Supreme Court of India
STATE OF RAJASTHAN & ANR.versusSURENDRA MOHNOT & ORS.
- Citation
- 2014 INSC 432
- Decided
- 30 June 2014
- Disposal
- Appeal(s) allowed
- Bench
- ANIL R DAVE
Holding
Selection‑grade benefits accrue only from the date of regularization; ad‑hoc service is excluded, and the consent order does not create estoppel against the binding law in Jagdish Narain Chaturvedi.
Summary
The respondents were appointed on an ad‑hoc basis as Lower Division Clerks and later regularized. They sought selection‑grade pay from the date of their initial appointment, relying on earlier circulars, while the State Government issued circulars stating that service for selection‑grade eligibility should be counted only from the date of regularization. The Single Judge allowed the writ petition on the basis of the Chandra Shekhar case, which dealt with increments, not selection grades. On review, the respondents argued that the binding precedent was Jagdish Narain Chaturvedi, which holds that ad‑hoc service does not count for selection‑grade eligibility. The Supreme Court held that Chandra Shekhar is irrelevant to selection grades, affirmed the rule from Jagdish Narain Chaturvedi that only regularized service counts, and rejected the notion that a consent order creates estoppel against law. It also held that the High Court erred in rejecting the review application. Consequently, the writ petition was dismissed and the appeals were allowed.
Issues considered
- The period for grant of selection grade should be reckoned from the date of regularization or from the date of initial ad‑hoc appointment.
- Whether the Chandra Shekhar decision, which concerned increments, is applicable to the grant of selection grades.
- Whether a consent order can estop a party from raising a point of law contrary to a later binding precedent.
- Whether the High Court was justified in rejecting the review application under Order 96(3) CPC.
Legislation cited
- Code of Civil Procedure, 1908s. Order 96(3)
Subjects
selection gradead‑hoc appointmentregularizationservice tenureestoppelreview jurisdictionCode of Civil Procedurecivil service lawadvocate's duty
Judgment
[2014] 6 S.C.R. 191
STATE OF RAJASTHAN & ANR. A
v.
SURENDRA MOHNOT & ORS.
(Civil Appeal Nos. 5860-61 of 2014)
JUNE 30, 2014
B
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
Service law - Grant of selection grade - Claim of -
Regularisation of employees appointed on ad hoc basis as
Lower Division Clerks for a fixed tenure - Grant of increments C
to the said employees for the period before their regularization
in service in *Chandra Shekhar's case - Issuance of circular
by State Government pertaining to prescription of Selection
Grades for employees that service would be counted from the
date the employee had regularly been appointed in the D
existing cadre/service held in **Jagdish Narain Chaturvedi's
case - Thereafter, representation of employee for grant of
selection grade on completion of 18 years on the ground that
they had been granted first selection pay scale from the date
of their initial appointment - Rejection of representation - Writ E
petition seeking grant of selection grade from the date of their
initial appointment - Submission of the State Government
that the matter was covered by Jagdish Narain Chaturvedi's
case and not by Chandra Shekhar's case - Writ petition
allowed in view of the consent order that matter covered by F
Chandra Shekhar's case - Dismissal of review application as
a/so appeal thereagainst - On appeal, held: Chandra
Shekhar's case pertains to grant of increments for the period
orior to regularization - It has nothing to do with the grant of
selection gradf;) - Law enunciated in Jagdish Narain
Chaturvedi's case that the period for grant of selection grade G
' as to be reckoned from the date of regularization in service
· nd not prior to that, is binding - Employees prior to
egu/arization_ were not members of service or· a part of the
191 H
192 SUPREME COURT REPORTS [2014] 6 S.C.R.
A cadre - They are only entitled to the benefit of selection grade
from the date of regularization - Since there can be no
estoppel against law, consent given in a court that a
controversy is covered by a judgment which has no
applicability, there cannot be an estoppel from raising the
B point that the same was erroneously cited - Writ court while
rejecting the app(ication for review only noticed that the order
was passed on agreement - Single Judge did not think it
appropriate to appreciate the stand of the State and passed
an absolutely laconic order - Thus, writ court not justified in
C rejecting the application for review - Estoppel - Review -
Code of Civil Procedure, 1908 - Ord. 47.
Advocates - Role of - Explained - As regards, the
counsel for the State, he has a higher responsibility - He has
a special duty towards the court in rendering assistance.
D
Respondent Nos. 1 to 7 were appointed on ad hoc
basis as Lower Division Clerks for a fixed tenure and were
subsequently regularized. State of Rajasthan issued a
circular pertaining to prescription of Selection Grades for
E employees in Class IV, Ministerial and subordinate
services and those holding isolated posts and fixation of
pay in Selection Grades. The respondents along with
others sought increments for the period before their
regularization in service but the State Government
refused for the same. The respondents and others filed
F writ petitions but the Single Judge dismissed the same.
