State Election Commission ... vs Brij Kumar And Ors.
2013 Latest Caselaw 5121 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature At Allahabad
 
Lucknow Bench, Lucknow
 
******************
 
Reserved
 

 
(1) SPECIAL APPEAL No. - 463 (D) of 2013
 

 
Appellant :- State Election Commission U.P.Lko.Thro.State Election & Ors.
 
Respondent :- Brij Kumar And Ors.
 
Counsel for Appellant :- Anupam Mehrotra,Aprajita Bansal,N.S.Chauhan
 
Counsel for Respondent :- C.S.C.,U.N.Misra
 

 
Along With
 

 
(2) SPECIAL APPEAL No. - 471 (D) of 2013
 

 
Appellant :- State Election Commission U.P.Lko.And 2 Ors. 3246(S/S)2004
 
Respondent :- Alok Kumar Sahu And 9 Ors.
 
Counsel for Appellant :- Anupam Mehrotra,Aprajita Bansal,N.S.Chauhan
 
Counsel for Respondent :- C.S.C.,U.N.Misra
 

 
(3) SPECIAL APPEAL No. - 472 (D) of 2013
 

 
Appellant :- State Election Commission U.P.Lko.And 2 Ors. 3271(S/S)2004
 
Respondent :- Shiv Kumar Tewari And 22 Ors.
 
Counsel for Appellant :- Anupam Mehrotra,Aprajita Bansal,N.S.Chauhan
 
Counsel for Respondent :- C.S.C.,Gyanendra Kumar Pandy
 

 
(4) SPECIAL APPEAL No. - 473 (D) of 2013
 

 
Appellant :- State Election Commission U.P.Lko.And 2 Ors. 3261(S/S)2004
 
Respondent :- Shiv Bahadur Yadav And 4 Ors.
 
Counsel for Appellant :- Anupam Mehrotra
 
Counsel for Respondent :- Raghvendra Kumar Singh
 

 

 
(5) SPECIAL APPEAL No. - 474 (D) of 2013
 

 
Appellant :- State Election Commission U.P.Lko.And 2 Ors. 3244(S/S)2004
 
Respondent :- Brij Mohan Gautam And Another
 
Counsel for Appellant :- Anupam Mehrotra,Aprajita Bansal,N.S.Chauhan
 
Counsel for Respondent :- C.S.C.
 

 
AND
 

 
(6) SPECIAL APPEAL No. - 475 (D) of 2013
 

 
Appellant :- State Election Commission U.P.Lko.And 2 Ors. 3149(S/S)2004
 
Respondent :- Satish Chandra And 2 Ors.
 
Counsel for Appellant :- Anupam Mehrotra,Aprajita Bansal,N.S.Chauhan
 
Counsel for Respondent :- C.S.C.
 
**********************
 
Hon'ble Uma Nath Singh,J.

Hon'ble Ritu Raj Awasthi,J.

(Delivered by Hon. Ritu Raj Awasthi, J.)

As there is no objection from the respondents to the applications for condonation of delay, being allowed, they are hereby allowed and the period of delay as pointed out by the Registry is, thus, condoned.

Since all the aforesaid special appeals arise out of the same judgment and order and having similar facts & circumstances of the case, as such, they were connected and heard together and are now being decided by the common judgment.

For convenience the pleadings made in Special Appeal No. 463 (D) of 2013; State Election Commission, U.P., Lucknow & Others Vs. Brij Kumar and Others and Writ Petition No. 3052 (SS) of 2004; Brij Kumar and Others Vs. State of U.P. and Others have been considered by us while deciding the special appeals.

We have heard Mr. Anil Kumar Tiwari, learned Senior Advocated assisted by Ms. Aprajita Bansal, learned counsel for appellants, learned Standing Counsel for the State and Mr. Upendra Nath Mishra, learned counsel for private-respondents and perused the pleadings of special appeals.

These intra Court appeals arise out of the judgment and order dated 14.6.2013 passed in Writ Petition No. 3052 (SS) of 2004; Brij Kumar and Others Vs. State of U.P. and Others and other connected writ petitions.

