evolawyer/inlegalbert-sc-ner-silver huggingface dataset:
THE ANDHRA PETROCHEMICALS v.

COLLECTOR OF CUSTOMS, MADRAS

FEBRUARY 6, 1997

[B.P. JEEVAN REDDY AND K VENKATASWAMI, JJ.)

Customs Valuation Determination of Price of Imported (goods) Rules,

1988.

Rule 9 r/w ~Import of equipment-Three separate agree- C ments-Whether a single transaction and are package deal-Held, Tribunal was right in holding the agreement relating to purchase of equipment cannot be disassociated from other agreements-Hence the authorities were right in loading the design and engineering charges on to the value of the imported equipment. '

Clv1L APPELLATE JURISDIQTION : Civil Appeal No. 7351 of 19!l3.

From the Judgment and Order dated 30.7.93 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Custom Appeal No.

C/1570 of 1992-A.

M. Chandrasekharan and C.N. Sree Kumar for the Appellants.

M. Gauri Shankar Murthy, Y.P. Mahajan and V.K. Verma for the Respondent.

Th~ following Order of the Court was delivered :

We have heard the counsel for both the parties at some length. We have been taken through the three agreements concern herein, the orders

of the Government of India and the Judgment of the Tribunal under appeal. We arc inclined to agree with the Tribunal that the three agree- G ments represent a single transaction between the appellant and Davy Mckee (London) Limited, U.K. and that they are in the nature of a package deal. It may be that all the equipment that was contemplated to be purchased abroad was not purchasi::d and that some of it was locally procured but what was imported was specially manufactured on the basis H 991

SUPREME COURT REPORTS

[1997] 1 S.C.R.

A of design and engineering specifications provided by Davy. We are of the opinion that the Tribunal was right in holding that the agreement relating

_, to purchase of equipment cannot be dissociated from the other agreements and that the authorities were right in loading the design and engineering charges at Pounds 11.50 Lakhs on to the value of the imported equipment B under Rule 9 read with Rule 4 of the Customs Valuation Determination of Price of Imported (goods) Rules, 1988. The facts set out by the Tribunal in Paras 32 to 34 do support the conclusion arrived at by it. We 1see no reason to differ from the view taken by thi:: Tribunal. The appeal accordingly fails and is dismissed. No costs.

C G.N.

Appeal dismissed . -

...
STATE OF U.P. AND ORS.

AJAY KUMAR

FEBRUARY 17, 1997

[K. RAMASWAMY AND G.T. NANAVATI, JJ.]

Seniice Law :

Daily Wager---Regularisation-Held, there should exist a post and either C administrative instructions or statut01y rnles must be in operation to appoint a person to the post-Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists-Division Bench of High Court erred in directing the employer to regularise the service of the daily wager to the post as and when the vacancy arises and to continue him until then.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1568 of 1997.

From the judgment and Order dated 9.11.95 of the Allahabad High Court in S.A. No. 302 of 1995.

Arvind Kr. Shukla and M.C. Dhingra for the Appellants.

Ms. N. Annapoorani for the Respondent.

The following Order of the Court was delivered :

Leave granted. We have heard learned counsel on both sides.

This appeal by special leave arises from the Division Bench judgment of the Allahabad High Court, made on November 9, 1995 in Special Appeal No. 302/95.

The admitted position is that the respondent came to be appointed on daily wage basis on February 14, 1985 as Class IV employee, Nursing Orderiy, in the Medical College-by-the Medical Superintendent. When the respondent filed a writ petition in the High Court for his regularisation, the learned single Judge pointed out that the respondent has not brought H to the notice of the Court, any statutory rule under which the respondent

STATEv. AJAYKR. 103

could be regularised, ondne basis of the service rendered by him as a daily A wage earned. Even the method of recruitment adopted by the Superintendent was not proper inasmuch as he id not call applications. The Division Bench reversed the decision of the learned single Judge and had given directions. It is now settled legal positin that there should exist a post and either administrative instructions or statutory rules must be in operation to B appoint a person to the post. Daily wage appointment will obviously be in relation to contingent establishment in which there cannot exist any post and it continues so long as the work exists. Under these circumstances, the Division bench was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then. The direction in the backdrop of the above C facts is, obviously, illegal.