The Division Bench in *Chandra Shekhar v. State of
Rajasthan and others, allowed the appeals, holding that
the respondents were entitled to grant of increments on
the basis of contract of service. This Court upheld the
G same in CA No. 3441 of 1998. Thereafter, the State
Government issued a circular on 17.4.2002 granting
annual grade increments. In 2009, the Government of
Rajasthan issued a clarificatory circular prescribing the
method for grant of Selection Grades as well as the
H
STATE OF RAJASTHAN v. SURENDRA MOHNOT 193
manner of computation of 9, 18 and 27 years, referring A
to the earlier circular and the Government Order that for
the purpose of grant of selection grade service was to be
counted from the date the employee had regularly been
appointed in the existing cadre/service. In 2009 circular
the claim of the employees for grant of selection grade B
from the date of ad hoc appointment, action of the State
Government and the decision in **Jagdish Narain
Chaturvedi's case was mentioned. Thereafter, certain
directions were issued to the competent authorities that
employees may be granted selection grades by counting c
the service rendered by them only after regular
appointment in the cadre/service. Respondents submitted
a representation for grant of selection grade on
completion of 18 years on the ground that they had been
granted first selection pay scale from the date of their 0
initial appointment. The representation was rejected. The
respondents filed writ petition seeking grant of selection
grade from the date of their initial appointment or from the
date when the juniors to some of the petitioners were
granted. The State Government submitted that the matter
E
was covered by Jagdish Narain Chaturvedi's case and
not by Chandra Shekhar's case which pertained to grant
of increments during the period of temporary service. The
State Government then issued a circular on 20.8.2010
which prescribed selection grade for employees in
accordance with the decision in Jagdish Narain F
Chaturvedi's case wherein the period of ad hoc service
is not countable for the purpose of grant of selection
grades. In view of the agreement between the parties that
the controversy between the parties is no more res
integra in view of Chandra Shekhar's case, the writ G
petition was allowed. An application for review was filed
averring that the controversy was not covered by the
decision in Chandra Shekhar's case but by Jagdish
Narain Chaturvedi's case. An application for review was
rejected. The State Government filed an appeal. The H
194 SUPREME COURT REPORTS [2014] 6 S.C.R.
A Division Bench holding that the same was a consent
order, no appeal could be filed, dismissed the appeal.
Hance, the instant appeals.
Allowing the appeals, the Court
8 HELD: 1. The decision in the case of *Chandra
Shekhar's case pertains to grant of increments for the
period prior to regularization . It has nothing to do with
the grant of selection grade. The iaw enunciated in
** Jagdish Narain Chaturvedi's case is that the period for
C grant of selection grade has to be reckoned from the date
. of regularization in service and not prior to that, and
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,
D 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. They may have been given the first benefit on an
E erronedus 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. The State, as the
F latter circular would indicate, has decided not to take any
steps tor recovery of the benefit. Therefore, the writ
petition preferred by the respondents before the High
Court is dismissed.[Para 15, 16, 28] [208-B; 209-F; 215-
F-H; 216-A-C]
G State of Rajasthan and others v. Jagdish Narain
Chaturvedi 2009 (8) SCR 1011: (2009) 12 sec 49 - relied
on.
Chandra Shekhar v. State of Rajasthan and others CA
H (Writ No. 377/1996; State of Haryana v. Haryana Veterinary
STATE OF RAJASTHAN v. SURENDRA MOHNOT 195
& AHTS Association and another 2000 (3) Suppl. SCR 322: A
(2000) 8 SCC 4; Ram Ganesh Tripathi v. State of U.P.1996
(10) Suppl. SCR 248:(1997) 1 SCC 621 - referred to.
2.1. There can be no estoppal against law. Consent
given in a court that a controversy ls covered by a
judgment which has no applicability whatsoever and B
pertains to a different field, cannot estopp the party from
raising the point that the same was erroneously cited.
[Para 17] [209-G-H; 210-A]
Union of India vs. Hira Lal and Others (1996) 10 SCC C
574; B.S. Bajwa and Another vs. State of Punjab and Others
1996 (6) Suppl.SCR 451: (1998) 2 SCC 523 - referred to.
