Holding

The termination was mala fide and the Government's abolition of the post was unlawful, but the appeal is dismissed as the High Court's findings stand.

Summary

The respondent, Malti Sharma, an Inspector appointed under the Nursing Council Act, was terminated in April 1996 and challenged the termination by filing a writ petition. While the petition was pending, the Government of India issued a direction to abolish the post of Inspector, relying on an Office Memorandum that deemed vacant posts abandoned for a year as abolished. The Delhi High Court held that the termination was mala fide but refused reinstatement because the post was allegedly abolished, allowing the respondent to challenge the abolition order. On appeal, the Supreme Court affirmed the High Court's approach of not delving into the statutory nature of the post, emphasizing that the Inspector role is essential for the Council's statutory functions. The Court found the Government's action to declare the post abolished to be mala fide and an overreach, and dismissed the appeal with costs.

Issues considered

Whether the post of Inspector under the Nursing Council Act is a statutory post whose abolition requires compliance with statutory procedures.
Whether the termination of the respondent's services was mala fide.
Whether the Government of India's direction to abolish the post, issued while a writ petition was pending, was lawful.
Whether the respondent is entitled to reinstatement despite the alleged abolition of the post.

Subjects

administrative lawtermination of servicestatutory postmala fideabolition of postwrit petitionnursing councilservice lawgovernment overreach

Judgment

••
l

UNION OF INDIA AND ANR. A
v.
MAL Tl SHARMA

FEBRUARY 24, 2006

[S.B. SINHA AND P.P. NAOLEKAR, JJ.] B

Administrative law:

Administrative action-Abolition ofpost-Writ petition filed by employee.
challenging her termination order-During pendency of writ petition, post C
abolished-legality of-Held: Action clearly illegal and malafide-Service
law-Abolition of post.

Respondent, an Inspector under the Nursing Council Act was
terminated from service. She filed Writ Petition in High Court challenging D
the Termination Order. However, during pendency of Writ Petition,
Executive Committee ratified the order passed by President of Nursing
Council.

Union of India had filed Affidavit stating that though there was
proposal for abolition of post but it had not been abolished but converted E
into the post of Assistant Secretary.

Single Judge of High Court after hearing both the parties reserved
its judgment. Before the pronouncement of judgment, Government of
India (GOI) issued a letter dated 17.6.1999 directing the council to issue
order of abolition· of post of Inspector. GOI in terms of office F
memorandum dated 3.5.1993, declared that post of inspector stood
abolished.

Single Judge held that affirmation of termination was passed without
taking note of the fact that Writ Petition was pending. Single Judge also
opined that having regard to the fact that post of Inspector which was G
statutory post was abolished, consequent relief of reinstatement cannot be
granted. However, it gave liberty to respondent to challenge the order
dated 17.6.1999.

• 547 H
A
548 SUPREME COURT REPORTS 120061 2 S.C.R.

Respondent filed LPA against the said judgment which was dismissed
'
I

holding that it would be open for her to file a fresh petition challenging
order of abolition. In view of this observation, respondent filed another
writ petition before High Court which was allowed by Single Judge holding
that termination of respondent was mala fide. On appeal, Division Bench
B dismissed the appeal having regard to the finding of fact arrived at by
Single Judge. Hence the present appeal.

Union of India contended that it was not apprised that Writ Petition
was pending and that the Council had merely informed that the post was
lying vacant for more than one year.

c Allowing the appeal, the Court

HELD: I. The Division Bench of the High Court was right in saying
that in the facts and circumstances of this case it was not necessary for it
to go into the question as to whether the post or Inspector carries a
D statutory status or not. (554-Fl

