judgement:
Appeal No. 88 of 1959.
Appeal by special leave from the judgment and order dated May 6, 1958, of the Industrial Tribunal, Delhi, in 0.
P. No. 54 of 1958.
M.C. Setalvad, Attorney General for India, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.
Janardan Sharma, for the respondent.
March 10.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an industrial matter.
The appellant is a company carrying on the manufacture of textiles.
The respondent Kushal Bhan was in the employ of the company as a peon.
It appears that the cycle of Ram Chandra, Head Clerk of the Folding Department was stolen on August 24, 1957.
The matter was reported to the police.
Sometime later, the cycle was recovered from the railway station cycle stand at the instance of the respondent who took the police there and picked out 229 the stolen cycle from among 50/60 cycles standing there.
This matter was apparently brought to the notice of the company in October 1957 and thereupon a charge sheet was served on the respondent to the effect that he had stolen the cycle of Ram Chandra, Head Clerk, that it had been recovered at his instance and that a criminal case was pending against him with the police.
He was asked to show cause why he should not be dismissed for misconduct.
The respondent submitted his explanation on October 13, 1957.
As his explanation was unsatisfactory, November 14, 1957, was fixed for enquiry.
The respondent appeared before the enquiry committee but stated that as the case was pending against him, he did not want to produce any defence till the matter was decided by the court.
He further stated that he did not want to take part in the enquiry and was not prepared to give any answers to questions put to him.
When questions were put to him at the enquiry he refused to answer them and eventually he left the place.
The company, however, completed the enquiry and directed the dismissal of the respondent on the ground that the misconduct had been proved against him.
Thereafter an application was made under section 33(2) of the Industrial Disputes Act, No. 14 of 1947, by the company to the tribunal for approval of the action taken against the respondent.
The matter came before the tribunal on May 6, 1958.
In the meantime, the respondent had been acquitted by the criminal court on April 8, 1958, on the ground that the case against him was not free from doubt.
The copy of the judgment of the criminal court was produced before the tribunal and it refused to approve the order of dismissal.
The company thereupon applied for special leave to this Court resulting in the present appeal.
The main contention on behalf of the appellant company is that the company was not bound to wait for the result of the trial in the criminal court and that it could, and did, hold a fair enquiry against the respondent, and if the respondent refused to participate in it and left the place where the enquiry was being held, the company could do no more than to complete it and come to such conclusion as was 230 possible on the evidence before it.
Learned counsel for the respondent, on the other hand, urges that principles of natural justice require that an employer should wait at least for the decision of the criminal trial court before taking disciplinary action, and that inasmuch as the employer did not do so in this case the employee was justified in not taking part in the disciplinary proceedings which dealt with the very same matter which was the subject matter of trial in the criminal court.
It is true that very often employers stay enquiries pending the decision of the criminal trial court& and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.
In Shri Bimal Kanta Mukherjee vs Messrs. Newsman 's Printing Works (1), this was the view taken by the Labour Appellate Tribunal.
We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.
The present, however, is a case of a very simple nature and so the employer cannot be blamed for the course adopted by him.
In the circumstances, there was in our opinion no failure of natural justice in this case and if the respondent did not choose to take part in the enquiry, no fault can be found with that enquiry.
We are of opinion that this was a case in which the tribunal patently erred in not granting approval under section 33(2) of the Industrial Disputes Act.
Besides it is apparent that in making the order under appeal, the tribunal has completely lost sight of the limits of its jurisdiction under section 33(2).
We therefore allow the appeal and setting aside the order of the tribunal grant approval to the order of the appellant dismissing the respondent.
In the circumstances we pass no order as to costs.
Appeal allowed.

summary:
The appellant company served a charge sheet on the res pondent who was one of its employees alleging that he had stolen the cycle of the company 's Head Clerk.
A criminal case relating 228 to the theft was pending against him then.
He was asked to show cause why he should not be dismissed for misconduct, and as his explanation was unsatisfactory a certain date was fixed for enquiry.
The respondent appeared before the enquiry committee but refused to participate in the enquiry by answering questions put to him as he did not want to produce any defence till the matter was decided by the Court.
The company,however,after completing the enquiry directed the dismissal of the respondent on the ground that misconduct had been proved against him.
