismissal by High Court-Appeal-Statement by purchaser's counsel that two instabnents with interest paid and one remains due-Acceptance of statement of counsel-Purchaser given liberty to pay the balance amount within 4 months-In case of default High Cowt order to be restored.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9753 of 1996. ])

From the Judgment and Order dated 19.8.93 of the Punjab & Haryana High Court in L.P.A. No. 355 of 1993.

K.B. Rohtagi and Ms. Aprana Rohtagi for the Appellant.

R. Barra for the Respondents.

 The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides.

Admittedly, the plot was sold in an open auction held in July, 1971 for a sum of Rs. 46,000. The appellant has paid only Rs. 11,500. He was

due of the balance sum of Rs. 34,500. In terms of the auction, he had not complied with the payment for well over '21 years. Consequently, he was G demanded payment of a sum of Rs. 3,78,000 which he defaulted to pay.

When allotment was sought to be cancelled he calling that action in question, filed a writ petition to the High Court. Pending writ petition, the High Court passed an order in a civil miscellaneous case. Therein the appellant had asserted that he had deposited the sum of Rs. 34,500, on H 591

SUPREME COURT REPORTS [1996) SUPP. 3 S.C.R.

A September 21, 1992. The Court found that in case the said amount of Rs.

34,500 was deposited, as contended by the appellant, the balance amount of Rs. 3,43,500 was directed to be deposited but he had not done. Consequently, the \Vrit petition \Vas dismissed and an appeal in the impugned order in MPA No. 355/93 dated 19th August, 1993, the order of the learned B single Judge was confirn1ed.

Though time was taken for filing the counter, the same was not filed by the respondents. Tl is stated by Shri K.B. Rohtagi, learned counsel for the appellant, that his client had already deposited two instalments of the amount with interest @ 12% and one instalment is due. We P1i111a fade C accept the statement of the counsel to be correct. In case those payments have already been made, the appellant is given liberty to pay the balance amount within a period of 4 months from today. In case he has not already deposited or if he commits default in payment of the amount as directed, this order would stand vacated and the order of the High Court would stand restored.

D The appeal is accordingly disposed of. No costs.

T.N.A.

Appeal disposed of.
UNION OF INDIA AND ORS.

A v.

VINOD KUMAR AND ORS.

JULY 15, 1996

[K. RAMASWAMY AND G.B. PATTANA!K, JJ.] B

Employees Provident Fund and Miscellaneous Provisions Act, 1952 : Section 5-D (7)(a}-Proviso.

Service Law-Recntitment-Promotion-Rules and orders regard- C in[j""Departures from-Pennission for-Prior pennission of Central Gove1nment-He/d necessary Fx post facto approval given for promotion made in deviation of mies held not valid in law-Direction given by T1ibunal for issue of Notification for fresh recnlit1nent in accordance with mies held valid.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9817 of D 1996.

From the Judgment and Order dated 4.10.95 of the Central Administrative Tribunal, Chandigarh in 0.A. No. 1002/PB/94.

R.V. Reddy, C.V.S. Rao and T.C. Sharma for the Appellants.

Ms. Meera Agrawal and R.C. Mishra for the Respondents.

The following Order of the Court was delivered :

Delay condoned.

Leave granted.

We have heard the learned counsel.

The only short question is whether the deviation from rule of granting G promotion of 50% of the quota gi, ing 2 years additional benefit to the Upper Division Clerks is valid in law? Sub-section (7)(a) of Section 5-D of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 provides method of recruitment as under :

'7(a) The method of recruitment, salary and allowances, discipline H 593

SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.

and other conditions of service of the Additional Central Provident Fund Commissioner, Deputy Provident Fund Commissioner, Regional Provident Fund Commissioner, Assistant Provident Fund Commissioner and other officers and employees of the Central Board shall be such as may be specified by the Central Board in accordance with the Rules and orders applicable to the officers and employees of the Central Government drmving corresponding scales of play.

Provided that where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government."

Under the proviso, where the Central Board is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters enumerated above it is mandatory that it should obtain D prior approval of the Central Government. Admittedly, prior approval was not obtained. On the other hand, ex post facto approval was obtained but in the teeth of the language of the proviso ex post facto approval is not an approval in the eye of law. Under these circumstances, the Tribunal had rightly held that the approval was not valid in law and the matter was kept E at large and directed the appellant to issue notification afresh for recruitment in accordance with rules. We do not find any illegality in the order.

The appeal is accordingly dismissed. No costs.

T.N.A.

Appeal dismissed.