Bombay High Court
State Of Maharashtra & Anr vs Sachin S. Hundekari on 29 October, 2010
Bench: Ranjana Desai, R. S. Dalvi
1 RPT.(ST).11490/10-WP.7955/06
mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
REVIEW PETITION (ST) NO.11490 OF 2010
IN
WRIT PETITION NO.7955 OF 2006
State of Maharashtra & Anr. ...Applicants/Petitioners
Vs.
Sachin S. Hundekari ...Respondent
Mr. V.A. Gangal, Sr. Counsel a/w. Mrs. M.P. Thakur
and Mr. Ashok Gade, Advocates for Petitioner
Mr. S.S. Patwardhan, Advocate for Respondent
CORAM: SMT. RANJANA DESAI &
SMT. ROSHAN DALVI, JJ.
Date of Reserving for Judgment: 11th October 2010
Date of Pronouncement of Judgment: 29th October 2010.
JUDGMENT (PER SMT. ROSHAN DALVI, J)
1. The only question to be determined in this Petition is essentially a
question of law relating to the effect of a concession granted by Counsel
on behalf of a party to Court which is not in accordance with law.
2. The Respondent is the grandson of a Freedom Fighter who was
honoured under the Freedom Fighter scheme launched by the Union of
2 RPT.(ST).11490/10-WP.7955/06
India. The widow of the Freedom Fighter who is the Respondent's
grandmother nominated the Respondent for Government service.
3. The Respondent made an application for service. An inquiry report was
called for. The inquiry report shows that the Respondent was dependent
on the said widow, his grandmother. His grandmother had expired by
then. The Respondent's application was rejected for nomination for
Government service.
4. The Respondent filed the above Writ Petition challenging the order of the
Petitioner herein dated 7th June 2005.
5. When the Petition came up for hearing the then Associate Advocate
General representing the Government, being the Petitioner herein,
submitted that in view of the peculiar facts of the case in which the
rejection by the Government was hyper technical, the Government may
be directed to provide appropriate employment to the Respondent
herein. Consequently, the order dated 7th June 2005 impugned in the
above Writ Petition was set aside by this Court and the Petitioner herein
was directed to absorb the Respondent in any appropriate post on the
basis of the nomination of his grandmother.
6. The Petitioner has sought review of the said order on the ground that
that order could not have been passed since the requisites for
appointment upon such nomination were not complied. It is contended
by the Petitioner that the Employment Exchange was not intimated, the
3 RPT.(ST).11490/10-WP.7955/06
newspaper advertisements were not given and consequently the circular
of the Government dated 19th November 2003 for appointment of the
Respondent herein was not complied and in the absence thereof the
Respondent could not have been employed despite the nomination.
7. It is essentially contended by the Petitioner that the requisite concession
of the Counsel on law does not bind the Petitioner.
8. This is settled law. In the case of Uptron India Ltd. Vs. Shammi Bhan
& Anr. (1998) 6 SCC 538 this proposition of law has been specifically
set out. In that case the provision of a Standing Order for automatic
termination of services of an employee came up for consideration. The
issue was settled in an earlier precedent by the Apex Court. The Counsel
did not contest the point. It was contended that it was permissible in law
to make provision in the Standing Orders for automatic termination.
Rejecting that contention it was held that it cannot be treated as a
finding in view of the wrong concession by Counsel at that question of
law. Such a concession cannot constitute a just ground for a binding
precedent.
9. Following this case it was held in the case of Central Council For
Research in Ayurveda & Siddha and Anr. Vs. Dr. K. Santhakumari
(2001) 5 SCC 60 that since a wrong concession or admission on a
question of law made before the Court by Counsel is not binding on his
client, the opposite party cannot seek benefit on the basis of such
concession. That was the case of promotion to a selection post of
4 RPT.(ST).11490/10-WP.7955/06
Research Officer which was required to be made on inter se merit of the
eligible candidates. Instead it was contended on behalf of the Council
that the principle of seniority-cum-fitness was to be followed for
promotion to that post. With a wrongful promotion not based on merit
was sought to be instead it was held by the Supreme Court that the
mistaken contention and concession of the Counsel do not bind it.
10.The case of Union of India and Ors. Vs. Mohanlal Likumal Punjabi &
Ors. (2004) 3 SCC 628 was relating to preventive detention. A
detention order passed under Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act (COFEPOSA) was revoked by the
Central Government not based upon the report of the Advisory Board
and the operation of Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (SAFEMA) was not excluded. The
question as to whether the challenge to order of detention could be
validly made in subsequent Writ Petition for action under SAFEMA came
up for consideration. The concessions made by Counsel to the challenge
to the validity of the order of detention, which was incorrect in law, was
held not binding upon the parties since the statutory provisions clearly
provided otherwise. It was held following the case of Uptron India Ltd
and Central Council (supra) that wrong concessions made by Counsel
was not binding upon the parties.
11.In the case of Union of India & Anr. Vs. S.C. Parashar (2006) 3 SCC
167 the imposition of major and minor penalty upon a delinquent in a
departmental inquiry came up for consideration. An amalgam of major
5 RPT.(ST).11490/10-WP.7955/06
and minor penalties were imposed on the defaulter. The Government
Counsel conceded before the High Court that the penalty was imposed
under specific rules which was Rule 11 of the Central Civil Services
(Conduct) Rules, 1964. Upon seeing that the intention of the punishing
authority was not to impose minor penalty, it was held that the
concession on question of law by Counsel does not bind the party.
12.It is contended by the Petitioner herein that the concession has been
wrongly made. Whether or not rules and the law in respect of
appointment of the Respondent herein were followed or not would have
to be seen before the impugned order in the Petition is set aside.
Consequently, it is seen that the Petition itself would have to be heard on
merits, the concession of the Counsel notwithstanding.
13.Hence the Review Petition is allowed.
14.The order dated 14th March 2008 is set aside.
15.The Writ Petition shall be heard on merits by regular Court.
(SMT. ROSHAN DALVI, J.) (SMT. RANJANA DESAI, J.)