The company thereafter made an application under section 33(2) Of the Industrial Disputes Act to the Industrial Tribunal for approval of the disciplinary action taken against the respondent.
In the meantime the respondent was acquitted by the Criminal Court. 'The judgment of the Criminal Court was produced before the tribunal which refused to approve the order of dismissal of the respondent.
On appeal by the company by special leave : Held, that the principles of natural justice do not require that an employer must wait for the decision of the Criminal Trial Court before taking disciplinary action against an employee.
Shri Bimal Kanta Mukherjee vs Messrs. Newsman 's Printing Works, , approved.
If a case is of a grave nature involving questions of fact and law which are not simple it would be advisable for the employer to await the decision of the Criminal Trial Court but in a simple case like the present the tribunal erred in not granting approval under section 33(2) of the Industrial Disputes Act.


judgement:
Civil Appeal Nos.
4507 and 4508 of 1992.
From the Order dated 20.1.1992 of the Central Administrative Tribunal, Madras in O.A No. 925 of 1900.
K.T.S. Tulsi, Addl.
Solicitor General, Kapil Sibal, C.V.S., Rao, C. Ramesh and Ranjit Kumar for the Appellant.
P.P. Rap, V. Balachandran, R.P. Oberoi and B.S. Gupta for the Respondents.
The Judgment of the Court was delivered by MOHAN J.
Leave granted.
Both these appeals can be dealt with by a common judgment since identical issues are involved.
They are directed against the judgment of the judgment Central Administrative Tribunal, Madras dated 23.1.1992.
S.L.P. No. 7138/92 is preferred by Union of India while S.L.P. No. 6494/92 is filed by the affected party (Dr. M. Khalilullah).
The parties are referred to as mentioned in S.L.P. No. 7138/92.
The facts are as under.
The President of India sanctioned 35 posts in super time grade of Central Health Services in the scale of Rs.5900 200 6700 plus non practising allowance at the normal rates as admissible to other similar posts.
The sanction was upto 29.2.98.
The sanction was conveyed by the Under Secretary to the Government of India, Ministry of Health and Welfare, New Delhi on 26.8.1987.
After the creation of these posts, proposals were sent to the Union Public Service Commission for convening the meetings of the Departmental Promotion Committee for selection of the Candidates for Promotion.
The Union Public Service Commission approved to amend Rule 4(6) of Central Health Service Rules of 1982.
It also approved the method of recruitment, field of selection and principles of seniority to fill up these 35 posts as a one time measure in the absence of notified recruitment rules.
In its communication dated 29.9.88 the Union Public Service Commission besides referring to the above approvals specifically, stated: "These 35 posts may be treated as common posts both at present and in future to be included in the category of the floating posts for the Teaching and Non Teaching sub cadres mentioned in Rule 4(6) of the CHS Rules of 1982.
The eligibility conditions for promotion will be 3 years of regular service as Professor/Specialist Grade I with 17 years of regular service in Group `A '".
In the end, the Commission advised that the basis of eligibility and the eligibility list might be circulated to all concerned, their objections invited and settled before the meeting of Departmental Promotion Committee (Health).
It also requested that the final eligibility list might be sent to the Union Public Service Commission.
On 3.11.88, this decision was conveyed to all the concerned parties stating that it has been decided to fill up the posts by selection method i.e. merit with regard to seniority.
The eligibility conditions for promotion will be 3 years of regular service in Group `A '.
Together with that letter was enclosed the eligibility list of Professors.
On the basis of the Principles stated in the letter, errors/omissions/objections etc.
Were to be intimated to the Ministry within one month.
In the eligibility list include, Dr. P. Rajaram, the first respondent, was assigned rank No. 13 while Dr. Khalilullah, the third respondent was assigned the rank No. 24.
On 20.9.1989 , in accordance with the guidelines dated 10.3.89, the Departmental Promotion committee met for selection of officers for the promotion to the super time grade posts of director professor in the Central Health Service.
It requires to be stated that these posts were extended from time to time.
Each extension was for a period of one year.
Ultimately by an order dated 2.4.1992, it has been extended for a period of one year up to 28.2.1993.
Consequent upon the selection by Union Public Service by an order dated 17.1.1990, the President was pleased to appoint under Rule 4(10) of the Central Health Services Rules, 1982 the officers of Specialist Grade I of the Teaching Specialist sub cadre of the Central Health Service to supertime grade of the Teaching Specialist sub cadre of the Central Health Service.
