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MIS SARDAR CONSTRUCTION CO.

A v.

STATE OF GUJARAT

JANUARY 25, 1999

[MRS. SUJATA V. MANOHAR AND R.C. LAHOTI, JJ.] B

Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 : Sections 8 and 21.

Arbitration Proceedings-Pendency of-Award given before commence- C ment of 1992 Act-Award not attaining finality wizen 1992 Act came into force-In-applicability of provisions of Arbitration Act-Transfer of proceedings to Trib1111al under 1992 Act-Held valid.

CIVIL APPELLATE JURISDICTION Petitiort(s) for Special Leave to Appeal (Civil) No. 14668/98.

From the judgment and order dated 01.05.98 in CRA 2283/95 of the High Court of Gujarat at Ahtnedabad;

K. Janani for the Petitioner:

E KG.Shah, AP. Medh and Mrs. Suchitra A. Chitale for the Respondents.

The following order of the Court was delivered :

The award in the present case, though given prior to 1.1.1994 which F is the date of commencement of the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992, had not attained finality at the time when the said Act came into force. Under Section 21 of the said Act, the provisions of the Arbitration Act shall, insofar as they are inconsistent with the provisions of the Act, cease to apply to any dispute arising from G a works contract and all arbitration proceedings in relation to such dispute before an arbitrator, umpire, Court or authority shall stand transferred to the Tribunal. In the present case, the arbitration proceedings in relation to the dispute were pending before the court and hence the High Court has rightly transferred these proceedings to the Tribunal. Under Section 8 of the said Act on reference to the Tribunal, the Tribunal has to make an H 233

SUPREME COURT REPORTS

[1999) 1 S.C.R.

A award which shall be deemed to be a decree within the meaning of Section 2 of Civil Procedure Code! 1908 and it shall be executed accordingly.

We, therefore, agree with the reasoning and ccnclusion of the High Court. The S.L.P. is dismissed.

T.N.A.

Petition dismissed.
SH. S.R. MURTHY

THE STATE OF KARNATAKA AND ORS.

AUGUST 19, 1999

[MRS. SUJATA V. MANOHAR, K. VENKATASWAMI AND

M. JAGANNADHA RAO, JJ.)

Service law:

Promotion-Reservation for scheduled caste candidates-Government C Polytechnic-Head of Ceramics Section-Appointment of the Scheduled caste candidate on the post on the basis of roster, and person, senior to him belonging to general category ignored-Held, since the post was a single post, application of roster for purpose of promotion was not permissible- Promotion made on the basis of roster set aside.

Post Graduate Institute of Medical Education and Research, Chandigarh

v. Faculty Association and Ors., JT (1998) 3 SC 223followed •

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4480 of 1990.

From the Judgment and Order dated 3.5.89 of the Karnataka E Administrative Tribunal, Bangalore, in Application No. 2297 of 1988.

Abhay N. Dass, for M.M. Kashyap for the Appellant.

KH Nobin Singh, for M. Veerappa for the Respondents.

The following Order of the Court was delivered:

This appeal deals with the promotion given by the first respondent to

the respondent No. 3 to the post of Head of Section, Ceramic in a Govermnent Polytechnic. There is no dispute that this is a single post. The first respondent, however, applied the roster relating to reservations to this post. Hence although G the appellant was the senior-most person eligible for promotion to that post, he was not appointed. Instead, respondent No.3, who was junior to him, but belonged to the Scheduled Caste category was appointed since on the roster point, the vacancy was reserved for a Scheduled Caste candidate.

The Karnataka Administrative Tribunal in the impugned judgment H 639

SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A proceeded on the basis that since this was a promotional post, all promotional. vacancies would have to be rotated in accordance with the roster. Hence the promotion of respondent No.3 to the post of Head of Section, Ceramics, was a valid appointment.

The Constitution Bench of this Court in the case. of Post Graduate B Institute of Medical Education and Research, Chandigarh v. Faculty Association and Ors., JT (1998) 3 SC 223 has held, after discussing all decisions on this question, that:

"In a single post cadre, reservation at any point of time on account of rotation or roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent percent reservation for the background classes is not permitted within the constitutional frame work".