The appeal is accordingly allowed. The order of the learned single Judge stands upheld and that of the Division Bench stands set aside. No costs.

R.P.

Appeal allowed.
THE FLAG OFFICER COMMANDING-IN-CHIEF AND ANR.

A v.

MRS. M.A. RAJAN! AND ANR.

MARCH 17, 1997.

[K. RAMASWAMY AND G.T. NANAVATI, JJ.]

Service Law:

Ministry of Defence Recmitme1:t of Stenographers (Grade Ill) Rules:

Rule 1 (d)-Recroitment-:l'ost reserved for Scheduled Castes-Sources of appointment-By promotion/Transfer/Direct recroitment-After exhausting the sources of appointme11t by promotion and transfer, 11ames were called from Employment Exchange and the. respondent, a Scheduled Caste candidate, was selected-Meanwhile vacancy was dereserved, and respondent was refused appointme11f-Tribw1al directed appointment of respo11dent--Held, when the candidate was available, resort to dereservatio11 is clearly illegaf-Tribu11al was right i11 gi.ving the direction to appoi11t the respondent who was duly selected by the Committee. ·.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2235 of 1997.

From the Jutlgment and Order dated 8.3.96 of the Central Administrative Tribunal, Ernakulam, Kerala in O.A.No. 1399 of 1995. •

V.C. Mahajan, Mrs. Sushma Manchanda and Mrs. Anil Katiyar for

the Appellants.

K.M.K. Nair for the Respondents.

The following Order of the Court was delivered :

Leave granted. We have heard learned counsel on both sides.

This appeal arises from the order of the C.A.T. Trivendrum Bench, made on 8.3.1996 in 0.A. No. 1399/95.

The only controversy is whether the respondent is entitled to appointment by direct recruitment to a reserved vacancy? Admittedly, Rule H . . 1155

SUPREME COURT REPORTS

[1997] 2 S.C.R.

A l(a) of the Ministry of Defence Recruitment of Stenographers, (Grade III) Rules postulates appointment by promotion; failing that, by transfer and failing both, by direct recruitment. In this case, the sources of appointment, viz., by promotion and transfer, were exhausted. Consequently, the appellants resorted to direct recruitment and the respondent was called through

the Employment Exchange for selection. Though she was selected, she was not given appointment on the specious ground that by proceedings under Ex. A3 the post was dereserved and that, therefore, she was not eligible for appointment. The TriJ:>unal has not agreed with the contention of the , appellants and directed them to appoint the respondent in accordance with Rules. Thus this appeal, by special leave.

It is seen that Rule l(a) postulates three sources for recruitmentfirst by promotion, second by transfer and on failing both of these methods, by direct recruitment. Admittedly, the post was reserved for Scheduled Castes. Accordingly, the respondent was called for seletion. Whn the candidate was available, resort to dereservation is clearly illegal' and, D therefore, the Tribunal was right in giving the direction to appoint the respondent who was duly selected by the Committee.

The appeal is accordingly dismissed. No costs.

R.P.

Appeal dismissed."
\ ..

MD. ALIMUDDIN A v.

W AIZUDDIN AND ANR.

FEBRUARY 19, 1997

(K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.) B

Specific Relief Act, 1963 :

S. 28( 1 )-Application to rescind the contract-Decree for specific per- ! onnance granted and became final-Application of plaintiffs for extension of C time to comply with the decree, ordered-Application of defendant to rescind the contract dismissed-Held, though the trial court while extending the time mentioned that it is at the risk of the plaintiff, but having exercised the discretion and allowed the plaintiff to deposit the balance consideration, it amounts to that the court has extended the time-Plaintiffs have complied with the directions contained in the decree--Courts below rightly exercised the D discretion in extending the time.

CIVIL APPELLATE JURISDICTION: Special Leave Petition {C) No. 3177 of 1997.

