TMI Blog2014 (6) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 959 - SUPREME COURT) covers the controversy. The respondents prior to regularization were not members of service or a part of the cadre and hence, the benefit of the circular pertaining to selection grade was not applicable to them. Therefore, the irresistible conclusion is that they are only entitled to the benefit of selection grade from the date of regularization. The period of nine years, eighteen years and twenty seven years has to be computed from that date. True it is, they may have been given the first benefit on an erroneous understanding of the circular and also prior to the decision in Jagdish Narain Chaturvedi’s case. But that would not entitle them to assert their claim on that basis, for that would be contrary to the law of the land as stated in Jagdish Narain Chaturvedi’s case. Be it noted, the State, as the latter circular would indicate, has decided not to take any steps for recovery of the benefit. Therefore, we conclude and hold that the writ petition preferred by the respondents before the High Court deserves dismissal and, accordingly, the order passed by the writ court and the decision in intra-court appeal are set aside and the writ petition stands dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions which are as follows: - 7. Selection Grades in terms of this order shall be granted only to these employees whose record for service is satisfactory. The record of service which makes one eligible for promotion on the basis of seniority shall be considered to the satisfactory for the purpose of grant of the selection. Notwithstanding anything contained in the foregoing paragraphs, if an employee forgoes promotion on issue of order to this effect he shall not be granted second or third selection grade under this order. Grant of selection Grade shall not effect the seniority in the cadre not the sanctioned strength of each category of posts in the cadre. If an eligible employee becomes entitled to second or third selection grade straightway in terms of this order, his pay would be fixed directly in the second or third selection grade as the case may be with reference to pay being drawn immediately before grant of the second or third selection grade. The aforesaid circular was issued to avoid stagnation in certain categories of service with the objective that a stagnated employee should get the next pay-scale available for the promotional post without availing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dismissed, the State Government issued a circular on 17.4.2002 granting annual grade increments. On 29.6.2009, the Government of Rajasthan issued a clarificatory circular prescribing the method for grant of Selection Grades as well as the manner of computation of 9, 18 and 27 years. It referred to the earlier circular dated 25.1.1992 and the Finance Department Order No. F.20(1)FD(Gr.2)/92 dated 03.04.1993 whereby it was clarified that for the purpose of grant of Selection Grades service was to be counted from the date the employee had regularly been appointed in the existing cadre/service as per the provisions contained in the relevant recruitment rules. Referring to the earlier Government order it was stated that it had been clarified therein that the period of service rendered before regular appointment in accordance with the recruitment rules to the post would not be counted for grant of Selection Grade. In 2009 circular the claim of the employees for grant of Selection Grade from the date of ad hoc appointment and the action of the State Government were referred to. It was also stated therein how the State Government had come to this Court in State of Rajasthan and others v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date when the juniors to some of the petitioners were granted. A counter affidavit was filed by the State Government stating, inter alia, that the controversy was no more res integra in view of the legal position enunciated in Jagdish Narain Chaturvedi (supra) and other connected matters. Denying the averments that the case would not be covered in the litigation pertaining to grant of increments in the case of Chandra Shekhar (supra) it was asseverated that the said controversy squarely pertained to whether the employees were entitled for increments during the period of temporary service which is different than grant of selection grade, which is governed by the prescriptions enumerated in the circulars. It was categorically asserted that the temporary service was not to be included while counting the years of service for the purpose of grant of selection grade. Be it noted, after the decision of this Court in Jagdish Narain Chaturvedi (supra) the State Government had issued a circular on 20.8.2010 which prescribed selection grade for employees in Class-IV, Ministerial and Subordinate Services and those holding isolated pots and fixation of pay in Selection Grades issued in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in D.B. Civil Special Appeal (Writ) No. 377/1996 (Chandra Shekhar vs. State of Rajasthan ors.) decided on 06.01.1998 as affirmed by Hon ble Supreme Court on rejection of Civil Appeal No.3443/1998 (State of Rajasthan Anr. vs. Chandra Shekhar Anr.) on 27.9.2001. I have also examined the record of case and also gone through the judgment of this Court in the case of Chandra Shekhar (Supra). The controversy involved in this petition for writ as a matter of fact stands covered by the judgment aforesaid. Accordingly, this petition for writ is also allowed in the terms of Division Bench judgment of this Court in D.B. Civil Appeal (Writ) No. 377/1996 (Chandra Shekhar vs. State of Rajasthan ors.). An application for review was filed averring that the controversy was not covered by the decision in Chandra Shekhar (supra) but by Jagdish Narain Chaturvedi (supra). However, the