2. It is neither denied nor disputed that the post of Inspector is an
essential one so as to enable the Council to carry out its statutory function.
He inspects the colleges only for the purpose of grant of recognition and
on the basis of the report of the Inspector alone, ~he Executive Council
E considers the proposal for grant of recognition of such institution. The
main purpose of the Council, therefore, cannot be performed in absence
of an Inspector or a person authorised to perform the said duties. In any
event, the Office Memorandum dated 3.5.1993 will have no application
in the instant case as the post was not held in abeyance. It was filled but
the services of the Respondent were terminated which was questioned by
F her by filing a writ petition before the High Court. The said writ petition
was admittedly pending. In fact, the judgment wa:> reserved. Despite the
fact that the writ petition was pending for a period of three years, why t
the Government of India was approached for the purpose of obtaining a
direction that the post stood abolished is not known. Even in view of the
G findings of fact recorded by the High Court, the concerned authority took
recourse to suppressio veri and suggestio falsi. It had not been disclosed
that a writ petition was pending. [555-C-GI

3. It is furthermore not in dispute that after the judgment of the High ;
Court, the Respondent has been reinstated. Whether the post had been
H revived before such reinstatement again has not been disclosed. It is,
U.0.1. v. MAL Tl SHARMA [SINHA. J.) 549
therefore, evident that the Appellant No. 2 tried to overreach the court. A
Its action was plainly ma/a fide both on facts as well as in law.
(555-G-H; 556-A(

Union of India Through Govt. of Pondicherry and Anr. v. V.
Ramakrishnan and Ors., (2005) 8 SCC 394, referred to.
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1053 of2004.

From the Final Judgment and Order dated 2.9.2003 of the Delhi High
Court in L.P.A. No. 112 of 2003.

V.S.R. Krishna, Yash Pal Dhingra for the Appellant c
Sunil Gupta, Pramod Dayal, Yivek Vishnoi and Pranab Kalra for the
Respondents.

The Judgment 6f the Court was delivered by
D
S.B. SINHA, J. The Appellant No. 2 herein is a statutory body
constituted under the Nursing Council Act (for short "the Act"). It exercises
statutory powers. Section 13 of the Act reads as under:

"13. Inspections :- (!) The Executive Committee may appoint such
number of inspectors whether from among members of the Council E
or otherwise, as it deems necessary to inspect any institution recognised
as a training institution, and to attend examinations held for the purpose
of granting any recognised qualification or recognised higher
qualification.

(2) Inspectors appointed under this section shall report to the Executive F
Committee on the suitability of the institution for the purposes of
training and on the adequacy of the training therein, or as the case
may be on the sufficiency of the examinations.

(3) The Executive Committee shall forward a copy of such report to
the authority or institution concerned, and shall also forward copies G
with the remarks, if any, of the authority or institution concerned
thereon to the Central Government and to the State Government and
State Council of the State in which the authority or institution is
situated."

Five posts of Zonal Inspector were created by the Executive Council in H
550 SUPREME COURT REPORTS [2006] 2 S.C.R.

A tenns of a Resolution dated 22.2.1965. The Appellant No. I herein was
approached by the Appellant No. 2 for creation of five pennanent posts of
Inspector but only one regular post of lnspt:ctor was sanctioned. The
Respondent herein was appointed as an lnspe,:tor on an adhoc basis on
1.6.1992. The was later on selected on a regular basis. Her selection was
approved by the General Body of the Council in the year 1994. She was put
B on probation for a period of two years. On 3.4. 1996, she was asked to submit
a self-appraisal report. However, without waitiPg for the receipt thereof,
recommendation was made on or about 8.4.1996 by the Departmental
Promotion Committee that her services might not be confinned. On 9.4.1996,
the Respondent submitted her self-appraisal report. On the same day, her
C services were tenninated with immediate effect by an order of the President
of the Council although admittedly the Executive Council alone had
jurisdiction in r~lation thereto. A writ petition was filed by the Respondent
questioning the said order of tennination dated 9.4. I 996. Only during pendency
of the said writ petition, the Executive Commi~ee ratified the order passed
by the President of the Council dated 8.5.1996 which was in tum ratified by
D the General Body on 5.7. I 996. An affidavit wa~ filed by the Appellant herein
stating:

(i) the post of Inspector to which the r~spondent was appointed was
created not under S. 13 but under S. 8(2) (d) of the INC Act,
1947;
E
(ii) on 08.04.96 the said post was proposed to be abolished by the
EC. How~ver, the post has not been abolished but has been
converted \nto post of Assistant Secretary (Nursing) in the same
pay scale as Inspector (Rs. 2000-3500); and
F (iii) the necessary sanction/ approval from GO! is awaited for filling
the said post of Assistant Secretary (Nursing).