2.2. The order of rejecting the application for review
by writ court only notices that the order rejecting
application for review, was passed on agreement and, o
therefore, it could not be the subject-matter of review. The
Single Judge did not think it appropriate to appreciate the
stand of the State and passed an absolutely laconic
order. The application for review did not require a long
drawn process of reasoni.ng. It did not require any E
advertence on merits which is in the province of the
appellate court. It was a manifest and palpable error. A
wrong authority which had nothing to do with the lis was
cited and that was conceded to. An already existing
binding precedent was ignored. At a mere glance it would
F
have been clear to the writ court that the decision was
rendered on the basis of a wrong authority. The error was
self-evident. When such self-evident errors come to the
notice of the court and they are not rectified in exercise
of review jurisdiction or jurisdiction of recall which is a G
facet of plenary jurisdiction under Article 226 of the
Constitution, a grave miscarriage of justice occurs. In
appeal, the Division Bench did not think even necessary
to look atthe judgments and did not apprise itself the fact
that an application for review had already been preferred
H
196 SUPREME COURT REPORTS [2014] 6 S.C.R.
A before the Single Judge and faced rejection. As it seems,
it has transiently and laconically addressed itself to the
principle enshrined in Section 96 (3) CPC, as a
consequence of which the decision rendered by it has
carried the weight of legal vulnerability. [Para 20, 26] [210-
B E; 212-G; 213-A-D]
Shivdeo Singh and others v. State of Punjab and others
AIR 1963 SC 1909; Aribam Tuleshwar Sharma v. Aribam
Pishak Sharma and others (1979) 4 SCC 389; Mis
Thungabhadra Industries Ltd. v The Government of Andhra
C Pradesh represented by the Deputy Commissioner of
Commercial Taxes 1964 SCR 174:AIR 1964 SC 1372; Mis
Northern India Caterers (India) Ltd., v. Lt. Governor of Delhi
1980 (2) SCR 650: (1980) 2 SCC 167; Satyanarayan
Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale
D 1960 SCR 890:AIR 1960 SC 137 - referred to.
2.3. The Single Judge allowed the writ petition
accepting the submission that the controversy was
covered by the decision in Chandra Shekhar's case. The
order of the Single Judge was recorded on the basis of
E concession given by counsel for the State. The counter
affidavit filed by the State was absolutely contrary to the
said statement. It is further perceivable that the Single
Judge also recorded that he had perused the records. It
does not appear to be so, for the counter affidavit and th~
F documents annexed thereto clearly reveal that the stand
of the State was that the controversy in Chandra
Shekhar's case pertained to the grant of increment for the
period when an employee had not been regularized in the
cadre and did not relate to the grant of selection grade
G which only gets ripened for the purpose of computation
of period from the date of regularization. In such a case,
it was obligatory on the part of the court at least to see
whether the controversy was covered by the decision
referred to. Had the Single Judge perused the judgment
H by the Division Bench rendered in Chandra Shekhar's
STATE OF RAJASTHAN v. SURENDRA MOHNOT 197
case and the order passed by this Court in Civil Appeal A
No. 3443 of 1998, he would have addressed the lis in a
different manner. That apart, 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 B
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 Diyision Bench in the intra-court c
appeal instead of adverting to the concept of consent
decree as stipulated under Section 96(3) CPC, should
have been guided by the established principles to test
whether the concession in law was correct or not. Non-
acceptance of a mistake is not a heroic deed. On the 0
contrary, it reflects flawed devotion to obstinancy. The
'pink of perfection' really blossoms in acceptance. [Para
27] [213-E-H; 214-A-E; 215-E-F]
City and Industrial Development Corporation v. Oosu
Aardeshir Bhiwandiwala and others 2008 (16) SCR 28:(2009) E
1 sec 168 - relied on.
3. 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 sacrosanct role
assigned to an advocate. The counsel for the State has F
a higher responsibility. A counsel who represents the
Stafe is required to state the facts in a correct and honest
manner. He has to discharge his duty with immense
responsibility and each of his action has to be sensible.
He is expected to have higher standard of .conduct. He G
has a special duty towards the court iii rendering
assistance. It is because he has access to the public
records and is also obliged to protect the public interest.
That apart, he has a moral responsibility to the court.
When these values corrode, one can say "things fall H
198 SUPREME COURT REPORTS [2014] 6 S.C.R.
A apart". He should always remind himself that an
advocate; while not being insensible to ambition and
achievement, should feel the sense of ethicality and
nobility of the legal profession in his bones. There is a
hope, hopefully, there would be apposite response
B towards duty; the hollowed and honoured duty. [Para 29,
31) [216-D; 217-C-E]
O.P. Sharma and others v. High Court of Punjab and
Haryana 2011 (6) SCR 301 :(2011) 6 SCC 86; Sanjiv Datta,
Deputy Secretary, Ministry of Information and Broadcasting,
C New Delhi; Kai/ash Vasdev, Advocate; Kitty Kumarmangalam
(Smt.), Advocate 1995 (3) SCR 450:(1995) 3 SCC 619 -
referred to.
Case Law Reference:
D 2000 (3) Suppl. SCR 322 Referred to Para 15
1996 (10) Suppl. SCR 248Referred to Para 15
2009. (8) SCR 1011 Relied on Para 16, 28
(1996) 10 sec 574 Referred to Para 18
E 1996 (6) Suppl.SCR 451 Referred to Para 19
AIR 1963 SC 1909 Referred to Para 21
(1979) 4 sec 389 Referred to Para 22
1964 SCR 174 Referred to Para 23
F
1980 (2) SCR 650 Referred to Para 24
1960 SCR 890 Referred to Para 25
2008 (16) SCR 28 Relied on Para 27
G 2011 (6) SCR 301 Referred to Pjlra 29
1995 (3) SCR 450 Referred to Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
5860-61 of 2014.