The factual matrix as borne out from the record of appeals are that the respondents-petitioners were initially engaged on class IV posts on daily wage basis/consolidated pay in the office of State Election Commission, U.P. (for short 'the Commission')/appellants during the period 1994 to 2001. They remained associated with various elections held by the Commission. Since a large number of substantive vacancies of class IV posts were lying vacant in the Commission, the Secretary of the Commission issued a circular letter dated 23.3.1996 mentioning therein that the existing posts of class IV shall be filled up from amongst such employees who have earlier worked as daily wagers/contract basis in the Commission during previous elections.

In November, 1997, a ban was imposed on fresh recruitment by the State Government, however, on 30.1.2001 a notification was issued by the State Government laying down the procedure for recruitment on Group 'D' posts in the Commission. By this notification the Secretary of the Commission was made the appointing authority and the selection on Class IV posts were to be made on the basis of recommendation of duly constituted selection committee.

Consequent to this notification, the appointing authority issued a circular on 15.6.2001 inviting applications from the persons who had working experience on class IV posts in the Commission. The persons were to be appointed on contract basis, in view of existing ban on regular appointment by the State Government.

Respondents-petitioners having working experience had applied for appointment on Group 'D' posts. On 30.6.2001, the appointing authority constituted two selection committees. The said committees held interviews in which respondents-petitioners appeared. On 23.7.2001 the appointment orders were issued by the appointing authority indicating the terms of appointment of respondents-petitioners.

In the appointment letter, it was mentioned that since a ban has been imposed by the State Government on direct recruitment, therefore, the appointments are being given on contract basis on a consolidated pay and as soon as the said ban is lifted by the State Government, the appointment will be made on the existing class IV vacancies.

On 15.1.2004 the ban on all kinds of fresh recruitment was lifted by the State Government. Thereafter, the respondents-petitioners made representation dated 16.4.2004 to the Head of the Department/Chairman of the Commission for issuance of regular appointment orders. However, the appointing authority by orders dated 26.5.2004 cancelled the appointment of respondents-petitioners. The respondents-petitioners, feeling aggrieved, challenged the orders of cancellation by filing various petitions praying for following reliefs:

(i)to issue a writ, order or direction in the nature of Certiorari quashing the impugned orders dated 26.5.2004, passed by the Respondent No. 4, as are collectively contained in Annexure No. 1 to this Writ Petition;

(ii)to issue a writ, order or direction in the nature of Mandamus commanding the Respondents not to give effect to the impugned orders dated 26.5.2004, passed by the Respondent No. 4 referring cancellation of appointment orders of the Petitioners dated 23.7.2001 passed by the Appointing Authority himself i.e. Respondent No. 4 (as are collectively contained in Annexure No. 1 to this writ Petition);

(iii)to issue a writ, order or direction in the nature of Mandamus commanding the Respondents to allow the petitioners to work on Class-IV posts of Peon in the office of State Election Commission, U.P., Lucknow as before and to pay them salaries and other consequential benefits;

(iv)to issue any other writ, order or direction which this Hon'ble Court may deem just and proper in circumstances of the case;

(v)to allow this writ petition with all costs in favour of the petitioners.

The main contention of respondents-petitioners were as follows:

(a) no show cause notice or opportunity of hearing was given before cancelling their appointment orders, therefore, the impugned cancellation orders are violative of principles of natural justice;

(b) cancellation of appointments made after several years of working that too on the basis of alleged procedural mistake without having any valid or cogent reason is not permissible.

In paragraph 31 of Writ Petition No. 3052 (SS) of 2004; Brij Mohan and Others Vs. State of U.P. and Others it was submitted that since an assurance, as mentioned in the appointment orders dated 23.7.2001 that the petitioners would be appointed on regular class IV post, after lifting of ban, was given the petitioners have legitimate expectation of continuance on class IV post held by them. The appointing authority is estopped from taking away the said vested rights of the petitioners. The appointment orders of the petitioners were issued after following the prescribed procedure and for all practical purposes the said appointments were regular appointment, but on account of prevailing ban on fresh recruitment, the regular appointment orders could not be issued at that time. Now, on lifting of ban by the State Government, the petitioners are fully entitle to get regular appointment and the termination of their services by the impugned orders is not sustainable in the eyes of law. Paragraph 31 of the writ petition on reproduction reads as under:

"31. That since the Respondent No. 4 had given an assurance as mentioned in the appointment orders dated 23.7.2001 that petitioners shall be appointed on regular Class-IV posts, after lifting of ban imposed by the State Government on fresh recruitment, therefore, the petitioners have legitimate expectation of continuance on Class-IV posts held by them. At this score also, the impugned orders cancelling the appointment orders is illegal and unreasonable, as the Respondent No. 4 i.e. the Appointing Authority is estopped from taking away the said vested rights of the petitioners. The appointment orders of the petitioners dated 23.7.2001 were made after following the prescribed procedure and for all practical purposes, the said appointment was regular appointment, but on account of prevailing ban on fresh recruitment, the regular appointment orders could not be issued in favour of the petitioners. Now, on lifting of the ban by the State Government, the petitioners are fully entitled to get regular appointment issued by the Appointing Authority in their favour on Class-IV posts held by them and the action of the Respondents in terminating their service has consequence of cancellation of appointment orders dated 23.7.2007 by means of the impugned orders dated 26.5.2004, cannot be sustained in the eyes of law."

In the grounds of Writ Petition No. 3052 (SS) of 2004 (supra) various grounds were taken out of which Ground Nos. "K" and "M" on reproduction read as under:

"K. Because of the aforesaid assurance given by the Appointing Authority himself, the petitioners have submitted their joining on vacant Class-IV posts and they had legitimate expectation to continue on the same terms and conditions at least till the lifting of the ban on fresh recruitment and moreover after lifting of the ban, the petitioners had legitimate expectation for regular appointment on exiting class-IV posts, therefore, the Respondent No. 4 is estopped from cancelling the said appointment orders of the Petitioners.

M. Because after lifting of the ban on fresh recruitment, the Respondent No. 4 i.e. the Appointing Authority was duty bound to issue regular appointment orders in favour of the Petitioners on Class-IV posts, however, when the petitioners requested for the same through their various representations, the Respondents apparently got annoyed as a result of which, the impugned order dated 26.5.2004 was issued whereby their appointment orders dated 23.7.2001 have been cancelled with immediate effect without affording any opportunity of hearing."

The present appellants had contested the writ petitions by filing counter affidavit.

The learned Single Judge by the impugned judgment and order dated 14.6.2013 had held that the Secretary of the Commission, who is vested with power of appointment of Class-IV posts, has felt the need of having a stable team of regular staff, which can be entrusted with various activities involved in the process of election and for that purpose had thought it proper that experienced hands be grouped and their appointment may be safeguarded, hence issued a circular dated 30.6.2001 to make appointments by inviting applications only from those employees who had already worked with the department from time to time. He had not appointed any rank outsider through any back door entry. Reasonable classification on the basis of experience will be wholly permissible in the circumstances of the case, if sufficient number of experienced persons are available and willing to offer their services. It will be violative of principles of rule of law by equating the equals with the unequals.

It was also held by the learned Single Jude that the Committee constituted for holding the selections of respondents-petitioners was property constituted. It was also held that in case no tenure was mentioned in the service contract of respondents-petitioners, it does not vitiates the contract. In case the contract is terminable in the event of a particular incident likely to happen in future, it cannot be said that the agreement was eternal. The agreement clearly mentions that it will come to an end as soon as the ban is lifted. It has been made determinable on the happening of a certain event. The term of the contract has, thus, become determinable.

It has also been held by the learned Single Judge that there is no case of malafide or any bungling in the selection process and thee is no allegation of corruption, bribe or unfair selection. No candidate has come forward with any case of malpractice being adopted in the selection. The State Government itself allowed these persons to continue for more than three years. Naturally, the experience of these people, with the passage of time, must have enhanced. To throw them out and bring in raw hand in the institution, which is very sensitive and needs well oiled machinery to cope with the process of election, will not be justified. The Court has taken note of the fact that the respondents-petitioners have continued to work on the strength of interim order granted in their favour during pendency of writ petitions.