They were posted as Director Professors on an officiating basis in the pay scale of Rs. 5900 6700 plus non practising allowance @ Rs.950 p.m.
The dates of promotions were indicated against each of the appointee.
As far as Dr. Rajaram, the first respondent is concerned, he was assigned rank No. 14 and the date of promotion was as 1.4.1989 while respondent No. 3, Dr. M. khalilullah was assigned rank No.4 and the date of promotion was as 1.4.1989.
Paragraph 3 of the order specifically states that the above promotions will be personal to the officers concerned and the posts Presently held by them will stand upgraded to the Supertime grade in the scale of Rs.5900 6700 plus non practising allowance @ Rs.950 p.m. in terms of Ministry 's order No. A 11011/5/88 CHS IV, dated 15.3.1989.
This will continue till the upgraded Posts are held by the officers being promoted now.
Aggrieved by the order dated 17.1.1990, the first respondent (Dr. Rajaram) preferred an application No. 925 of 1988 on 6.7.1990.
In that application, he had stated that he was senior to Dr. B.S. Rana, Dr. M. Khalilullah, Dr. K.K. Jain and Dr. D.D.S. Kulapathy.
They should not have been show above him.
The promotion was only on the basis of seniority.
In opposition to this, the respondent in the application who has secured a higher rank urged that the Departmental Promotion Committee had ranked Dr. Rajaram at serial No. 14 on the basis of merit.
The criterion for promotion is only merit.
Before the Tribunal, the scope of Rule 4 sub rule (10), clause (iii) of Central Health Service Rules, 1982 (hereinafter referred to as "the Rules") came up for interpretation.
The Tribunal, in the impugned judgment, accepted the contention of Dr. Rajaram and held that promotion for the post of director/Professor should be made on the basis of seniority.
Consequently, it directed that he be posted above the respondents who had been named in the application.
It is under these circumstances, the present S.L.Ps. have preferred by Union of India as well as by Dr. Khalilullah.
Mr. Kapil Sibal, learned counsel appearing for Dr. M. Khalilullah after taking us through the rules submits that rule 4(10) (i) of the Rules deals with 35 newly created floating common posts in the supertime grade Rs.5900 6700 in the Teaching and Non Teaching specialist sub cadre.
These posts were in addition to the authorised strength of posts in the supertime grade.
The authorised strength of both categories of Teaching and Non Teaching sub cadres is reflected in Schedule II.
Rule 4(10) (ii) stipulates that promotions to these posts are to be made on the basis of common eligibility list to be drawn separately for the Teaching Specialist sub cadre and the Non Teaching Specialist sub cadre.
This has to be without reference to any of the specialities in respective sub cadres.
Rule 4(10)(iii) stipulates that the eligibility list shall be made after the officer concerned has been duly assessed by a Departmental Promotion Committee in regard to the officer 's suitability for holding the post with the condition that the said officer should have completed three years of regular service as Professor (Specialist) Grade I.
This rule does not stipulate the manner in which the suitability of the said officer is to be assessed by the Departmental Promotion Committee.
Schedule IV of the Rules talks of the constitution of the Departmental promotion Committee.
It is clearly stipulated that in each meeting of the Departmental Promotion Committee the Chairman/Member, Union Public service Commission shall chair the Departmental promotion Committee.
The guidelines stipulate that the Departmental Promotion Committees constituted under the respective Service Rules shall judge the suitability of officers for promotion to selection as well as non selection posts.
Here again, the Union Public service commission should be associated with Departmental Promotion Committee in respect of Central Civil Services Posts belonging to grade `A ' where promotion is based on the principle of selection unless it has been decided by the Government of India not to associate the Union Public Service Commission.
The Union Public Service Commission need not be associated in respect of posts belonging to Grade A if the promotion is based not on the Principles of selection but on seniority cum fitness.
Wherever the Union Public Service Commission is associated with Departmental Promotion Committee, the Chairman or a Member of the Commission will preside over the meeting of Departmental Promotion Committee.
When Schedule IV requires that the Departmental Promotion Committee(Services) ought to be Presided over by the Chairman or Member of the Union Public service Commission itself suggests that the said posts ought to be filled in by way of selection rather than on the basis of seniority cum fitness.