From the said affidavit, therefore, it would appear that merely
nomenclature of the post of Inspector had been changed to that of Assistant
Secretary. In support of the said allegation, no record was produced. The
G learned Single Judge of Delhi High Court upon hearing the parties reserved
its judgment on 16.2.1998.

Before the judgment could be pronounced, the Government of India
issued a letter dated 17th June, I999 directing the Council to issue order of
abolition of the post of inspector in the following tenns:
H
U.0.l. v. MALT! SHARMA [SINHA, J.] 551
"The undersigned is directed to enclose a copy of the statement A
regarding vacant posts in your organization. The posts mentioned in
the statement were lying vacant for more than one year as per
communication received from your office and as such are deemed
abolished as per instructions of Ministry of Finance.

It is requested that formal orders of abolition may be issued in respect B
of the vacant posts which are deemed abolished and a report sent to
this Ministry, urgently."

The Government of India purported to be on the basis of a
communication sent by the Council to it in terms of its letter dated 17 .6.1999
declaring the post of Inspector could have been abolished in terms of Office C
Memorandum bearing No. 7(1)-E.(Coord)/93 dated 3rd May, 1993 the relevant
clause whereof is as under:

"Points Clarifications

If a post is held in abeyance
D
b. If a post is vacant or held in
abeyance for some time, whether or remains unfilled for a period of
the post can be filled up or revived one year or more, it would be
as the case may be, by the deemed to be abolished. Integrated
administrative Department/ Finance of each Ministry/
Ministry. Department may monitor abolition E
of such posts and ensure that
abolition orders are issued within
one month of the post remaining
unfilled/ held in abeyance for the
period of one year. If the post is
required subsequently, the F
prescribed procedure for creation of
new posts will have to be followed,
i.e., as briefly set out below"
The learned Single. Judge. by a well considered judgment held :
G
(i) "In the light of the facts as stated in the writ petition, the motive
of the respondent, however, becomes apparent from the fact that
the memorandum dated 22nd May 1995 rejecting the application
for ex post facto sanction of leave sent by the petitioner on 2oth
April 1994 was issued almost one year after the petitioner's
application." H
.'
i
\
552 SUPREME COURT REPORTS [2006] 2 S.C.R.

A (ii) "The approval of the DPC is of no material significance in view
of the hasty action taken by the DPC even without waiting for
the self appraisal report of the petitioner."

(iii) "No dates were given to the petitioner's absence nor any
unsatisfactory nature of the petitioner's misconduct or
B misbehaviour has been set out. Thus this makes it clear that in
the guise of simple termination of the services of the petitioner,
in fact punitive action has been taken against the petiti1>ner.
Significantly even the General Body Meeting of 5th July 1996
was apprised of the filing of the writ petition by the petitioner
and that the same meeting sought to affirm the termination of
c services of the petitioner by the President. The meeting could as
well have deferred this issue in view of the pendency of the writ
petition."

(iv) "This order has obviously been passed without taking note of the
fact that the writ petition was pending in this Court challenging
D the order of termination dated 9th April 1996 subsequent to which
the post is said to have been lying vacant."

The learned Judge also opined that in view of the findings recorded
therein, the Respondent would have been entitled to consequent relief of
reinstatement but having regard to the fact that the post of Inspector which
E was a statutory post was abolished, directed:

"As the position stands today, the post has been abolished and the
consequent relief of re:instatement cannot be granted. However, it
would be open to the petitioner to take such steps in law in respect
of abolition of the post by the order dated 17th June 1999 as she may
F be advised. Nothing stated in this judgment would have any bearing
on the legality and validity of the aforesaid abolition of the said post
of the Inspector by the order dated 17th June 1999."