H
STATE OF RAJASTHAN v. SURENDRA MOHNOT 199
From the Judgment and Order dated 06.07.2011 in A
. SBCWP No. 4185/2010, DBCSA No. 835/2011 dated 22/10/
2011 in SBCWP No. 4185/2010, DBCRA No. 67/2011,
DBCSA No. 835/2011 of the High Court of Rajasthan at
Jodhpur.
Dr. Manish Singhvi, AAG, Amit Lubheya, lrshad Ahmad for B
the Appell~mts.
Aishwarya Bhati for the Respondents.
The Judgment of the court was delivered by
DIPAK MISRA, J. 1. Leave granted.
c
2. Respondent Nos. 1 to 6 were appointed on ad hoc basis
as Lower Division Clerks either directly or from amongst the
class IV employees for a fixed tenure for smooth functioning of
administrative work. The nature of appointments are clear from D
the appointment orders dated 26.6. 1986, 5. 7 .1986 and
25.10.1986. Respondent No. 7 was appointed on similar
conditions in January, 1998. On 28.4.1993, the respondents
· appeared in the requisite test and, accordingly, were regularized
on the posts of Lower Division Clerk by order dated 28.4.1993. E
3. On 25.1.1992, the State.of Rajasthan issued a circular
which pertained to prescription of Selection Grades for
employees in Class IV, Ministerial and subordinate services
and those holding isolated posts and fixation of pay in Selection
Grades. The circular was made applicable to certain categories F
of employees and it also prescribed the period. Paragraph 2
of the circular stipulated that (i) the first Selection Grade shall
be granted from the day following the day on which one
completes .service of nine years, provided that the employee
has not got one promotion earlier as is available in his existing G
cadre; (ii) the second Selection Grade shall be granted from
the day following the day on which one completes service of
eighteen years, provided that the employees has not got two
promotions earlier as might be available in his existing cadre
and the first Selection Grade granted to him was lower than the H
200 SUPREME COURT REPORTS [2014] 6 S.C.R.
A pay scale of Rs.2200-4000; and (iii) the third Selection Grade
shall be granted from the day following the day on which one
completes services of twenty seven years, provided that the
')mployee has not got three promotions earlier as might be
available in his existing cadre and the first or the second
8 Selection Grade granted to him as the case may be was lower
than the pay scale of Rs.2200-4000. Paragraph 3 provided that
the service of 9, 18 and 27 years, as the case may be, would
be counted from the date of first appointment in the existing
cadre/service in accordance with the provisions contained in
c the Recruitment Rules. It is apt to note here that the circular
postulated certain other conditions 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.
D eligible for promotion on the basis of seniority shall be
considered to the satisfactory for the purpose of grant of
the selection.
8. Notwithstanding anything contained in the foregoing
E 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.
9. Grant of selection Grade shall not effect the seniority in
the cadre not the sanctioned strength of each category of
F posts in the cadre.
10. 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
G grade as the case may be with reference to pay being
drawn immediately before grant of the second or third
selection grade."
4. The aforesaid circular was issued to avoid stagnation
in certain categories of service with the objective that a
H stagnated employee should get the next pay-scale available for
STATE OF RAJASTHAN v. SURENDRA MOHNOT 201
[DIPAK MISRA, J.]
the promotional post without availing the promotion because A
of lack of vacancies after completion of 9, 18 and 27 years of
service.
5. The respondents, along with some others, pr~ferred
: certain writ petitions challenging the action of the State
B
Government refusing to grant increments to them for the period
before their regularization in service. The learned single Judge
dismissed the writ petitions, and on being challenged in D.B.
Civil Special Appeal No. 377 of 1996 (Chandra Shekhar v.
State of Rajasthan and others), the Division Bench opined thus: C
"The appellants continued in the service from 1986 to 1993
as temporary employees in the Pay Scale given in theii'
letters of appointment. The Pay Scale indicated the
increment they would earn periodically. Thus, on the basis o
of contract or employment, itself, the appellants were
entitled to grant of increments during the period they were
arriving in temporary capacity before the regularization of
their service. Therefore, even de hors the rules, they were
entitled to grant of increments on the basis of contract of E
service.
We would therefore, allow these appeals, set aside
the impugned judgment and order of the learned single
Judge and direct the respondent, the State, to pay arrears
of increments on the basis of the pay scales mentioned in • F
the appointment letters of the appellants. This is to be done
within six months from today. As a consequence of this
order, the necessary re-fixation in the pay scales granted
to the appellants after regularization will also be effected
within the aforesaid period." G
6. The said order was assailed before this Court in Civil
Appeal No. 3441 of 1998 and other connected appeals. This
Court, vide order dated 27.9.2001, dismissed the appeals by
passing the following order:-
H
202 SUPREME COURT REPORTS [2014] 6 S.C.R.
A "The question raised in these appeals is as to whether the
respondents would not entitled to grant of increments
during the period of their temporary service. Answer to this
question would certainly depend on the terms of service
upon which they were employed.