From the Judgment and Order dated 21.11.96 of the Patna High E Court in C.R. No. 417 of 1992.

S.K. Sinha for the Petitioner.

The following Order or the Court was delivered :

The petitioner is the judgment-debtor. A decree for specific performance was granted by the Trial Court way back in June 15, 1982 in Title Suit No. 46/1976 which was reversed by the Appellate Court but restored

by the High Court. Special Leave Petition was dismissed by this Court.

Consequently, the decree for specific performance has become final. It would appear that Trial Court directed the respondents to deposit the G balance consideration of Rs. 500 and draft sale deed on or before June 7,

1982. An application for extension with the challen came to be filed and the same was ordered by the Court on August 20, 1982. The petitioner filed an application under Sec. 28(1) of the Specific Relief Act to rescind the contract. The Trial Court dismissed the petition. On appeal it was con- H 199

SUPREME COURT REPORTS

[1997) 2 S.C.R.

A firmed. In the revision also, the High Court confirmed the same. Thus, this Special Leave Petition.

It is true that, as pointed out by Shri Sinha, the learned counsel for the petitioner that the Trial Court while extending the time mentioned that it is at the risk of the plaintiff but having exercised the discretion and B allowed the respondents to deposit the balance consideration of Rs. 500 it amounts to that the Court has extended the time. The respondents have complied with the original direction contained in the decree of July 7, 1982.

The Courts below, therefore, have rightly exercised the discretion in extending the time for compliance. We do not find any illegality in the C exercise of the power. The SLP is accordingly dismissed.

R.P.

Petition dismissed.

....
S.S. DAYANANDA v.

K.S. NAGESH RAO AND ORS.

FEBRUARY 19, 1997

[K. RAMASWAMY ANDS. SAGHIRAHMAD, JJ.]

Code of Civil Procedure, 1908 :

Or. XX!, Rules 64, 90-Sale in execution of a decree-Application for C setting aside the sale on ground of non-compliance of mandatory requirement-Held, since the High Court has found that procedural compliance of Or. XX!, R. 64 was not adhered to which is a mandatory requirement, and the sale consideration of the properties was in excess of the execution, High Court is justified in confinning the order of appellate court setting aside the sale.

Desi! Bandhu Gupta v. NL Anand & Rajinder Singh, [1991) 1 SCC 131, relied on.

CIVIL APPELLATE JURISDICTION: Special Leave Petition No. 4557 of 1997.

From the Judgment and Order dated 16.7.96 of the Kernataka High Court in C.R.P. No. 5643 of 1990.

Shanta Kr. V. Mahale for P. Mahale for the Petitioner.

The following Order of the Court was delivered :

Delay condoned.

This special leave petition arises from the judgment and order dated July 16, 1996 passed by the learned Single Judge of the Karnataka High G Court in C.R.P. No. 5643 of 1990.

The respondent suffered a decree in a sum of Rs. 3,825.85 for recovery of which his property was brought to sale on December 18, 1978 and the petitioner purchased the same for a sum of Rs. 67, 000. An application was filed by the respondent under Order XXI, Rule 90 of the H Code of Civil Procedure (CPC) impugning the legality of the sale con-

S.S. DAY ANANDAv. K.S.N. RAO 209

ducted. The executing Court dismissed the application by order dated A August 16, 1990. On appeal, the appellate Court set aside the order of the executing Court and allowed the petition declaring that the sale was illegal.

On revision, the High Court by the impugued order has confirmed the same. The finding recorded by the appellate Court and the High Court is that non-compliance of the procedure required under Order XXI, Rule B 64, CPC had vitiated the sale.

It is contended for the petitioner that the executing Court had found that the adequacy of consideration is not a ground for setting aside the sale but the appellate Court and the High Court have not gone into that aspect of the matter. The appellant having purchased the property valued in the C proclamation at Rs. 85,000, the sale for Rs. 67,000 was adequate and, therefore, the sale could not be set aside. We find no force in the contention. It is seen that the High Court has noted that the procedural compliance of Order XXI, Rule 64, CPC was not adhered to which is a mandatory requirement as held by this Court in Desh Bandhu Gupta v. N.L.