In this background, as mentioned above, Mr. Anil Kumar Tiwari, learned Senior Advocate appearing for the appellants very fairly submitted that he does not want to challenge the observations made with respect to appointment, selection process, etc., as observed by the learned Single Judge in the impugned judgment. The only ground on which he wants to challenge the impugned judgment is that the writ Court has travelled beyond the scope of writ petitions while directing the present appellants to issue necessary orders for treating the respondents-petitioners in regular service in pursuance of selection held in July, 2001 and in continuance of respondents-petitioners' appointment order dated 23.7.2001. The writ Court has wrongly allowed all consequential benefits of regular appointment on Class-IV posts to the respondents-petitioners.

Submission is that the learned Single Judge has granted the relief which was not even prayed for. A party cannot be granted a relief which has not been claimed.

It is submitted that in the case of Bharat Amratlal Kothari and Another Vs. Dosukhan Samadhan Sindhi and Others; (2010) 1 SCC 234, the Apex Court has observed that the approach of the High Court in granting relief not prayed for cannot be approved. Relevant paragraphs 29 and 30 of the judgment on reproduction read as under:

"29. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled to or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the Court, to sue for any particular relief which he is entitled to get, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished.

30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the Court. Normally, the Court will grant only those reliefs specifically prayed for by the petitioner. Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."

It is also submitted that the Apex Court in the case of Rhone-Poulenc (India) Ltd. Vs. State of U.P. & Others; (2000) 7 SCC 675 has held that interference beyond the subject matter of writ petition is impermissible. Relevant paragraph 7 of the judgment on reproduction reads as under:

"The High Court has also held that respondent no. 3 is entitled to the same amount of salary/arrears of salary after he was reinstated by the award of the Labour Court which his counterparts (Medical Representatives) in the appellant company were receiving under the settlement dated 25th June, 1988 and has further held that the said settlement is applicable to the case of respondent no.3 as well and the appellant is estopped from taking the plea of its non- applicability in case of respondent no.3. Mr. Reddy contents that the aforesaid finding of the High Court deserves to be set aside. We agree. The question whether respondent no.3 is entitled or not to the benefit of settlement dated 25th June, 1988 was not the subject matter of the award which directed the reinstatement of workman in service along with consequential benefits. What consequential benefits respondent no. 3 would be entitled to was not the subject matter of the writ petitions before the High Court. According to the appellant, respondent no.3 is not entitled to the benefits under the settlement whereas respondent no.3 claims such benefits. This question may have to be adjudicated by a competent authority at an appropriate stage when the question of grant of consequential relief is raised or it is contended that full consequential reliefs in terms of the award have been denied to respondent no.3. The stage of implementation of the award had not come when the matter was pending before the High Court. The only question before the High Court was with regard to the legality of the award and the order dated 22nd September, 1993 whereby the two preliminary issues were decided by the Labour Court. In this view, we set aside the impugned judgment to the extent it directs that respondent no. 3 is entitled to the same amount of salary/arrears of salary which his counterparts are receiving under the settlement dated 25th June, 1988 as also the finding that the said settlement is applicable to respondent no.3 and that the appellant is estopped from taking the plea of its non- applicability. We leave these questions open without expressing any opinion as to the applicability or otherwise of the settlement to the case of respondent no.3 or the validity of other legal pleas including that of estoppel. It would be open to the appellant and respondent no.3 to raise such pleas as may be available to them in law at the appropriate stage and it goes without saying that the said aspects will be decided on its own merits in accordance with law."

Learned Senior Advocate has also taken us to the judgment of the Apex Court in the case of Commissioner, Bangalore Development Authority Vs. S. Vasudeva and Others; (2000) 2 SCC 439 to stress that the High Court under Article 226 of the Constitution should not travel beyond the scope of writ petition. Relevant paragraph 6 of the judgment on reproduction reads as under:

"At the outset, we are of the opinion that the High Court travelled way beyond the scope of the writ petition which was before it. The prayer in the writ petition was for quashing the out-of-turn allotments in favour of MLAs, MPs and others who were impleaded as Respondents 4 to 38 before the High Court. The further prayer was that permission which had been granted to some of these MLAs, MPs and others to transfer plots of land which had been allotted to them should also be quashed. It is pertinent to note that in this writ petition there was no challenge either to the registration of the respondent Society with BDA or to the allotment of land to the Society as such. As already noted, the challenge was to the allotment tot he 34 persons who were stated to be members of the said Society. The High Court, on the other hand, not only came to the conclusion that bulk allotment of land was not permissible but also directed the constitution of a committee to go into all allotments made by BDA. The effect of this would be that the Committee which was sought to be constituted was empowered to carry out a roving and fishing inquiry with regard to allotments of land made by BDA since the time it was constituted in the year 1976. There was neither any prayer in the writ petition to this effect nor do we find any affidavit having been filed by the respondents before the High Court in relation to such allotments of land to the Society and others. The writ petitioner had not chosen to enlarge the scope of the writ petition by amending his petition and, therefore, the High Court, in our opinion, was not justified in issuing the type of directions which it did."

Learned counsel for appellants emphasized that the High Court cannot expand the scope of writ petition and decide the matter never in issue between the parties. The Apex Court in the case of M/s J.K. Cotton Spinning and Weaving Mills, Co. Ltd. Vs. The Sales Tax Officer, Kanpur and another; Air 1965 SC 1310 in paragraph 5 has held as under:

"5. In the first instance, it must be pointed out that the High Court has, in rejecting the petition, dealt with certain matters which were never in issue between the Company and the Sales Tax Officer. By the order of the Sales Tax Officer "machinery", and "colours and chemicals" were not deleted from the certificate, and the exclusion of "building materials, cement and lime" was expressly restricted so that it was not to operate in respect of cement used in manufacturer of tiles for sale. The Sales Tax Officer had rejected the claim of the Company only in respect of drawing instruments, photographic materials, building materials including lime and cement (except cement used in manufacture of tiles for re-sale), electricals, iron, steel and coal, and it was not open to the High Court to expand the scope of the petition challenging the correctness of the order of the Sales Tax Officer, and to deal with matters which were never in issue or to decide that other categories of goods which the Sales Tax Officer had not ordered to be deleted did not fall within the terms of Section 8 (3) (b) read with Rule 13."

Mr. Upendra Nath Mishra, learned counsel for private-respondents, in his reply, submitted that the writ Court considering the entire facts and circumstances as pleaded by the parties to writ petitions has come to conclusion that the cancellation of appointments of respondents-petitioners are not sustainable in the eyes of law. Since the ban on fresh recruitment was already lifted and there was an assurance in their appointment orders dated 23.7.2001 for regular appointment to be given on the basis of selection held in July, 2001, the learned Single Judge was fully justified in issuing direction to the appointing authority for treating the respondents-petitioners' service as regular service in continuance of respondents-petitioners appointment orders dated 23.7.2001 and direct the present appellants to issue necessary orders in this regard in favour of respondents-petitioners and give them all consequential benefits of regular appointment of Class-IV post.

It is submitted that it is totally misconceived to say that the learned Single Judge has travelled beyond the scope of writ petitions to issue such directions as in the pleadings of writ petitions, particularly in paragraph 31 of Writ Petition No. 3052 (SS) of 2004 (supra), and in the grounds taken in support of the pleadings, it was specifically mentioned that the respondents-petitioners have legitimate expectation of regular appointments, hence there was a nucleus in writ petition i.e. a specific plea taken in writ petition which could result in issuance of direction to the appointing authority to issue necessary orders for treating the respondents-petitioners' service as regular service in pursuance of the appointment orders dated 23.7.2001.

It is also submitted that since the ban on fresh recruitment was already lifted and there was an assurance in their appointment letters dated 23.7.2001 for regular appointment to be given after lifting of ban, therefore, the learned Single Jude while suitably modifying the relief and for doing complete justice had directed the appointing authority i.e. Secretary of the Commission to issue necessary orders for treating the respondents-petitioners' service as regular service in continuance of the appointment orders dated 23.7.2001 and allow the writ petitioners all consequential benefits.

It is also submitted that promissory estoppel would be applicable in the present case as after the lifting of ban on recruitment by the State Government the appellants were duty bound to issue necessary orders for regular appointment of the petitioners and they were estopped from taking vested rights of respondents-petitioners.

It is submitted by learned counsel for respondents that the Court is fully empowered to mould the relief according to the circumstances of the case, if it feels necessary and proper in the interest of justice and to do complete justice to the party to a case.