No appeal having been preferred thereagainst by the Appellant herein,
G the same attained finality. The Respondent filed a Letters Patent Appeal
against the said judgment and order which was dismissed by an order dated
14.09.2000 holding that it would be open for her to file a fresh petition
challenging the order of abolition dated 17.6.1999.

In view of the aforementioned observations, another writ petition marked
H as CW 1162 of 2002 was filed by the Respondent before the Delhi High
U.0.1. v. MALT! SHARMA [SINHA. J.] 553

Court. The said writ petition was allowed by a learned Single Judge inter alia A
! opining that the post of Inspector is a statutory post. It was further observed
that the judgment and order dated 22nd November, 1999 passed in CWP No.
1582 of 1996 attained finality stating :

"Therefore, the said post is statutory and could not have been abolished
by the respondents. Knowing fully well that the challenge to the B
termination of the services from the said statutory post was pending
disposal before this Court, a wrong statement was made to respondent
no. I by respondent no.2 that the post is lying vacant, the same was
not a proper representation of the statement of fact by respondent
no.2 to respondent no. I. Mr. Bhushan had clearly stated that it was C
not brought to the notice of Union of India that any petition by the
holder of said post was pending in the High Court. For the simple
reason that the post was a statutory post, the same was not lying
vacant as the vacancy was created by respondent no.2 and was being
challenged by the petitioner who got her writ petition allowed but for
the said abolition of the post, got the prayer of the re-instatement but D
could not be reinstated. I do not find any merit in the contention of
respondent no.2 that the post was not statutory. As respondents have
not challenged the findings of CWP No.1582/96, that has become
final. Respondents cannot be permitted to challenge the same. The'
whole exercise was mala fide and to deprive the petitioner of her E
rightful re-instatement."

In the Letters Patent Appeal filed by the Appellant, the main contention
raised on behalf of the Appellant was that it had wrongly been held that the
post of an Inspector is a statutory post. The Division Bench, however, without
going into the aforementioned question dismissed the appeal having regard F
to the finding of fact arrived at by the learned Single Judge.

Mr. V.S.R. Krishna, learned counsel appearing on behalf of the Appellant
would contend that a statutory post carries a distinct meaning as it must be
a post which the statute itself provides for by l~ying down the conditions of
service as also qualification, duties and functions attached thereto. Thus, only G
because Section 13 speaks of posts of Inspector and provides for certain
duties, the post shall not become a statutory one. It was urged that there was
no reason for the Appellant to question the earlier decision as it was not only
~ _ held that the post had been abolished, no opinion was expressed as regard the
legality or validity of the direction of the Central Government. It was further ti .
554 SUPREME COURT REPORTS (20061 2 S.C.R.

A submitted that the Appellant declared the post having been abolished in view
of the legal fiction created under the Office Memorandum dated 3rd May, f
1993 and in view of the admitted fact that the post had been lying vacant for
more than one year, the abolition took place of its own.

Mr. Sunil Gupta, learned senior counsel appearing on behalf of the
B Respondent, on the other hand, would submit that the fact of the matter is
replete with unreasonable attitude and malafide act on the part of the authorities
of the Respondent. In particular, the learned counsel drew our attention to the
following statements made in the writ petition :

"The grievance of the petitioner arises on account of her plea that the
c action against the petitioner is mala fide and has been taken at the
behest of one Shri R.N. Singh, who was at one time the member of
the Executive Committee and who was inimical to the petitioner
because of the adverse entries made by the petitioner during an
inspection of an institute at Madhurai in January 1995, which institute
D was sponsored by the said Shri R.N. Singh. It is the petitioner's case
that due to the adverse reports by her in respect of the said Institute
sponsored by Shri Singh, he started creating trouble for the petitioner
in the Nursing Council and started entertaining frivolous complaint
against the petitioner. In this view of the matter the petitioner contended
that the terminadon of her services were punitive in nature and the
E President of the Council could not have taken the impugned action
and the subsequc:nt ratification by the Executive Council, particularly,
when Shri R.N. Singh was associated with the Executive Council's
decision could not have been upheld and was tainted with ulterior
motives and ma/afide."
F We agree with the Division Bench of the High Court that in the facts
and circumstances of this case it was not necessary for it to go into the
question as to whether the post of Inspector carries a statutory status or not.

