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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2018
PRESENT
THE HON’BLE MR. JUSTICE A.S.BOPANNA AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR
W.P.Nos.11077/2018 & 26123/2018 (S-CAT)
BETWEEN:
UNION PUBLIC SERVICE COMMISSION (UPSC) REP. BY ITS SECRETARY DHOLPUR HOUSE SHAHJAHAN ROAD NEW DELHI.
... PETITIONER
(BY SRI NARASIMHA HOLLA V., ADV.)
AND:
DR. A LOKESHA S/O ARENINGAPPA AGED ABOUT 49 YEARS, WORKING AS JOINT COTROLLER OFFICE OF FINANCE OFFICER BANGALORE UNIVERSITY JANABHARATHI BANGALORE-560 056
SHRI T VENUGOPALAREDDY S/O LATE K THIMMAPPA AGED ABOUT 54 YEARS, WORKING AS FINANCIAL ADVISOR SRI JAYADEVA INSTITUTE OF CARDIAC AND VASCULAR RESEARCH BANGALORE-560 069
UNION OF INDIA REPRESENTED BY ITS SECRETARY
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DEPARTMENT OF PERSONNEL
AND TRAINING MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSIONS NORTH BLOCK NEW DELHI-110 001
STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE-560 001
STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS VIDHANA SOUDHA BANGALORE-560 001
STATE OF KARNATAKA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY DEPARTMENT OF FINANCE VIDHANA SOUDHA BANGALORE-560 001 ... RESPONDENTS
(BY SRI ASHOK HARANALLI, SR.COUNSEL FOR SRI K SATISH, ADV. FOR C/R1 AND R2 SRI UDAY HOLLA, AG. A/W SRI I THARANATH POOJARY, AGA. FOR R4 TO R6 SRI C SHASHIKANTHA, ASG. FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 09.02.2018 IN O.A. NO. 170/00883-884/2017 UNDER ANNEX-A PASSED BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH IN O.A. NO. 274170 / 00883 - 884/2017.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR ORDERS ON 04.09.2018, COMING ON FOR PRONOUNCEMENT THIS DAY, A.S. BOPANNA. J., PRONOUNCED THE FOLLOWING:
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O R D E R
The petitioner - Union Public Service Commission (UPSC for short) is before this Court in this petition assailing the order dated 09.02.2018 passed in OA No.170/00883-884/2017 by the Central Administrative Tribunal, Bengaluru Bench (CAT for short). The CAT through the said order has issued the declaration that the respondents No.1 and 2 herein who are the applicants therein and other similarly placed Officers in the proposal dated 21.12.2017 of the State of Karnataka has preeminent right to be considered for promotion by selection into IAS Karnataka cadre of 2016. Hence the petitioner herein was directed to process the proposal issued by the State of Karnataka and call for the selection committee meeting and finalise the selection of 2016 of Karnataka cadre within the time frame indicated therein. The petitioner therefore claiming to be aggrieved is before this Court.
The brief facts are that the selection to the IAS from the non-service cadre is to be made in terms of the provisions contained in the Indian Administrative
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Service (Appointment by Selection) Regulations, 1997 (‘Regulations, 1997’ for short). The State Government in that light is required to send the proposal for consideration by the committee as constituted under Regulation 3 thereof. The Regulation also provides that the committee is to hold its meeting every year to consider the proposal if sent by the State Government. The State Government had accordingly prepared a list dated 25.07.2017 for selection from among the said Officers to the 3 posts that was available for the year 2016, which included the names of the respondents No.1 and 2 herein. However, due to the proceedings before the Tribunal relating to such selection in the applications in OA Nos.170/01007/2016, 170/00237/2017 and 170/00750/2017 (the last of which pertains to the respondent No.2 herein) was pending and due to the interim order granted therein, the matter could not be proceeded with by the State Government by forwarding the list prepared, which was under challenge and the Committee Meeting to consider the same also could not be convened.