In the light of this ratio since the post in question was a single post, the application of the roster for the purpose of promotion was not permissible.

The appeal is allowed and the impugned order of the Tribunal is set aside. The promotion of respondent No.3 on the basis of the roster is set E aside. However, the salary already received by the third respondent in the promotional post shall not be recovered.

RP.

Appeal allowed.
STATE OF ORISSA ETC.

S.K. AGARWALLA ETC.

APRIL 8, 1999

[K. VENKATASWAMI AND UMESH C. BANERJEE, JJ.]

Arbitrator-Award of Interest for pre-reference period-Matter referred to a larger bench-Tagging of appeals with.

Executive Engineer v. N.C. Bhudhiraj (dead) by L.Rs., [1999] 9 SCC C 514, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 710-711 of 1991 etc.

From the Judgment and Order dated 12.2.80 of the Orissa High Court D in M.A. Nos. 167 and 213of1979.

Jayant Das, Anil 8. Diwan and Ashok Kumar, Raj Kumar Mehta, R.P.

Wadhwani, K.K. Patel, T.K. Paradhan, Vinoo Bhagat, S. S. Misra, (RM. Patnaik) and R.S. Jena for the appearing parties.

The following Order of the Court was delivered :

It is brought to our notice that the question of Award of interest for prereference period by the Arbitrator has since been referred to a larger bench in Executive Engineer v. N.C. Budhiraj (dead) by L.Rs.-CA No. 3586 of

1984. Accordingly these appeals are tagged with Executive Engineer v. N.C. F Budhiraj (dead) by L.Rs-CA No. 3586of1984.

T.N.A. . Appeal still pending.

475 ..
INDIAi-.J PETROCHEMICALS CORPN. LTD. AND ANR.

SHRAMIK SENA AND ORS . •

APRIL 8, 1999

[S.P. BHARUCHA, R.C. LAHOTI AND N. SANTOSH HEGDE, JJ.] B

Supreme Court-Practice and Procedure direction-Filing of Additional affidavit-In the said affidavit additional facts placed on record- Permissibility of-Held, no such affidavit could have been filed and taken on c record without the express permission of the Court-Direction to registry to ensure that no affidavits are taken on record in pending appeals without permission of the Court.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1854 of 1998.

D From the Judgment and Order -fated 29 .8.1997 of the High Court of Bombay in W.P. No. 2206/97.

Mr. T.R. Andhyarujina with Mis. H.S. Parihar, K.S. Parihar, S. Birla and M.M. Verma for Appellants.

E Mis. G.K. Banerjee, R.S. Raymond, R.N. Karanjawala, Nandini Gore, Sandeep Mittal, Manik Karanjawala, Mr. K.K. Singhvi with Mis. S. Pakale, F.

Rashid and A.K. Gupta for Respondents.

The Order of the Court was delivered by F Civil Appeal No. 1854 of 1998 by the employer and Civil Appeal No. 1855 of 1998 by the employees arise from the same judgment of the High Court. Reliance was placed, during the course of their hearing, on an additional affidavit dated 19th February, 1999, filed recently (22nd February, 1999) on behalf of the employees. There is no reply by the employer to the said G affidavit.

There is no order of the Court that permits an additional affidavit to be - filed. It is stated by the learned advocate-on-record for the employees that, as a matter of practice, such affidavits are filed and the Registry accepts them.

The said affidavit is an affidavit in which facts are pleaded, additional H 539

SUPREME COURT REPORTS

[1999] 2 S.C.R.

A to the facts placed before the High Court. No such affidavit could have been filed and taken on record without the express permission of the Court to file the affidavit and place additional material on record. The Registry is hereby directed to ensure that no affidavits are ta.ken on record in pending appeals, especially if they set out facts, unless orders of the Court permit them to be B filed. This order shall be treated as a practice direction to be complied with hereafter in all matters.