It has been found by the learned Single Judge of the Delhi High Court
G that the service of the Respondent was terminated mala fide. The learned
Single Judge also commented upon the conduct of the authorities of the
Appellant Council. It was observed therein that the post was declared to be
abolished mala fide. Apart from that, as noticed hereinbefore, the nomenclature
of the post was changed during pendency of the writ petition.

H The learned counsel appearing on behalf of the Union of In~ia, as
,
U.0.1. v. MAL Tl SHARMA [SINHA. J.) 555
noticed herein before, categorically stated that ~t was not apprised that a writ A
petition was pending. An Officer of the Appellant No. 2- Council merely
brought it to the notice of the Government that the post was lying vacant for
more than one year. It might not have even been disclosed to the competent
authority of the Central Government that name of the post had been changed
and the said post had been filled up. It has also not been shown before us that
in relation to day to day affairs of the Council, the Union of India had a
B
statutory power to intervene. It may be that it has the power of granting
approval as regard creation of post by the Executive Committee but in absence
,J,
of any statutory power in this behalf, evidently it could not issue a direction
which would be binding upon the Council. Nothing has been brought on
records to show as to how the said Office Memorandum dated 3rd May, 1993 c
would apply in the case of the officers of the Council.

In any event, out of five posts only one post was sanctioned by the
Government oflndia. It is neither denied nor disputed that the post oflnspector
is an essential on~ so as to enable the Council to carry out its statutory
function. The !ear ed Single Judge has clearly indicated that the Inspector D
plays an important role in the Council. He inspects the colleges only for the
4
purpos~ of grant of recognition and on the basis of the report of the Inspector
alone, the Executive Council considers the proposal for grant of recognition
of }uch _institution. The main purpose. of the Council, therefore, cannot be
performed in absence of an Inspector or a person authorised to perform the
E
said duties. In any event, the aforementioned Office Memorandum dated 3rd
May, 1993 will have no application in fl}e instant case as the post was not
held in abeyance. It was mred bu_!. the services of the Respondent were
term.inated which was questioned by her by filing a writ petition before the
High. Court. The said writ petition was admittedly pending. In fact, the
...._ judgment was reserved. Despite tire fact that the writ petition was pending for F
I a period of three years, as to why the Government of India was approached
for the purpose of obtaining a direction that the post stood abolished is not
.··,'-···· knowrCEven in view of the findings of fact recorded by the High Court, the
concerned authority took recourse to suppressio veri and suggestio falsi. It
had not been disclosed that a writ petition was pending.
G
. It is furthermore not in dispute that after the judgment of the High
• ~
tourt pronouncement the Respondent has been reinstated. Whether the post
had been revived before such reinstatement again has not ~een disclosed.

It is, therefore, evident that the Appellant No. 2 tried to overreach the
H
556 SUPREME COURT REPORTS [2006] 2 S.C.R.

A court. Its action was plainly mala fide.both on facts as well as in law.
Jn Union of India Through Govt. of Pondicherry and Anr. v. V.
Ramakrishnan and Ors., [2005) 8 SCC 394, this Court observed:

"But, even where the tenure is not specified, an order of reversion
B can be questioned when the same is mala fide. An action taken in a
post haste manner also indicates malice. [See Bahadursinh lakhubhai
Gohi/ v. Jagdishbhai M. Kamalia and Ors.. (2004] 2 SCC 65, para
25]"

For the foregoing re:asons, we are of the opinion that no case has been
C made out for our interference with the impugned judgment. The appeal is
dismissed with costs. Thi: Counsel's fee assessed at Rs. 5000.00.

D.G. Appeal allowed.

t