The contention is that if there are sufficient pleadings with respect to the relief granted by the Court, the Court in order to do complete justice is fully empowered to mould the relief as it deems fit, just and proper in the circumstances of a given case.

In support of his submissions, learned counsel for respondents relies on the following judgments:

(1) B.C. Chaturvedi Vs. Union of India & Others; (1995) 6 SCC 749, particularly paragraphs 22 & 23 which on reproduction read as under:

"22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.

23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter."

(2) Food Corporation of India Vs. S.N. Nagarkar; (2002) 2 SCC 475, particularly paragraph 19 which on reproduction reads as under:

"19. Having regard to the facts and circumstances of the case, the Court was satisfied that the respondent was not only to be considered for promotion to the promotional posts, but was also entitled to arrears of pay and allowances since he had been deprived of those benefits not on account of any fault of his but on account of the fault of the authorities concerned. It is well settled that in exercise of writ jurisdiction, the Court may mould the relief having regard to the facts of the case and interest of justice."

(3) State of West Bengal and Another Vs. West Bengal Registration Copywriters Association and Another; (2009) 14 SCC 132, particularly paragraph 83 which on reproduction reads as under:

"83. There could be no doubt about the High Court's power to mould the relief. However, even in its plenary jurisdiction, while moulding the relief, there must be a plea to support such a relief. The relief granted by the High Court in this case is extraordinarily beyond the jurisdiction of the High Court and has no nucleus in the writ petitions or in the original applications. The basic case that was pleaded was that since the extra-muharrirs were absorbed by the Government, the writ petitioners, who were doing the task of extra-muharrirs, also had a right to be absorbed in the Government. This pleas was obviously baseless, as while extra-muharrirs were on the regular establishment of the Government, the writ petitioners were not and, therefore, they could not have claimed the parity. It is only after the reply of the Government came, denying the master-servant relationship, that the writ petitioners started singing the tune of the de facto government service in their favour."

(4) Center for PIL and Another Vs. Union of India and Another; (2011) 4 SCC 1, particularly on paragraph 53 which on reproduction reads as under:

"53. At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration. Further, as held hereinabove, recommendation of the HPC and, consequently, the appointment of Shri P.J. Thomas was in contravention of the provisions of the 2003 Act, hence, we find no merit in the submissions advanced on behalf of Respondent 2 on non-maintainability of the writ petition. If public duties are to be enforced and rights and interests are to be protected, then the court may, in furtherence of public interest, consider it necessary to inquiry into the state of affairs of the subject-matter of litigation in the interest of justice (see Ashok Lanka V. Rishi Dixit)."

(5) Rajesh Kumar & Others Vs. State of Bihar and Others; Civil Appeal Nos. 2525-2516 of 2013, particularly on paragraphs 12 and 13 which on reproduction read as under:

"12. We have in the above backdrop heard learned counsel for the parties at some length who have taken us through the impugned orders and other material placed on record. Appearing for the appellants, Mr. P.P. Rao, learned senior counsel, argued that the High Court had committed an error in quashing the entire selection process even when the petitioners had not made any prayer to that effect. Mr. Rao was at pains to argue that a relief which was not even prayed for by the writ petitioners could not be granted by the Court whatever may have been the compulsion of equity, justice and good conscience. Reliance in support of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234 and State of Orissa & Anr. v. Mamata Mohanty (2011) 3 SCC 436. There is, in our view, no merit in that contention. The reasons are not far to seek. It is true that the writ petitioners had not impleaded the selected candidates as party respondents to the case. But it is wholly incorrect to say that the relief prayed for by the petitioners could not be granted to them simply because there was no prayer for the same. The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the "Model Answer Key" which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the "Model Answer Key" was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the "Model Answer Key" to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in ''A' series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to ''A' series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.

13.The decisions of this Court in Bharat Amritlal Kothari v. Dosukhan (2010) 1 SCC 234 and State of Orissa & anr. v. Mamata Mohanty (2011) 3 SCC 436, relied upon by Mr. Rao are clearly distinguishable. The power of the Court to mould the relief, according to the demands of the situation, was never the subject matter of dispute in those cases. That power is well- recognised and is available to a writ Court to do complete justice between the parties. The first limb of the argument advanced by Mr. Rao fails and is accordingly rejected."