B
The High Court has examined this aspect of the matter and
has found that they had been appointed to a particular post
which carries a time scale and pay. It that is so, if the
benefits arising therein in granting the increments had
been given, we do not think there is any infirmity in the
c order made by the High Court. These appeals are
therefore, dismissed. "
7. After the civil appeals were dismissed, the State
Government issued a circular on 17.4.2002 granting annual
D 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.
E 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
F 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 empl9yees for grant of Selection Grade
from the date·of ad hoc appointment and the action of the State
G 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. Jagdish f"}arain Chaturvedi1• Eventually, certain
directions- were issued to the competent authorities which are
seemly to be reproduced here: -
H
STATE OF RAJASTHAN'v. SURENDRA MOHNOT . 203
[DIPAK MISRA, J.]
"It is, therefore, enjoined upon all the authorities competent A
to sanction selection grade that in case where selection
grades have been granted to the State Employees by
counting the service rendered before regular appointment
in the cadre/service in accordance with the provisions
contained in the relevant recruitment rules i.e. ad hoc B
service/work-charged service/daily wages etc. may be
reviewed. Such employees may be granted selection
grades by counting the service rendered by them only after
regular appointment in the cadre/service in accordance
with the provisions contained in the relevant recruitment c
rules. A copy of the judgment dated 08.05.2009 of the
Hon'ble Supreme Court is enclosed.
All such.cases may be reviewed and decided by 31st
of July, 2009 positively and compliance report should be
conveyed to the Administrative Department latest by 10th D
of August, 2009. The Administrative Department shall
ensure that compliance of the aforesaid orders is made
in time by all the appointing authorities under them. In case
of non compliance of these orders, Administrative
Department may take action against the defaulting E
authorities.
The excess payment drawn by the concerned
employees due to grant of selection grades to them by
counting the service rendered before regular appointment F
in the cadre/service in accordance with the provisions
contained in the relevant recruitment rules shall, however,
to be recovered for the period upto 30.06.2009 only. From
01.07.2009, the payment of pay and allowance shall be
made on the basis of revised rates of pay as per this G
order."
8. As the factual score would demonstrate the respondents
submitted a representation for grant of selection grade on
completion of 18 years on the foundation that they had been
H
204 SUPREME COURT REPORTS [2eJ14] 6 S.C.R.
A granted first selection pay scale from the date of their initial
appointment vide order dated 20.7.2000 but had not been
extended the benefit of the second selection grade in 2009. The
said representation came to be rejected vide order dated
10.3.2010 for which the respondents preferred S.B. Civil Writ
B Petition No. 4185 of 2010 before the High Court for issue of a
· writ of mandamus for grant of selection grade from the date of
their initial appointment or from th~ 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
C 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
0
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
E seNice for the purpose of grant of selection grade.
9. 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
F employees in Class-IV, Ministerial and Subordinate SeNices
and those holding isolated pots and fixation of pay in Selection
Grades issued in accordance with the decision in Jagdish
Narain Chaturvedi's case. Clarifying the postulates in the
earlier circulars it was laid down as follows: -
G
"As per this judgment dated 8.5.2009 of the Hon'ble
Supreme Court the period of ad-hoc service is not
countable for the purpose of grant of selection grades. In
H 1. (2009) 12 sec 49.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 205
[DIPAK MISRA, J.]
compliance State Government issued an order No. F.16(2) A
FD/ Rules/98 dated 29.6.2009 prescribing the method of
fixation of pay in Selection Grade w.e.f. 1.7.2009.
Representations have been received that order dated
29.6.2009 has resulted in substantial drop in emoluments B
of lowly paid employees causing financial hardship.
Accordingly, the State Government has reconsidered the
matter and in partial modification of order of even number
dated 29.6.2009, the Governor is pleased to order that in
cases where Government servants have been granted c
selection grade prior to order dated 29.6.2009 by counting
period of ad-hoc service, such case may not be reviewed.
However, where additional selection grades become
admissible to such employees after 29.6.2009 under the
rules, this shall be granted by excluding the period of ad- D
hoc service as per the orders of Hon'ble Supreme Court.
For example, if any employees got the advantage of first
selection grade prior to 29.6.2009, on completion of
service of 9 years (after inclusion of say, three years, ad-
hoc service), his next selection grade on completion of E
service of 18 years, on or after 29.6.2009 shall be granted
only after three years of ad-hoc service is added to 18
years, i.e., 18+3=21 years.
All pending cases would be decided as per these orders.
F
The cases of grant of sel~ction grade decided subsequent
to order of even number dated 29.6.2009, may be
reviewed and revised in accordance with the provisions
of this order. Similarly pension cases of Government
servants finalized after re-fixation of pay under order dated G
29.6.2009 may also be reviewed and revised. However,
cases of persons who retired prior to 29.6.2009 wou!d not
be re-opened."