Anand & Rajinder Singh, [1991) 1 SCC 131. Equally the sale consideration D of the property was in excess of the execution. Under these circumstances, the High Court is justified in confirming the order of the appellate Court setting aside the sale.

The Special Leave Petition is accordingly dismissed.

R.P.

Petition dismissed.
JAWAHARLAL NEHRU KRISHI VISHWA

VIDYALAYA, JABALPUR, M.P.

BAL KISHAN SONI AND ORS.

APRIL 7, 1997

(K. RAMASWAMY AND D.P. WADHWA, JJ.)

Service Law-Work charge project-Employees-Regularisation claim-Scheme sponsored by Indian Council of Ag1icultural Research-Post C co-tenninus with scheme-Wlit for reguladsation filed by e111ployees allowed by High Cowt-Appeal by appellant-lnstitute-fleld the posts are co-terminus with the sche111e-On abolition of the scheme, posts also 11ecessa1ily stand abolished-The order of the High Coitlt to that extent is modified-On whatever posts the respondents are working and discharging their duty, the scale of pay of the said post is directed to be paid.

D CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2888 of 1997.

From the Judgment and Order dated 12.7.96 of the Madhya Pradesh E High Court in M.C.C. No. 461 of 1995.

G.C. Gupta, S.K. Bandhyopadhyay and C.L. Sahu for the Appellant.

T.G. Narayanan Nair for the Respondents.

F The following Order of the Court was delivered :

Leave granted.

This appeal by special leave arises from the order of the High Court of Madhya Pradesh passed in Misc. Petition No. 2935 of 1986 on 9th February , 1995 and the order passed in Review Petition (MCC No. 461 of G 1995) dated 12th July, 1996. On a Scheme sponsored by the Indian Council of Agricultural Research, the appellant-institute had taken up the Project.

As many as 625 posts were created in different scales. The respondents while working as Binders, Machine Operators & Class IV employees respectively in the regular pay-scales of Rs. 750-945, filed a writ petition in H the High Court for regularisation of their service, By the impugned order, 688

JAWAHAR LAL NEHRU KRISHI VJSHWA VIDYALA YA v. B.K. SONI 689

the High Court allowed the writ petition. Feeling aggrieved, the appellant- A institute has filed this appeal by special leave.

It is not in dispute that the Scheme is sponsored by Indian Council of Agricultural Research and, therefore, permanent posts cannot be created. The posts are co-terminus with the scheme. On abolition of the Scheme, posts also necessarily stand abolished. We are informed that the B Scheme may continue to be in force; but it depends upon the Scheme being sponsored and the posts made available by the Indian Council of Agricultural Research. Therefore, the direction to regularise the services is violative of their right to posts. The order of the High Court to that extent is modified. On whatever posts the respondents are working and discharging C their duty, the scale of pay of the said post is directed to be paid.

The appeal is accordingly disposed of. No costs.

T.N.A.

Appeal disposed of.
MAHARASHTRA PUBLIC SERVICE •

COMMISSION v.

DR. BHANUMATI PURUSHOTTAM

TATHOD AND ORS.

APRIL 21, 1997

(K. RAMASWAMY AND D.P. WADHWA, JJ.)

Se1Vice Law :

Appointment-Post of Deputy Medical Superintendent-Prescribed qualification post graduation in Medicine and 15 years experience-Candidate with 14 years experience not called for intelView-Tribunal holding that the condition of 15 years expe1ience was vague and he was wrongly excluded from zone of consideration-<Jranted exemplary costs and compensation-011 ap- D peal held, it was not a case of wrongful rejection but of rejection in accordance with the rules-Tribunal could not award any damages as it is beyond its jurisdiction to grant relief by way of damages-Practice & Procedure.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3142 of E 1997.

From the Judgment and Order dated 24.10.96 of the Central Administrative Tribunal, Bombay in O.A. No. 954 of 1995.