Mr. Upendra Nath Mishra, learned counsel for respondents further submitted that the appellants have deliberately and intentionally not brought the correct facts before the Court.

It is submitted that the contention of learned counsel for appellants that the selection held in the year 2001 was not proper and respondents-petitioners cannot be treated as regular employees as it would lead to caste imbalance in service is totally misconceived. In fact, the Commission has already balanced the reservation by appointing General, OBC, SC on class IV post while making regular selection in the year 2007 and at that time an exercise was conducted for determining the position of backlog vacancies. In that exercise all the writ petitioners who were serving on contract basis at that time were considered along with regular candidates as direct appointees of the Commission and thereafter the position of backlog was determined in which only two posts were found to be filled up from SC category candidates. A fresh selection was held in the year 2007 in which all the regular vacancies occupied by the writ petitioners were treated to be adjusted, therefore, these vacancies were not subjected to regular selection. A note-sheet containing the aforesaid facts which was given to respondents-petitioners under Right to Information Act on 26.3.2009, was brought on record by the respondents-petitioners in their writ petitions through a supplementary affidavit dated 23.7.2010, however, the said note-sheet has deliberately not been brought on record by the appellants with their special appeals, as such, there is deliberate attempt by the appellants to mislead this Court.

We have considered the submissions made by the parties' counsel and gone through the impugned judgment.

The respondents were appointed by various orders dated 23.7.2001 issued by the Secretary of the Commission on Class-IV post on contract basis on consolidated salary of Rs. 3,000/- per month. The appointment letter clearly indicates that a person who is already working on daily wages/contract basis in Group 'D' for works relating to Panchayat and Local Bodies election on the basis of interview is being appointed at the Headquarter Office against a vacant post on Class-IV. It also mentions that there is a ban for fresh recruitment on a class IV post by the State Government, therefore, the appointment is being made on contract basis at a consolidated salary of Rs. 3,000/- per month. The regular appointment in Group 'D' against vacant post would be made after lifting of ban by the State Government. Office order dated 23.7.2001 relating to appointment of one of the respondents, namely, Brij Kumar is reproduced below:

"jkT; fuokZpu vk;ksx] mRrj izns'k

iapk;r ,oa LFkkuh; fudk;

23&lh] xks[kys ekxZ] y[kum&226001

la[;k& [email protected]&[email protected] y[kum%fnukad 23 tqykbZ] 2001

dk;kZy;&Kki

jkT; fuokZpu vk;ksx] m0iz0 eq[;ky; esa nSfud [email protected] ij lewg ^?k* ds deZpkjh ds :i esa iapk;r ,oa ukxj fudk;ksa ds lkekU; fuokZpu esa dk;Z dj pqds Jh c`t dqekj [email protected][email protected] Lo0 Jh 'kEHkw izlkn dks vk;ksx }kjk fy, x;s lk{kkRdkj ds vk/kkj ij p;uksijkUr vk;ksx eq[;ky; esa prqFkZ Js.kh ds fjDr in ds fo:) rSukr fd;k tkrk gSA

2- pwWfd lewg ^?k* ds inksa ij ubZ fu;qfDr fd, tkus ij 'kklu }kjk izfrcU/k yx;k x;k gS blfy;s Jh c`t dqekj] dks lafonk ds v/kkj ij :0 3][email protected]& izfrekg lagr osru ij mDr in ij rSukr fd;k tkrk gSA 'kklu }kjk mDr izfrcU/k gVk;s tkus ij budh fu;qfDr lewg ^?k* ds fjDr in ij dh tk ldsxhA

3- Jh c`t dqekj] dks funsZf'kr fd;k tkrk gS fd ;fn og mDr vk/kkj ij lsok djus ds bPNqD gksa rks og fnukad 08 vxLr] 2001 rd ;ksxnku jkT; fuokZpu vk;ksx] m0iz0] y[kum] esa izLrqr djsaA

vt; flag

lfpoA

Jh c`t dqekj

iq=& Lo0 Jh 'kEHkw izlkn]

xzke& x iksLV& efygkckn]

y[kumA

la[;k&1286 1 @jk0fu0vk0vuq0&[email protected] rn~ fnukad

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izf"kr%&

1- foRr ,oa ys[kkf/kdkjh] jkT; fuokZpu vk;ksx] m0iz0] y[kuyA

2- vf/k"Bku lgk;[email protected];fDrxr i=koyhA

3- xkMZ QkbyA

vt; flag

lfpoA"

Similar appointment letters were issued to all the respondents.