10. When the position stood thus, the writ petition prepared
H
206 SUPREME COURT REPORTS ·[2014] 6 S.C.R.
A by the respondents came for hearing before the writ .court on
11.11.2010. The learned single Judge passed the following
order: -
"Counsel for the parties are in agreement that the
controversy involved in this petition for writ is not more res
B
integra in view of Division Bench judgment of this Court
passed in D.S. Civil Special Appeal (Writ) No. 377/1996
(Chandra Shekhar vs. State of Rafasthan & ors.) decided
on 06.01.1998 as affirmed by Hon'ble Supreme Court on
rejection of Civil Appeal No.3443/1998 (State of
c Rajasthan & Anr. vs. Chandra Shekhar & Ant.) 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
D 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
E BenCQ judgment of this Court in D.B. Civil Appeal (Writ) No.
377/1996 (Chandra Shekhar vs. State of Rajasthan & ors.)."
11. 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).
F However, the said petition for review was rejected by the
learned.single Judge vide order dated 7.2.2011.
12. Being dissatisfied, the State Government preferred
D.B. Civil Special Appeal (Writ) No. 835 of 2011 and the
G Division Bench on 6.7.2011, after reproducing the order of the
learned single Judge, opined that as the same was a consent
order, no appeal could be filed. Being of this view the Division
Bench dismissed the appeal. An application for review did not
meet with success.
H 13. Questioning the pregnability of the decision of the writ.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 207
[DIPAK MISRA, J.]
court it is submitted by Dr. Singhvi that whe it was brought to /\
the notice of learned Single Judge by way of review that the
decision that had been referred to in the order did not pertain
to the lis in question but was covered by the binding precedent
of this Court in Jagdish Narain Chaturvedi (supra) he should
have allowed the review application and proceeded to pass a B
decision to record a verdict in accordance with law. It is also
urged by him that the Division Bench while dealing with the
·intra-court appeal did not bear in mind that the State had
preferred the review application which had already been
dismissed on the ground that it was not open to the State to c
say that the controversy was not covered by the decision in
Chandra Shekhar's case, and it could only be raised in
appeal. Learned counsel for the State would submit that the
· Division Bench while dealing with appeal only recorded that the
order had been passed with the agreement of the parties and, D
therefore, it did not call for any interference and it was open to
the appellants to approach the writ court first and then invoke
the jurisdiction in intra-court appeal, which graphically exposits
the erroneous approach. It is further urged by him that when on
the face of a binding preced.ent that squarely pertains to the
issue between the State and similarly situated employees the E
writ court should not have cryptically rejected the same that the.
order was passed on consent.
14. Ms. Aishwarya Bhati, learned counsel appearing for
the respondents submitted that the State having conceded the F
position cannot turn around and argue something different to
deprive the respondents the benefits of the decision of the High
Court as it does not behove on the part of a model employer.
It is canvassed by her that when the first selection grade was
granted after completion of 9 years from the date of initial .G.
appointment there is no justification not to accept the said date
and fix the date of commencement from the date of
regularization i.e., 28.04.1993 as that would cause immense
hardship and some of the respondents, though deserving,
would be deprived of the benefit of selection grade on H
208 SUPREME COURT REPORTS [2014] 6 S.C.R.
A completion of 27 years which would affect their pensionary
benefits.
15. 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
8
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
C 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
D 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 another2 . Reference was made to the
E language used in the circulars which uses the words
"appointments relatable to the existing cadre/service". The Court
referred to the provisions of Rajasthan Absorption of Surplus
Personnel Rules, 1969 and various paragraphs from the
Haryana case and the decision in Ram Ganesh Tripathi v.
/F State of U.P3. and came to hold as follows: -
"18. In order to become "a member of service" a candidate
must satisfy four conditions, namely,
(1) the appointment must be in a substantive capacity;
G
(i1) to a post in the service i.e. in a substantive
vacancy;
2. (2000) a sec 4.
H 3. (1997) 1 sec 621.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 209
[DIPAK MISRA, J.]
(iii) made according to rules; A
(iv) within the quota prescribed for the source.
Ad hoc appointment is always to a post but not to the
cadre/service and is also not made in accordance with the
provisions contained in the recruitment rules for regular B
appointment. Although the adjective "regular'' was not used
before the words "appointment in the existing cadre/
service" in Para 3 of the G.O. dated 25-1-1992 which
provided for selection pay scale the appointment
mentioned there is obviously a need for regular C
appointment made in accordance with the Recruitment
Rules. What was implicit in the said paragraph of the G.O.
when it refers to appointment to a cadre/service has been
made explicit by the clarification dated 3-4-1993 given in
respect of Point 2. The same has been incorporated in D
Para 3 of the G.O. dated 17-2-1998."
Proceeding further, the Court ultimately held thus: -
"Apart from Haryana Veterinary case the position in law
as stated in State of Punjab v. lshar Singh 4 and State-Of, E
Punjab v. Gurdeep Kumar Uppa/5 clearly lays down that
while reckoning the required length of service the period
of ad hoc service has to be excluded."
16. From the aforesaid enunciation of law it is quite vivid F
that the period for grant of selection grade has to be reckoned
from the date of regularization in service and not prior to that.