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The said proceedings before the CAT was ultimately disposed of by the order dated 15.12.2017 wherein the CAT allowed the application bearing No.170/00750/2017 relating to the respondent No.2 herein with a direction to immediately complete the process of appointment and grant that benefit from the earliest point it is available to them. Pursuant to such direction, the State Government has thereafter dispatched the proposal to the petitioner on 21.12.2017. The petitioner herein was to convene the meeting of the committee and consider the proposal as per the Regulations, but had failed to do so. As such the respondents No.1 and 2 herein preferred the instant application in OA No.883-884/2017 before the CAT seeking for issue of mandamus to direct the respondents to convene the selection committee and prepare the select list and appoint the applicants as expeditiously as possible in compliance of the directions in OA No.170/00750/2017. The CAT after making a detailed consideration has through the order dated 09.02.2018 issued mandamus to the petitioner to
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process the proposal issued by the State of Karnataka and call for the selection committee meeting and finalise the selection of 2016 of the Karnataka cadre within 30 days from the order. The Union Government and the Government of Karnataka were also directed to take all such steps to facilitate the declaration given. The petitioner herein who is to convene the selection committee meeting and consider the same is before this Court in these petitions, assailing the order dated 09.2.2018 passed by the CAT,
In the above background we have heard Sri V.Narasimha Holla, learned counsel for the petitioner, Sri Udaya Holla, learned Advocate General along with Sri.I.Taranath Poojary, learned Government Advocate for respondents No.4 to 6, Sri Ashok Haranahalli, learned senior counsel along with Sri.K.Satish, learned counsel for respondents No.1 and 2, Sri.C.Shashikantha, learned Asst. Solicitor General and perused the petition papers.
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The entire emphasis by the learned counsel for the petitioner is on Regulation 5(c) of the Regulations 1997 to justify their action and to contend that the meeting of the committee is to be held during the year. In that light it is sought to be contended that the meeting as per the Regulation was required to be convened in the instant case on or before 31.12.2017 since it is provided that the meeting is to be held during the year. To express the inability of convening the meeting, it is contended that the pendency of the proceedings in OA No.170/00750/2017 and connected applications had delayed the proceedings up to 15.12.2017. On disposal of the same the State Government forwarded the list by letter dated 26.12.2017 along with the proposal. On examination certain deficiencies were noticed in the ACR dossiers of some Officers included in the eligibility list. Therefore the petitioner through their letter dated 27.12.2017 requested the State Government to rectify the deficiencies which was clarified by the State Government only on 29.12.2017. It is in that view
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contended that the meeting could not be held thereafter, as 30.12.2017 being a Saturday and 31.12.2017 being Sunday, both days were Holidays. Hence it is contended that the meeting could not be held as on the last day of the year 2017 and they seek to contend that the Regulation does not provide for holding the meeting thereafter for the particular year.
Learned Advocate General appearing for the State, as also the learned senior counsel representing the private respondents would seek to sustain the order passed by the CAT and as such they refer to the consideration as made by the CAT. It is pointed out that admittedly the proceedings in OA No.170/01007/2016 and connected applications were pending before the CAT and the interim order was in operation. If that be the position, the State Government was not entitled to proceed further till its disposal. Undisputedly the said applications were disposed of on 15.12.2017 and immediately thereafter the State Government had processed the matter and the list was submitted to the petitioner herein. Though the
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petitioner had sought for certain clarification, the same was also furnished well within the end of year 2017. Even if it is accepted that the last two days of the year were holidays, in the instant facts the Regulation 5 cannot be considered as a bar to hold the meeting nor would there be contravention of the Regulation if in the present facts the consideration was made immediately thereafter. It is contended that none of the parties were responsible for the delay in sending the proposal and in a circumstance when the prospects of the officers who have served the State is kept in view, the pendency of the proceedings before the Court cannot be allowed to affect their right. In such event the Court has a duty to protect the interest and in that circumstance when the CAT has directed consideration, such order will not call for interference, is their contention.
Since the consideration herein would be as to whether the Regulation 5(c) of Regulations 1997 could be treated as an absolute bar for the petitioner to process the matter subsequent to the last day of the particular year as contended by them, it would be
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appropriate to take note of the Regulation 5 as contained in Regulations, 1997. The same is as extracted hereinbelow: “5. Preparation of a list of suitable Officers by Committee-The committee shall meet every year to consider the proposal of the State Government made under regulation 4 and recommend the names of the persons, not exceeding the number of vacancies to be filled under regulation 3, for appointment to the Service. The suitability of a person for appointment to the service shall be determined by scrutiny of service records and personal interview: Provided that no meeting of the Committee shall be held and no list for the year in question shall be prepared, when (a) xxxxx (b) xxxxx (c) the Commission, either on its own or on a proposal made by the Central Government of the State Government, considers that it is not practicable to hold a meeting of the Committee during the year, in the facts and circumstances of each case. (Emphasis supplied)
A perusal of the same with specific attention to the emphasised portion would no doubt provide that a
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committee shall meet every year to consider the proposal of the State Government made under Regulation 4 and recommend the names of the persons, after the suitability of a person for appointment is determined. The proviso read with the sub-proviso (c) indicates that no meeting of the committee shall be held and no list for the year in question shall be prepared when the Commission either on its own or on a proposal made by the Central Government or the State Government considers that it is not practical to hold a meeting of the committee during the year in the facts and circumstance of each case.