Consequently, the word `suitability ' in Rule 4(10) (iii) in the context of nature of posts, its grade, can only mean suitability for the purposes of being selected to the said Post.
This submission is made on the basis that Rule 4(10) is a complete code in itself.
Even if this post falls outside the Schedule ii, the basis of promotion cannot be seniority.
In terms of Rule 3 of the Rules, the Central health service consists of persons appointed to the service under sub rule (5) of Rule 4 and rules 7 & 8.
It is the contention of the appellant that under Rule 4(3), Government of India is entitled to make temporary additions to or reductions in the strength of `duty posts ' in the various grades as deemed that these are posts with designations specified in Part A of Schedule II whether permanent of temporary.
When this definition is read along with Rule 4(1) (ii) and Rule 4(1) (iii), it is clear that temporary additions or reductions in the number of duty posts can take place from time to time.
These 35 floating/common posts were created for the first time on August 26, 1987 and administrative orders have thereafter been issued from time to time extending the creation of the said `duty posts ' without amending Schedule II.
Certainly, these posts were part of authorised strength at the time of initial constitution of the Service.
Rule 8 contemplates that any vacancy arising in any one of the grades referred to in Schedule II shall be filled in, as provided in rule 8(4) (ii).
The difference between Rule 4(10) (iii) and rule 8(4) (ii) is that whereas in the latter the promotion is to be made with reference to a post in the Teaching Specialist sub cadre or the Non Teaching Specialist sub cadre on account of any vacancy occurring therein, in a particular speciality, in the case of the former, notwithstanding the fact that one of the 35 floating/common posts may be held by a particular person of a particular speciality, the said post can go to a person not belonging to that speciality, since the Teaching Specialist sub cadre forms a class by itself which comprises 29 specialities.
It is in this context, therefore, that the said posts could not be included in schedule II, since specialities.
It is, therefore, clear that whereas the word `selection ' used in Rule 8(4) (ii) is with reference to inter se merit of persons belonging to a particular speciality with reference to a vacancy occurring in a speciality but with reference to the inter se merit of candidates based on their confidential reports and assessed by the Departmental Promotion Committee belonging to any of the 29 specialities, who would be considered most suitable to be promoted, since the concept of seniority cum fitness cannot possibly be applied to a common set of posts without reference to any speciality.
Thus, it is submitted that to determine the meaning of suitability, the same yard stick must be adopted.
In any event, these are highly specialised posts.
Hence, it is unthinkable that the promotions to these posts is based on the principle of seniority cum fitness and not on the basis of selection.
The word `suitability ' will have to be interpreted as seniority cum fitness.
Otherwise, it would be liable to struck down as unconstitutional being violative of Articles 14 and 16 of the Constitutions.
Therefore, it is submitted that the Rule must be so interpreted as not to violate the fundamental rights.
The Tribunal had gone wrong in adopting the principle of seniority and its interpretation of rules cannot be sustained.
Learned counsel for Union of India, Shri K.T.S. Tulsi, supporting the arguments of Shri Kapil Sibal, urged that the order creating these posts clearly mentioned that the posts are created in the super time cadre of Central Health service.
Rule 4(10) (ii) and (iii) as amended merely prescribe the procedure for preparation of eligibility list.
This procedure is nowhere prescribed in any other Rule.
This was because of the fact that the 35 posts were created as floating posts.
They did not pertain to any particular super speciality or sub cadre of Professor/Director.
Therefore, criteria for preparation of eligibility list had to be prescribed for determining inter se ranking between the sub cadre.
Merely because Rule 4(10) (iii) contains the word `suitability ', the said Rule does not supersede alter or amend the criteria for selection.
The word `suitability ' will have to be understood in the light of the guidelines of Departmental Promotion Committee.
These 35 posts referred to in Rule 4(10) are an integral part of the cadre.
The said posts were not added to Schedule Ii, forming part of the temporary strength of the cadre.
However, on August 10, 1992, the said posts have been added to Schedule Ii so as to make its intention clear that the promotion is to be governed by all the relevant rules and not by Rule 4 (10) when read in isolation from the remaining Rules.
Thus, it is submitted that the reasoning of the Tribunal is unsupported.
Mr. P.P. Rao, learned counsel on behalf of Dr. P. Raja Ram would urge as under.