D.M. Nargolkar for the Appellant.

The following Order of the Court was delivered :

Though notice was served on the contesting respondent, he is not appearing either in perscn or through counsel.

Leave granted. We have learned counsel for the appellant.

The admitted position is that for appointment to the post of Deputy Medical Superintendent, qualification prescribed is of post graduation in Medicine and 15 years' experience. Admittedly, the respondent did not possess 15 years' experience. He had only 14 years' experience. The H Tribunal in the impugned order dated October 24, 1996 in O.A. No. 954/97 878

MAHARASHTRA PUBLIC SERVICE COMMISSION v. B.P. TATHOD 879

has held that the condition of 15 years experience is vague and, therefore, the respondent was wrongly excluded from the zone of consideration without calling for the interview. Since the selection had already taken place, the Tribunal has granted exemplary costs and compensation to the respondent. We find that the procedure adopted by the Tribunal is wholly illegal and unwarranted. The only question the Tribunal was required to consider was whether the respondent fulfilled the qualifications prescribed for the post. In view of the admitted position that 15 years' experience is one of the qualifications for selection and since the respondent did not possess the same, the respondent was rightly not called for interview. The Tribunal, therefore, not justified in holding that the respondent was wrongfully excluded from being called for interview for selection. It is not a case of wrongful rejection, but of rejection in accordance with the rules. Even otherwise also, the Tribunal could not award any damages as it is beyond its jurisdiction to grant relief by way of damages.

The appeal is accordingly allowed and the order of the Tribunal

stands set aside. No costs.

G.N.

Appeal allowed.
GOVERNMENT OF TAMIL NADU AND ANR. v.

K. RAJARAM APPASAMY

APRIL 21, 1997

[K. RAMASWAMY AND D.P. WADHWA, JJ.)

Sen'ice Law :

Backwages-U11autho1ised absence from duty for five years-Removed from se1vic~Tlibunal setting aside the order of removal and directing pay- C ment of 50% backwages--011 appeal held, there was nothing on the part of the State Govemment which prevented the employee from attending to his duties-Hence Tlibwia/ was wholly wrong in its direction to pay 50% of backwages from date of absence till reinstatement.

D CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3138- 3140 of 1997.

From the Judgment and Order dated 14.5.96 of the Tamil Nadu Administrative Tribunal, Madras in O.A. No. 2354, 2477 and 6373 of 1993.

E V. Krishnamurthy for the Appellants.

Dr. V. Gourishankar and S. Rajappa fur the Respondent.

The following Order of the Court was delivered :

F Leave granted.

W c have heard learned counsel fur the parties.

These appeals by special leave arise from the Order dated May 14, 1996 passed by the Tamil Nadu Administrative Tribunal, Madras in 0.A.

Nos. 2354, 24T7 and 6373 of 1993. The admitted facts are that the respon- G dent was working as a doctor. He proceeded on leave and made a representation on June 27, 1987 with regard to his posting. He did not report for duty for five years from May 1, 1982. A departmental enquiry came to be conducted against the respondent, under Rule 17(b) of the Tamil Nadu Services (Discipline and Appeal) Rules. The competent authority H removed him from service on the ground that the respondent was found 886

GOVERNMENT OFT.N. v. K. RAJAH.AM APPASAMY 887

to be un authorisedly absent from duty for five years. The Tribunal in is its A impugned order set aside the order of his removal from service and directed to pay 50% of the back wages till the dale of filing of the original application and full back wages from the date of liling of the original applications till lhe date of reinstatement. This Court issued notice confined to the question of respondent's entitlement to back wages. It would B be obvious that the respondent did not choose to join the duty for five years. There is nothing on the part of the State Government which prevented the respondent from attending to his duties. Under these circumstances, the Tribunal is wholly wrong in its direction to the appellants to pay 50% of the back wages from the date of his absence till the date of filling of the original application and back wages thereafter till his reinstatement. Accordingly, the appeals are allowed and the direction to pay back wages stands set aside. No costs.

G.N.

Appeals allowed.