said petition for review was rejected by the learned single Judge vide order dated 7.2.2011. Being dissatisfied, the State Government preferred D.B. Civil Special Appeal (Writ) No. 835 of 2011 and the Division Bench on 6.7.2011, after reproducing the order of the learned single Judge, opined that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letion of 27 years which would affect their pensionary benefits. At the very outset, we may clearly state that the decision in the case of Chandra Shekhar (supra) pertains to grant of increments for the period prior to regularization. It has nothing to do with the grant of selection grade. The circulars which we have reproduced hereinbefore relate to grant of selection grade. In this backdrop, it is to be seen what has been laid down by this Court in the case of Jagdish Narain Chaturvedi (supra). In the said case, a two-Judge Bench was dealing with the issue whether ad hoc appointments or appointments on daily wages or work-charge basis could be treated as appointments made to the cadre/service in accordance with the provisions contained in the recruitment rules as contemplated by the Government orders dated 25.1.1992 and 17.2.1998. It was contended on behalf of the State that stagnation benefits were given from the date of regularization and for the said purpose reliance was placed on the authority in State of Haryana v. Haryana Veterinary AHTS Association and another[(2000) 8 SCC 4]. Reference was made to the language used in the circulars which uses the words appointments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concession made by the government advocate on the question of law could not be said to be binding upon the Government. In B.S. Bajwa and Another vs. State of Punjab and Others[(1998) 2 SCC 523], a Division Bench of the High Court of Punjab and Haryana had granted the relief on the basis of concession given by the learned Additional Advocate General without considering the effect of the same or of taking into account the inconsistency with its earlier finding. This Court held that the concession on the point, being one of law, could not bind the State and, therefore, it was open to the State to withdraw and it had been so done by filing a review petition in the High Court itself. Having stated so, we shall presently proceed to address whether the writ court was justified in rejecting the application for review. The order of rejection only notices that the order was passed on agreement and, therefore, it could not be the subject-matter of review. The learned single Judge, as it appears, did not think it appropriate to appreciate the stand of the State and passed an absolutely laconic order. While dealing with the inherent powers of the High Court to review its order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r case of error apparent on the face of the record would be made out. In M/s Northern India Caterers (India) Ltd., v. Lt. Governor of Delhi[(1980) 2 SCC 167], R.S. Pathak, J (as His Lordship then was) while speaking about jurisdiction of review observed that:- .....that it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility . To appreciate what constitutes an error apparent on the face of the record the observations of the Court in Satyanarayan Laxminarayan Hegde v. mallikarjun Bhavanappa Tirumale[AIR 1960 SC 137] are useful:- An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of regularization. In such a case, we are disposed to think, it was obligatory on the part of the court at least to see whether the controversy was covered by the decision referred to. We are absolutely certain, had the learned single Judge perused the judgment by the Division Bench rendered in Chandra Shekhar (supra) and the order passed by this Court in Civil Appeal No. 3443 of 1998, he would have addressed the lis in a different manner. We have already stated the legal position with regard to legal impact as regards the concession pertaining to the position in law. That apart, we think that an act of the Court should not prejudice anyone and the maxim actus curiae neminem gravabit gets squarely applicable. It is the duty of the Court to see that the process of the court is not abused and if the court s process has been abused by making a statement and the same court is made aware of it, especially the writ court, it can always recall its own order, for the concession which forms the base is erroneous. Similarly, the Division Bench in the intra-court appeal instead of adverting to the concept of consent decree as stipulated under Section 96(3) of the Code of Civil Procedure, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to the benefit of selection grade from the date of regularization. The period of nine years, eighteen years and twenty seven years has to be computed from that date. True it is, they may have been given the first benefit on an erroneous understanding of the circular and also prior to the decision in Jagdish Narain Chaturvedi s case. But that would not entitle them to assert their claim on that basis, for that would be contrary to the law of the land as stated in Jagdish Narain Chaturvedi s case. Be it noted, the State, as the latter circular would indicate, has decided not to take any steps for recovery of the benefit. Therefore, we conclude and hold that the writ petition preferred by the respondents before the High Court deserves dismissal and, accordingly, the order passed by the writ court and the decision in intra-court appeal are set aside and the writ petition stands dismissed. Before parting with the case, we are constrained to state oft-stated principles relating to the sacred role of the members of the Bar. A lawyer is a responsible officer of the court. It is his duty as the officer of the court to assist the court in a properly prepared manner. That is the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