The initial argument particularly on behalf of the Union of India was that these floating/common posts of super time grade of teaching Specialist sub cadre formed part of authorised strength of the Central Health Service in terms of Rule 4(10).
This was contested by this respondent that Schedule II has not been amended till date so as to include these posts.
Instead of frankly admitting the mistake, there was a deliberate attempt to justify the inclusion of these 35 posts as part of Schedule II.
This is nothing but misleading the Court.
This alone is enough to dismiss the Special Leave Petition.
Even on merits, Rule 4(10) states that the posts are to be filled up by the method of promotion and on the basis of an eligibility list.
The note also lays down that the eligibility list shall be prepared with regard to the date of completion of the prescribed qualifying years of service in their respective grades, by the officers.
Further clause (iii) of sub Rule (10) adds the requirements of assessment by a Departmental Promotion Committee in regard to the suitability of each officer for holding the post while considering his case for promotion on the basis of common eligibility list.
The words 'his suitability" in the said clause (iii) are very significant.
They postulate assessment of suitability of each candidate in the order in which the names appear in the common eligibility list drawn on the basis of continuous qualifying service rendered by them in the feeder Grade.
The scheme of sub Rule (10) totally rules out selection on the basis of relative merit of all eligible candidates.
The difference between `common Posts ' and `floating posts ' is that while in `common posts ', a Professor on being promoted to one of the `common posts ', a Professor on being promoted to one of the `common posts ' moves to that post and vacates the post of Professor previously held by him, while in floating posts ' the post held by him is upgraded and he continues to work in the same speciality, in the same institution.
The guidelines of the Departmental Promotion Committee are not of any assistance.
Therefore, no argument can be advanced on this basis.
If guidelines were governed, there was no purpose in adding Rule 4(10) (ii) and (iii).
The basic distinction between the selection posts and non selection posts is, whether it is to be filled by a comparative assessment on merit of all eligible candidates or on the basis of continuous length of service.
The guidelines say that there is no need to make comparative assessment of records of the officers but it should categorise the officers as fit or non fit.
It is a clear indication that there is no comparative assessment involved.
The common eligibility list which talks of Rule 4(10) is nothing but a combined seniority list of officers in different specialities drawn with reference to the date of completion of the prescribed qualifying years of service.
It is also incorrect to contend that it is a duty post as defined under Rule 2(e).
Such an expression as 'duty post is absent under Rule 4(10)".
When these posts had been created in order to release stagnation in addition to authorised strength, presence of Chairman of Member of Union Public Service Commission at the Departmental Promotion Committee does not make a non selection post as selection post simply because the guidelines say in the case of non selection posts, Union Public Service Commission need not be associated.
The fact that this respondent did not raise any objection to the letter dated 3.11.1988, will not, in any manner, deprive him of his right if the Rules confer such a right.
lastly, it is submitted that if two views are possible, the view taken by the Tribunal should be upheld.
Thus, no interference is warranted.
We shall now proceed to consider the merits of the above contentions.
35 posts in super time grade of Central Health Service in the scale of Rs.5900 200 6700 plus non practising allowance at the normal rates admissible to similar posts were created.
These posts were to last till 29.2.1988.
Time and again, they were extended.
The Rules which were relevant to appreciate the controversy whether the promotion is on the basis of seniority or on the basis of merit may now be seen.
In exercise of the power conferred under the proviso to Article 309 of the Constitution, the Rules called Central Health Service Rules, 1982 were framed.
Rule 3 speaks of the constitution of Central Health Service.
This service is to consist of persons appointed to the service under the Rules 4(5),7 and 8.
Rule 4 speaks of authorised strength of service.
Sub rule (1) of this Rule states that the authorised strength of duty posts and the deputation posts are as specified in Schedule II.
Under sub rule (3), the Government is empowered to made temporary additions or reductions in the strength of both : (i) the duty posts (ii) deputation posts.
sub rule 6(i) and (ii) may be quoted as follows: (6) (i) "The Controlling Authority shall upgrade five posts in the grade of Specialist Grade I to supertime grade (three posts in the Teaching Specialist Sub cadre as Director Professor and two posts in the Non Teaching Specialist Sub Cadre or Public Health sub cadre as Specialist (Consultant) and twenty five posts in the grade of Specialist Grade II in the non Teaching Specialist Sub cadre or Public Health Sub cadre or Associate Professor in the Teaching Specialist Sub cadre in the grade of Specialist Grade I without altering the combined authorised strength of posts of the respective sub cadre from which these posts are temporarily upgraded.