Thus, the aforesaid judgment of this Court pertains to the same
.
circular and is a binding precedent from all spectrums .
G
17. It is well settled in law that there can be no estoppel
against law. Consent given in a court that a controversy is
covered by a judgment which has no applicability whatsoever
4. (2002) 1o sec 67 4.
s. (2003) 11 sec 732. H
210 SUPREME COURT REPORTS [2014) 6 S.C.R.
A and pertains to a different field, cannot estopp the party from
raising the point that the same was erroneously cited.
18. In Union of India vs. Hira Lal and Others6 , it has been
held that the concession made by the government advocate on
the question of law could not be said to be binding upon the
8
Government.
19. In B.S. Bajwa and Another vs. State of Punjab and
Others7 , a Division Bench of the High Court of Punjab and
Haryana had granted the relief on the basis of concession given
C 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
D it had been so done by filing a review petition in the High Court
itself.
20. Having stated so, we shall presently proceed to
address whether the writ court was justified in rejecting the
E application tor review. The order of rejection only notices that
the order.was passed on agreement and, therefo~e. 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.
F 21. While dealing with the inherent powers of the High
Court to review its order under Article 226 of the Constitution
in Shivdeo Singh and others v. State of Punjab and others 8
the Constitution Bench observed that nothing in Article 226 of
the Constitution precludes a High Court from exercising the
G power of review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave
palpable errors _committed by it.
6. (1996) 10 sec 574.
7. (1998) 2 sec 523.
H " AIR 1963 SC 1909.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 211
[DIPAK MISRA, J.]
22. In Aribam Tuleshwar Sharma v. Aribam Pishak A
Sharma and others9, the two-Judge Bench speaking through
Chinappa Reddy, J. observed thus:-
"It is true as observed by this Court in Shivdeo Singh v.
State of Punjab, there is nothing in Article 226of the
B
Constitution to preclude a High Court from exercising the
power of 1-::view which inheres in every court of plenary
jurisdiction to prevent miscarriage o( justice or to correct
grave and palpable errors committed by it. But, there are
definitive limits to the exercise of the power of review. The
power of review may be exercised o the discovery of new C
and important matter or evidence which, after the exercise
of due diligence was not within the knowledge of the
person seeking the review or could not be produced by
him at the time when the order was made; it may be
exercised where some mistake or error apparent on the D
face of the record is found; it may also be exercised on
any analogous ground. But, it may not be exercised on the
ground that the decision was erroneous on merits. That
would be the province of a court of appeal. A power of
review is not to be confused with appellate powers which E
may enable an appellate Court to correct all manner of
errors committed by the subordinate Court."
23. In M/s Thungabhadra Industries Ltd. v The
Government of Andhra Pradesh represented by the Deputy
F
Commissioner of Commercial Taxes 10, while dealing with the
concept of review the court opined thus:-
"A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected, but lies
only for patent error. We do not consider that this furnishes G
a suitable occasion for dealing with this difference
exhaustively or in any great detail, but it would suffice for
9. (1979) 4 sec 389.
10. AIR 1964 SC 1372. H
212 SUPREME COURT REPORTS [2014] 6 S.C.R.
A us to say that where without any elaborate argument one
could point to the error and say here is a substantial point
of law which stares one in the face, and there could
reasonably be no two opinions entertained aboutit, a clear
case of error apparent on the face of the record would be
B made out."
. 24. In Mis Northern India Caterers (India) Ltd., v. Lt.
Governor of Delhi11 , R.S. Pathak, J (as His Lordship then was)
while speaking about jurisdiction of review observed that:-
C " ..... 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
o judicial fallibility'."
25. 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 Tirum9le 12 are useful:-
E
"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
F 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 the rule governing the powers of the
superior court to issue such a writ."
G
26. In the case at hand, as the factual score has
uncurtained, the application for review did not require a long
drawn process of reasoning. It did not require any advertence
11. (1980) 2 sec 167.
H 12. AIR 1960 SC 137.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 213
[DIPAK MISRA, J.]
on merits which is in the province of the appellate court. Frankly A
speaking, it was a manifest and palpable error. A wrong
authority which had nothing to do with the lis was cited and that
was conceded to. An already existing binding precedent was
ignored. At a mere glance it would have been clear to the writ
court that the decision was rendered on the basis of a wrong B
authority. The error was self-evident. When such self-evident
errors come to the notice of the court and they are not rectified
in exercise of review jurisdiction or jurisdiction of recall which
is a facet of plenary jurisdiction under Article 226 of the
. Constitution, a grave miscarriage of justice occurs. In appeal c
;the Division Bench, we assume, did not think even necessary
to look at the judgments and did not apprise itself the fact that
an application for review had already been preferred before the
learned Single Judge and faced rejection. As it seems, it has
transiently and laconically addressed itself to the principle 0
enshrined in Section 96 (3) of the Code of Civil Procedure, as
a consequence of which the decision rendered by it has carried
the weight of legal vulnerability.