 Adjourned for four weeks to enable the employer to file a reply to the said affidavit. To be treated as part-heard.

T.N.A.

Appeal pending.
ST A TE OF MAHARASHTRA AND ORS.

CHHA YA AND ORS.

APRIL 9, 1999

[B.N. KIRPAL AND V.N. KHARE, JJ.]

Administrative Tribunals Act, 1985 :

Section 5(4)(a)-Scope of-The Chairman may be a Judicial Member . C or an Administrative Member-Under section 5(4)(a) the Chairman can function at more than one Benches-Purpose of this provision is to enable the Chairman to function at different places when he goes on tour-This provision does not enable the Judicial Member to act as an Administrative Member or vice versa-If the Chairman is a person who was an Administrative Member, then under section 5(4)(a) if he goes to another Bench he can sif D on that Bench as an Administrative Member, but certainly not as a Judic(al

Member-The same is true with regard to the Chairman who is a Judicial Member.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. CCl675/

E 1999.

From the Judgment and Order dated 13/11/1998 in W.P. 1394/98 of the High Court of Bombay, Aurangabad Bench, Aurangabad.

G.B. Sathe for D.M. Nargolkar for the Petitioners.

The following Order of the Court was deliyered :

Delay condoned.

Learned counsel for the petitioners refers to Section 5, sub-section (4), sub-clause {a) of the Administrative Tribunals Act and submits that the G Chairman, who is otherwise a Judicial Member, can act as an Administrative Member also. The said provision reads as follows :-

"(4) Notwithstanding anything contained in sub-section (l), the Chainnan-

(a) may, in addition to discharging the functions of the Judicial 574

SifATE v.CHHAYA 575

Member or the Administrative Member of the Bench to which he is A appointed, discharge the functions of the Judicial Member or, as the case may be, the Administrative Member, of any other Bench."

In our opinion, the aforesaid submission of the learned counsel is not correct. The Chairman may be a Judicial Member or an Administrative Member.

All that this sub-clause permits is that the Chairman can function at more than B one Benches. This provision obviously had to be included in order to enable the Chairman to function at different places when he goes on tour. This provision does not enable the Judicial Member to act as an Administrative Member or vice versa. If the Chairman is a person who was an Administrative Member, then under Section 5(4)(a) if he goes to another Bench he can sit C on that Bench as an Administrative Member, but cer; tainly not as a Judidal Member. The same, willbe true with regard to the Chairman who is a Judicial Member.

We do not find any infirmity in the order of the High Court. The :· solution to the problem in hand is to make early appointments.

The special leave petition is dismissed.

T.N.A.

Petition dismissed.
SITA RAM SINGHANIA

BANK OF TOKYO-MITSUBISHI LTD. AND ORS.

MAY 11, 1999

[B.N. KIRPAL ANDS. RAJENDRA BABU, JJ.]

Recovery of Debts Due to Banks' and Financial Institutions Act. 1993;

Debi., Recovery Tribunal-Suit instituted by Bank-Grant of stay of C recovery proceedings as a matter of course-Propriety of-Proceeding initiated in the State of Madhya Pradesh-Held Allahabad High Court has no jurisdiction.

Petition(s) for Special Leave to Appeal (Civil) No. 6759/1999.

D From the Judgment and order dated 09.04.1999 in CMWP 15012/99 of

the High Court of Judicature at Allahabad.

Ravinder Sethi, Sanjay Gupta and Rajeev Sharma for the Petitioner.

The Court made the following Order :

We see no reason why the High Courts in such matters filed by the defendants in suits instituted by the banks before the Debt Recovery Tribunal should more or less as a matter of course grant stay of proceedings before the Tribunals. The very purpose of setting up the 'tribunals will be lost by granting stay merely because there is challenge to the notification constituting F the Tribunal. In the present case, the High Court has rightly come to the conclusion that as the proceedings were initiated in the State of Madhya Pradesh, the Allahabad High Court had no jurisdiction.

The special leave petition is dismissed.

T.N.A.

Petition dismissed.