(6) (ii) The promotions under this sub rule shall be made on the basis of a common eligibility list covering all officers in the respective sub cadres without regard to any specialities.
" It requires to be carefully noted that what is talked of is a common eligibility list.
In other words, this has only reference to eligibility.
This is an aspect which we want to emphasise even in the beginning.
Then, we come to sub rule (10) which was introduced on 30.5.1989 which specifically deals with these 35 newly created floating/common posts in the super time grade of Rs. 5900 6700.
These 35 posts are made up of 20 posts in the Teaching Specialist sub cadre as Director Professor and 15 posts in the Non Teaching Specialist sub cadre as Consultant.
These posts will be in addition to the authorised strength.
It is common ground that these posts were created to release stagnation.
Earlier to this amendment, these posts in the Teaching Specialist Sub cadre were alone open to Professors from all specialities.
They were : (i) Director, G.B. Pant Hospital, New Delhi.
(ii) Dean, Moulana Azad Medical Collage, New Delhi.
(iii) Principal, Lady Harding Medical Collage , New Delhi.
(iv) Director, JIPMER, Pondicherry.
(v) Dean, JIPMER, Pondicherry.
(vi) Deputy Director General (Medical), D.T.E., DGH, New Delhi.
As could be seen, the promotion posts available were very few and were restricted to certain specific specialities.
This led to stagnation.
Therefore, the floating posts (20+15) were created to be filled in the grade of Professor/Specialist Grade I (Rs.4500 5700).
It was in this background Rule 4(10) was introduced.
That lays down : "There shall be 35 newly created floating/common posts in the supertime grade of Rs.5900 6700 (Twenty posts in the teaching specialist sub cadre as Director Professor and fifteen posts in the Non Teaching Specialist sub cadre as Consultant) which will be in addition to the authorised strength of posts in supertime grade of Rs. 5900 6700 in different sub cadres of Central Health Service.
" Further clause (ii) of the above Rule lays down as follows: "The promotions under this sub rule shall be made on the basis of a common eligibility list to be drawn separately for Teaching Specialist sub cadre and Non Teaching Specialist sub cadre covering all officers in the respective sub cadres viz. Teaching and Non Teaching without regard to any specialities".
Here again, it talks of eligibility.
In our opinion, eligibility means interlacing of seniority list of different specialities.
Clause (iii) reads as under : " The appointment against such posts shall be made only if the officer concerned has been duly assessed by a Departmental Promotion Committee in regard to his suitability for holding the post and has been working in the grade of Professor/Specialist Grade I on a regular basis for not less than three years, failing which has been working as a Professor/Specialist Grade I with 17 years of regular service in Group `A ' post".
The note is also made for our purpose that states : "The eligibility list shall be prepared with reference to the date of completion by the officers of the prescribed qualifying years of service in the respective grades.
However, in case of persons who have been appointed on the same date the seniority shall be determined as under : (a) Where the eligible officers were considered by the same D.P.C. the seniority shall be based on the order of merit.
(b) If there is no order of merit, the seniority shall be on the basis of seniority in the feeder grade.
(c) If there is no seniority in the feeder grade or it is not possible to determine the seniority even in the feeder grade, the length of regular service in the feeder grade shall be the guiding factor for determining the seniority.
(d) if length of service in the feeder grade is also the same, regular service in the next lower grade shall be taken into account, failing which date of birth.
" It may be seen that clause (iii) states that the appointment is to be made only if the officer concerned has been duly assessed by a Departmental Promotion Committee in regard to his suitability for holding the Post.
Such a consideration will arise only if the concerned officer has been working in the grade of Professor/Specialist Grade I for a period not less than three years.
The alternative qualification is 17 years of regular service in Group `A ' post and the concerned officer has been working as a Professor or Specialist Grade I.
This clause does not lay down the manner in which the suitability of the officer is to be assessed.
However, It is noteworthy that suitability is to be assessed by a Departmental Promotion Committee.
As to what is stated can be seen, when we look at Rule 2 which contains definitions.