The learned counsel for the petitioner would at the outset also contend that Regulation 8(2) provides for the mode of recruitment to IAS by induction of non-SCS Officers, which is to be resorted only in special circumstances on the recommendation of State Government in consultation with the petitioner. Thus it is not a mode of induction by appointment through promotion and does not confer any right of consideration or appointment to the Non SCS officers
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and it is to be resorted to only under special circumstance that the State Government have Non SCS Officers of outstanding merit and ability and the State Government desire to earmark vacancies to be filled up by these Officers and it has to be done only in that year and the petitioner cannot be compelled.
Though such contention is put forth, the same does not merit consideration in the present circumstances. This is for the reason that the matter was before the CAT in the earlier situation and subsequent to disposal on 15.12.2017 the State Government has sent the recommendation and as such the other requirements having been complied the first part of the process was completed. Further, there was also a direction by CAT to consider. The petitioner has also contended that on examining the recommendation certain defects were noticed in the ACR and therefore clarifications were sought which means the process was underway. The justification sought to be put forth is only that there were two days remaining for the close of the year which were holidays and the meeting could not
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be convened. If that be the position, non-consideration is not for the reason that there was no vacancy and there was no requirement or that there were no qualified officers. In that circumstance the petitioner cannot repel the prayer of the private respondents by raising such contentions.
Therefore the only contention that needs to be examined herein is as to whether the petitioner can be allowed to get away from not performing its function of convening the meeting because the year had elapsed. On that aspect, as noticed the learned counsel for the petitioner is seeking to bank on Regulation 5(c) and in that regard is seeking to contend that the meeting can be convened only before the end of year and not thereafter. To support such contention, the learned counsel for the petitioner is seeking to rely on the order dated 13.03.2015 passed by a co-ordinate Bench of this Court in the case of State of Karnataka Vs. Sri. Y.C.Shivakumar and others (W.P. No.59962/2014) wherein the order passed by the CAT directing consideration of the case of respondent No.1 therein
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was set-aside. The learned counsel for the petitioner seeks to refer para 18 to 21 thereof, since such decision is rendered by the co-ordinate Bench by relying on the conclusion of the Hon’ble Supreme Court in the case of Parameshwar Prasad Vs. Union of India and others [(2002)1 SCC 145].
In order to appreciate the said contention we have carefully perused the decision of the co-ordinate Bench as also the decision in Parameshwar Prasad’s case (supra) relied upon therein. In Y. Shivakumar’s case, it was a situation that the selection process was not made from the Non SCS Officers during the year 2010, 2011 and 2012 though there were vacancies and the said officer, among others was also eligible. However when the meeting was convened for selection in the year 2014, the said officer had crossed the age of 54 years and thus being ineligible as on 01.01.2014 his request was rejected by the endorsement dated 03.09.2014 which was assailed before the CAT in O.A. No.1115/2014 and was quashed by the CAT through the order dated 14.11.2014 so as to provide the benefit
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for selection. It was that order which was set-aside by the co-ordinate Bench since his case could not have been considered after he had crossed the age limit, notwithstanding the fact that the meetings were not held earlier. On the other hand, in the very decision it is held by the Co-ordinate Bench that in order to avoid such heart-burn among the officers, the process be held every year.
The case of Parameshwar Prasad (supra) decided by the Hon’ble Supreme Court, relied upon by the co-ordinate Bench is also a case wherein no meeting of the State Committee for short-listing of candidates took place for the years 1994-95 and 1995-96 for the Non SCS officers. But in 1996 when the said officers name was recommended by his department, the State Scrutiny Committee did not favourably consider his claim as he was 54 years of age as on 01.04.1996 and as such was not called for interview. His claim was that since there was no meeting of the State Scrutiny Committee for the years 1994-95 and 1995-96, the cut-off date ought to have been a date other than
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01.04.1996 so as to make him eligible by giving him benefit for the earlier years. In that circumstance it was the Officer himself who sought to rely on Regulation 5(3) to contend that there is an obligation on the State Government to convene the meeting every year and the failure to convene has denied the benefit. However, in that circumstance the Hon’ble Supreme Court held that it only provides for the State Government to consider the selection from time to time and was of the opinion that Officers beyond 54 years cannot be considered by the State Government. That position would no doubt apply if barred by age as on the date of consideration.