From the aforesaid appointment letter, it is very much clear that it was stipulated in the appointment letter itself that the regular appointment would be given against a vacant post in Group 'D' after lifting of ban by the State Government. The respondents-petitioners in pursuance of their appointment letters/orders had joined and had worked with the appellants continuously till 2004 when by the impugned orders dated 26.5.2004 their appointments were cancelled.

It is to be noted that in January, 2004 the ban on all kinds of recruitment was lifted by the State Government. The respondents-petitioners, thereafter, had moved representation dated 16.4.2004 seeking regular appointment on the basis of selection held in July, 2001, however, instead of giving regular appointment to the respondents-petitioners, the Secretary of the Commission had cancelled their appointment vide order dated 26.5.2004.

It appears that the appointment of respondents-petitioners was cancelled on the ground that in the said appointments the prescribed procedure including reservation rules were not properly followed and the period of service contract was not prescribed.

The learned Single Judge while considering the validity of the cancellation of appointment orders has observed that there was no defect in constitution of the selection committees. The selection committees were constituted by the appointing authority himself and all the appointment orders were also issued by the appointing authority. It was also held by the learned Single Judge that the decision of the appointing authority to make selection from experienced hands was valid. The intention and action of appointing authority was justified. There was no violation of Article 14 and 16 of the Constitution of India. Classification on the basis of experience was perfectly reasonable and permissible even in law. The effect of the ban imposed by the State Government on appointment made in the Commission was not applicable as the Commission is an autonomous body. It was also held by the learned Single Judge that the tenure of contract was determinable on the happening of event i.e. lifting of ban, thus the service contract of the respondents-petitioners cannot be said to be bad.

The respondents-petitioners were allowed to continue to work after the said selection in the year 2001 till 2004 when impugned cancellation of their appointment was issued. In case there was any procedural defect, as alleged, the respondents-petitioners should not have been allowed to work so long. It is difficult to understand why appellants waited for the ban of regular appointment lift by the State Government and thereafter cancel the appointment of respondents-petitioners when they had acquired vested rights to claim regular appointment.

It is to be observed that the present special appeals have not been filed by the State but by the State Election Commission, although the learned Single Judge, in the impugned judgment, had upheld the procedure adopted for appointment by the respondents-petitioners as just and proper.

We are of the view that in case the nucleus of the pleadings includes the relief granted by the Court, it cannot be said that while granting the said relief the Court has travelled beyond the scope of writ petition and has granted the relief which has not been prayed. In the given facts and circumstances of a particular case, the Court while exercising its power under Article 226 of the Constitution of India is fully empowered to mould the relief to do complete justice to the parties and for that purpose it cannot be said that the Court has no power to grant the relief which has not been specifically prayed.

We are also of the view that the findings arrived at by the learned Single Judge are just and proper and do not call for any interference by us.

From the pleadings made in the writ petitions and the various grounds taken to challenge the orders of cancellation of appointment, it is very much clear that the nucleus of pleadings clearly covers the relief of giving direction for regular appointment to respondents-petitioners.

In this view of the matter, the appellants shall consider and pass necessary orders for regular appointment of respondents-petitioners on the basis of selection held in July, 2001, considering the condition stipulated in this regard in the appointment orders dated 23.7.2001 of the respondents-petitioners.

The respondents-petitioners shall be entitle to such regular appointment and all consequential benefits from the year 2004 when the ban on regular appointment was lifted by the State Government. The directions issued by the learned Single Judge in this regard stand modified to this extent. The orders of cancellation of appointment of respondents-petitioners shall stand quashed as per the judgment of the learned Single Judge.

With the aforesaid observations, the special appeals are disposed of.

[Ritu Raj Awasthi, J.] [Uma Nath Singh, J.]

Dated: 20th August, 2013

Santosh/-