Rule 2(c) says as under : "Departmental Promotion Committee means a group `A ' Departmental Promotion Committee specified in Schedule IV for considering the cases of promotion or confirmation in Group `A ' Posts are of the scale of Rs.2200 4000 and above.
Schedule III defines the method of recruitment, the field of selection for promotion and the minimum qualifying service in the immediate lower grade or lower grades for appointment or promotion of officers to group `A ' duty posts and deputation posts in the Central Health service".
In Note 1 of the said Schedule, it is stated thus : "Promotion to the post of Associate Professor (non functional selection grade), Associate Professor, Specialist Grade II (non functional selection grade), Specialist Grade II (Senior Scale) in non teaching and Public health sub cadres, Chief Medical Officer (non functional selection grade) and Senior Medical Officer will be on non selection basis.
All the remaining posts are selection posts".
When it says all the remaining posts are selection posts, it is obvious that the posts with which we are concerned are selection posts.
Schedule IV lays down the composition of Departmental Promotion Committee.
With regard to the Teaching Specialist sub cadre posts, super time and Specialist Grade I (Professor), the Departmental Promotion Committee shall consist of the following : (i) Chairman.
Chairman/Member, Union Public Service Commission : (ii) Secretary or his nominee, Ministry of Health and Family Welfare ; Member (iii) Director General of Health Services or his nominee : Member.
(iv) One Departmental officer nominated by the Secretary, Ministry of Health and Family Welfare : Member.
When Rule 4 (10) (iii) talks of Departmental Promotion Committee, it is only this Departmental Promotion Committee in accordance with Schedule IV that is thought of.
There guidelines issued under the office memorandum of Government of India dated April 10, 1989.
Under this Office Memorandum, the various instructions have been updated and consolidated.
Under these guidelines, the Departmental Promotion Committee so constituted shall judge the suitability of the officers for promotions to selection posts.
it has already been seen that these are selection posts as per Schedule II of the Rules.
In Paragraph 2.1 with reference to the post in question carrying a scale of Rs.5900 6700 or equivalent.
The minimum status of Officer who should be member of Departmental Promotion Committee is prescribed as Secretary or Additional Secretary to Government of India.
Paragraph 2.2 of the guidelines states as follows : "The Union Public Service Commission (UPSC) should be associated with DPCs in respect of all Central Services/posts belonging to Group `A ' where promotion is based on the principles of selection unless it has been decided by the Government not to associate the UPSC with a Group `A ' DPC.
The UPSC need not be associated in respect of posts belonging to Group `A ', if the promotion is based not on the principles of selection but on seniority cum fitness".
Paragraph 2.4 also stresses the fact that whenever the Union Public Service Commission is associated with the Departmental Promotion Committee the Chairman or a Member of the Commission will preside over the meeting of the Departmental Promotion Committee.
The contention of Mr. P.P. Rao, learned counsel for the respondents that the nature of the post or the method of promotion need not be decided with reference to the guidelines is not correct.
In Rule 4, sub rule (10), clause (iii), to which a reference has already been made, the assessment is required to be done by a Departmental Promotion Committee.
It is for such a Committee that guidelines have been prescribed.
Therefore, we cannot altogether ignore these guidelines.
From the above two paragraphs it is clear that if there is to be an assessment the principle of selection is involved.
On the contrary, if it were merely a seniority cum fitness there is no need to associate the Union Public Service Commission as pointed out in Paragraph 2.3 of the guidelines.
All these lead only to one conclusion that these are selection posts.
Having arrived at this conclusion then the question would be what exactly is the meaning of the word "suitability".
That is dealt with apart from Rule 4, sub rule (10), clause (iii), also under guidelines in Paragraph 6.1.2.
The Departmental Promotion Committee is to devise its own method and procedure for objective assessment of suitability of candidates.
It is noteworthy in paragraph 6.3.1 that the procedure for the preparation of the panel for promotion by the Departmental promotion Committee is delienated.
Clause (ii) is very important and we extract the same: "In respect of all posts which are in the level of Rs.3700 5000 and above, the benchmark grade should be `very good '.
However officers who are graded as `Outstanding ' would rank en bloc senior to those who are graded as `Very Good ' and placed in the select panel according upto the number of vacancies, officers with same grading maintaining their inter se seniority in the feeder post".