In that circumstance having given our thoughtful consideration, we are of the opinion that neither of the decisions would come to the aid of the petitioner in the present facts. On the other hand if the said decisions were taken in its true spirit, the petitioner ought to have convened the meeting. That is so, because in the instant case the State Government as per the requirement under Regulation 4 had processed the consideration but could not send the
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recommendation to the petitioner immediately thereafter in view of the interim order dated 07.09.2017 passed by the CAT in O.A. No.170/01007/2016 being in force till 15.12.2017.
Hence, the consideration of the recommendation at the end of the State Government for the year 2016 was already made and after the judicial process which was an impediment came to an end, the list/recommendation had been sent to the petitioner during the year i.e., before expiry of 2017 and in that situation the meeting could have been convened by the petitioner even if it was after 31.12.2017 since it was only a continuation of the process and the observation in the earlier decision of the Co-ordinate Bench is that the process should be done every year so as to avoid heart burn among officers.
In that regard a closer perusal of Regulation 5(c) will indicate that there is no bar for the meeting to be held if not held before 31st day of December of the particular year even in circumstance where the process had commenced. On the other hand it gives a discretion to the petitioner, Central Government or the
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State Government not to hold the meeting if it considers that it is not practicable to hold a meeting of the Committee during the year, in the facts and circumstance of each case. It would only mean that the Regulation does not compel holding of the meeting every year irrespective of, or by ignoring every other relevant fact. In other words the Non-service Officers need not be selected to the IAS cadre mandatorily every year for just exceptions and it is to that extent the discretion is given so that the said authorities shall not be compelled. That would not be relevant in the present case since as already noticed the State Government had finalized the list but was prevented from sending due to judicial proceedings and it had sent the recommendation to the petitioner herein only on conclusion of the pending judicial proceedings. Hence, in the facts and circumstance of the instant case the meeting ought to have been held, more particularly when there was a direction in O.A. No.170/00750/2017 as late as on 15.12.2017 and the said order had attained finality. The discretion given to the petitioner,
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Central Government or State Government is for any other reason they find that in a particular year it would not be practicable to hold the meeting of the Committee and select non service SCS to the IAS Cadre, which is not the case in the present circumstance and the petitioner in a casual manner cannot shirk its responsibility to the detriment of the career prospects of the eligible candidates including the private respondents who would have had the benefit of the consideration and such legitimate expectation cannot be denied.
In that regard the learned Advocate General has relied on the decision of the Hon’ble Supreme Court in the case of Union of India and another Vs. Hemraj Singh Chauhan and others [(2010)4 SCC 290] wherein it is held as hereunder: “42. Concurring with the aforesaid interpretative exercise, we hold that the statutory duty which is cast on the State Government and the Central Government to undertake the cadre review exercise every five years is ordinarily mandatory subject to
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exceptions which may be justified in the facts of a given case. Surely lethargy, in-action, an absence of a sense of responsibility cannot fall within category of just exceptions. 43. In the facts of this case neither the appellants nor the State of Uttar Pradesh has justified its action of not undertaking the exercise within the statutory time-frame on any acceptable ground. Therefore, the delayed exercise cannot be justified within the meaning of `ordinarily' in the facts of this case. In the facts of the case, therefore, the Court holds that there was failure on the part of the authorities in carrying out the timely exercise of cadre review. 44. In a somewhat similar situation, this Court in Union of India and Ors. vs. Vipinchandra Hiralal Shah (1996) 6 SCC 721, while construing Regulation 5 of the IAS (Appointment by Promotion) Regulations, 1955 held that the insertion of the word `ordinarily' does not alter the intendment underlying the provision. This Court in that case was considering the provision of Clause (1) of Regulation 5 of the IPS (Appointment by Promotion) Regulations along with other provisions of Regulation 5. The interpretation
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which this Court gave to the aforesaid two Regulations was that the Selection Committee shall meet at an interval not exceeding one year and prepare a list of members who are eligible for promotion under the list. The Court held that this was mandatory in nature. 45. It was urged before this Court in Hiralal Shah case that the insertion of the word `ordinarily' will make a difference. Repelling the said contention, this Court held that the word `ordinarily' does not alter the underlying intendment of the provision. This Court made it clear that unless there is a very good reason for not doing so, the Selection Committee shall meet every year for making the selection. In doing so, the Court relied on its previous decision in Syed Khalid Rizvi vs. Union of India - 1993 Supp. (3) SCC 575. 46. In Syed Khalid Rizvi (Sic.) the Court was considering Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 which also contained the word `ordinarily'. In that context the word `ordinarily' has been construed as: (Syed Khalid Rizvi, SCC p.586, para9) "9. ....since preparation of the select list is the foundation for promotion and its omission
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impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select list must be construed to be mandatory. The Committee should, therefore, meet every year and prepare the select list and be reviewed and revised from time to time as exigencies demand." The same logic applies in the case of cadre review exercise also. 47. Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees.”