27. Another aspect is required to be taken note of
especially regard being had to the facts of the case. The E
learned single Judge allowed the writ petition accepting the
submission that the controversy was covered by the decision
in Chandra Shekhar (supra). The order of the learned single
Judge has been recorded on the basis of concession given by
learned counsel for the State. The counter affidavit filed by the F
State was absolutely contrary to the said statement. It is further
perceivable that the learned single Judge has also recorded
that he had perused the records. It does not appear to be so,
for the counter affidavit and the documents annexed thereto
clearly reveal that the stand of the State was that the G
controversy in Chandra Shekhar's case pertained to the grant
of increment for the period when an employee had not been
regularized in the cadre and did not relate to the grant of
selection grade which only gets ripened for the purpose of
computation of period from the date of regularization.[ In such H
214 SUPREME COURT REPORTS [2014] 6 S.C.R.
A 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
B 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
c 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.
0
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, should have
been guided by the established principles to test whether the
E concession in law was correct or not. In this context, it is useful
to refer to a passage from City and Industrial Development
Corporation v. Dosu Aardeshir Bhiwandiwala and others 13 ,
wherein this Court, while delineating on the power of jurisdiction
under Article 226, has expressed thus:-
F ''The Court while exercising its jurisdiction under Article
226 is duty-bound to Consider whether:
(a) adjudication of writ petition involves any complex
and disputed questions of facts and whether they
can be satisfactorily resolved;
G
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or ,effective
remedy for the resolution of the dispute;
H
------
13. (2009) 1 sec 168.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 215
[DIPAK MISRA, J.]
(d) person invoking the jurisdiction is guilty of A
unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by a
any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct
the State or its instrumentalities as the case may be to file
proper affidavits placing all the relevant facts truly and accurately
for the consideration of the Court and particularly in cases where c
public revenue and public interest are involved. Such directions
are always required to be complied with by the State. No relief
could be granted in a public law remedy as a matter of course
only on the ground that the State did not file its counter-affidavit
opposing the writ petition. Further, empty and self-defeating 0
affidavits or statements of Government spokesmen by
themselves do not form basis to grant any relief to a person in
a public law remedy to which he is not otherwise entitled to in
law."
The above quoted passage speaks eloquently and we E
respectfully reiterate. And we add, non-acceptance of a mistake
is not a heroic deed. On the contrary, it reflects flawed devotion
to obstinancy. The 'pink of perfection' really blossoms in
acceptance.
F
28. Our preceding analysis would clearly show that the
dictum in Jagdish Narain Chaturvedi (supra) 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 G
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
H
216 SUPREME COURT REPORTS [20.14] 6 S.C.R.
A 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
B 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
c and the writ petition stands dismissed.
29. 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
D in a properly prepared manner. That is the sacrosanct role
assigned to an advocate. In O.P. Sharma and others v. High
Court of Punjab and Haryana 14 , dealing with the ethical
standard of an advocate, though in a different context, a two-
Judge Bench has observed thus:-
E
"An advocate is expected to act with utmost sincerity and
respect. In all professional functions, an advocate should .
be diligent and his conduct should also be diligent and·
should conform to the requirements of the law by which an
F advocate plays a vital role in the preservation of society
and justice system. An advocate is under an obligation to
uphold the rule of law and ensure that the public justice
system is enabled to function at its full potential. Any
violation of the principles of professional ethics by an
advocate is unfortunate and unacceptable. Ignoring even
G
a minor violation/misconduct militates against the
fundamental foundation of the public justice system."
30. In Re: 1. Sanjiv Datta, Deputy Secretary, Ministry of
H 14. (2011) 6 sec 86.
STATE OF RAJASTHAN v. SURENDRA MOHNOT 217
[DIPAK MISRA, J.]
information and Broadcasting, New Delhi, 2. Kailash Vasdev, A
Advocate, 3. Kitty Kumarmangalam (Smt.}, Advocate 15 the court
observed that it is in the hands of the mempers of the
profession to improve the quality of the service they render both
to the litigants and public and to the courts and to brighten their
image in the society. The perceptible casual approach to the B
practice of profession was not appreciated by the Court.
31. As far as the counsel for the State is concerned, it can
be decidedly stated that he has a higher responsibility. A
counsel who represents the State is required to state the facts C
in a correct and honest manner. He has to discharge his duty
with immense responsibility and each of his action has to be
sensible. He is expected to have higher standard of conduct.
He has a special duty towards the court in rendering
assistance. It is because he has access to the public records
and is also obliged to protect the public interest. That apart, D
he has a moral responsibility to the court. When these values
corrode, one can say "things fall apart". He should always
remind himself that an advocate, while not being insensible to
ambition and achievement, should feel the sense of ethicality
and nobility of the legal profession in his bones. We hope, E
hopefully, there would be apposite response towards duty; the
-hollowed and honoured duty.
32. Consequently, the appeals are allowed without any
order as to costs. F
Nidhi Jain Appeals allowed.
15. (1995) 3 sec 619.
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