Though in this case the Hon’ble Supreme Court has also referred to exercise of its exclusive power under Article 142 of the Constitution to mitigate the
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denial of legitimate right of the employees, in the instant case the direction issued by the CAT is as a means to implement its earlier order and also keeping in perspective the facts and circumstance of the instant case where the only exercise remaining was for the petitioner to convene the meeting and take a decision.
In addition, as already noticed, though the process had commenced by the State Government much earlier, the same had prolonged to the fag end of the year due to the judicial proceeding and the stay operating in the proceedings. Hence, the maxim “Actus curiae neminem gravabit” i.e., the act of Court shall prejudice none, will come into play. In that regard it is necessary to take note of the decision relied on by the learned Advocate General, rendered by the Hon’ble Supreme Court in the case of Rameshwar and others Vs. Jot Ram and another [(1976) 1 SCC 194] wherein it is held as hereunder: “The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. But because human
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institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late. But these higher Courts pronounce upon the rights of parties as the facts stood when the first Court was first approached. The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one. Actus curiae neminem gravabit(1). Precedential support invoked by the appellant's counsel also lets him down provided we scan the fact situation in each of those cases and the legal propositions therein laid down.”
In the decision in the case of Atma Ram Mittal Vs. Ishwarf Singh Punia [(1988)4 SCC 284) relied upon by the learned Advocate General also, the Hon’ble Supreme Court has held as hereunder: “8. It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curiae neminem gravabit" – an act of Court shall prejudice no, man. Therefore, having regard to the time normally consumed for adjudication, the ten years’ exemption or
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holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holidays from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.”
On the above aspect, the learned Senior Counsel for the private respondents has relied on yet another decision of the Hon’ble Supreme Court in the case of Kalabharathi Advertising Vs. Hemant Vimalnath Narichania and others [(2010)9 SCC437] wherein it is held as hereunder: “ 16. In Ram Krishna Verma & Ors. v. State of U.P. & Ors., [(1992)2 SCC 620], this Court examined the issue while placing reliance
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upon its earlier judgment in Grindlays Bank Limited v. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.. A similar view has been reiterated by this Court in Mahadeo Savlaram Shelke & Ors. v. Pune Municipal Corporation & Anr., (1995) 3 SCC 33. 17. In South Eastern Coalfields Ltd. v. State of M.P. & Ors.,[(2003)8 SCC 648], this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the
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act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences.”
Therefore, if all the above facts and law are taken into consideration, the petitioner cannot put forth such a casual contention to deny the legitimate expectation of the private respondents and other eligible candidates when there is no fault on their part and the process had also commenced as provided under the Regulations but was interrupted by judicial proceedings, which was also concluded with appropriate direction. Hence, irrespective of the fact whether any
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other party had derived benefit from the pending proceeding before the CAT in the first round, the fact remains that the interim order and the pendency had prevented the process from being completed. Hence the situation is to be salvaged by the Court itself by enabling the completion of the process. In such situation, the conclusion reached by CAT in the present proceedings through the order dated 09.02.2018 which is impugned herein is also justified and does not call for interference. However since the time framing fixed by the CAT has expired, the process shall now be complied by the petitioner within 30 days from the date of receipt of a copy of this Order.
Accordingly, these writ petitions being devoid of merit stand dismissed. No order as to costs.
Sd/- JUDGE
Sd/- JUDGE
SPS/bms