(Emphasis supplied) In contradistinction to this when we look at paragraph 7 of the guidelines, which deals with non selection method, that dispenses with the requirement to make a comparative assessment of the records.
In such a case what is required is to categorise the officers as fit or not yet fit for promotion on the basis of the assessment of the record of service.
In so far as we are concerned with selection this paragraph does not have any application whatever.
Thus, therefore, the word "suitability" in Rule 4(10) (iii) having regard to the nature of the post and grade, could only mean suitability for the purposes of being selected to the said post.
(Emphasis supplied) Further, the expression "suitability" in the said clause does not, in any manner, supersede alter or amend the criteria of selection Prescribed in the remaining rules as is applicable to super time grade post.
When the expression "suitability" is construed harmoniously with other rules, the process of selection is inescapable as rightly contended by Mr. K.T.S. Tulsi, learned additional solicitor General.
The argument of Mr. Rao that if these posts are by the method of selection, clauses (ii) and (iii) and a note thereunder are wholly unnecessary in Rule 4(10), overlooks the fact that these clauses deal only with eligibility.
It is a common case between the parties that these 35 floating posts were created by sub rule (10) of the Rule 4 in addition to the authorised strength.
If as per the rule, for the post falling under authorised strength the method of selection is adopted for the authorised strength it must equally apply to the post created in addition to the authorised strength.
Though a good deal of controversy arose during the course of the arguments whether these posts had been included in Schedule II or not, it was vehemently commented upon by Mr. P.P. Rao, learned counsel, that an inaccurate statement was made by Union of India that controversy pales into insignificance because of the Gazette Notification dated 10th of August, 1992 including these 35 newly floating/common posts in Schedule II.
Therefore, if these posts form part of the authorised strength as to what would be the bearing of Rule 8(4)(ii), requires to be considered.
A careful reading of Rule 8(4)(ii) reveals that departmental promotion to higher post in the respective special cadres and specialities within the sub cadre concerned shall be made on the basis of selection on merit.
It implies that, should vacancy arise in a particular speciality, this method is to be adopted.
In contradistinction to this, under rule 4(10)(iii) even though one of the floating or common posts may be held by a particular person of a particular speciality, the said post can go to a person not belonging to that speciality.
The teaching, speciality sub cadre, forms a class within itself since it comprises of 29 specialities.
Thus it follows the word "selection" used in Rule 8(4)(ii) with reference, to inter se merit of persons belonging to a particular speciality with regard to the vacancy occurring in that speciality.
Lastly, we may refer to one important fact.
The first respondent (Dr. Raja Ram) was served with a copy of letter dated 3.11.1988.
That clearly states that the 20 posts of Director Professor of Super time grade are to be filled up by selection method, merit with regard to seniority.
Therefor, the decision of Government of India had been conveyed to the first respondent.
The first respondent when he was put on notice should have immediately voiced his protest.
Of course, the failure to protest would not deprive him of a legitimate right if he is entitled to in law.
However, it is one of the points to be borne in mind.
The Departmental Promotion Committee met on 20th September, 1989 and the minutes have been placed before us.
After examination of the character rolls of the senior most eligible officers the committee assessed the officers as given in Annexure I.
The first respondent, Dr. Raja Ram was rated as "very good" while the rating for the other doctors is as follows : 1.
Dr. B.S. Rana (2nd respondent ) : Outstanding 2.
Dr. M. Khalilullah (3rd respondent ) : Outstanding 3.
Dr. K.K. Jain (4th respondent ) : Outstanding 4.
Dr. D.D.S. Kulapathy (5th respondent ) : Outstanding Where respondents 2 to 5 are rated outstanding, they go `en bloc ' above the first respondent since the first respondent is merely "very good".
This is because of the application of clause II of paragraph 6.3.1 of the guidelines quoted above.
It was on this basis the Departmental Promotion Committee assigned rank No.14 to the first respondent, Dr. Raja Ram.
Pursuant to this, the President of India issued the impugned order of promotion dated 17th of January, 1990.
Paragraph 3 of the order, which we have quoted above, clearly states that the promotions will be personal to the officers concerned and the posts presently held by them will stand upgraded to the super time grade in the scale of Rs.5900 6700 plus non practising allowance at Rs.950 per mensem in terms of the Ministry 's order dated 15.3.89.
Above all these, we cannot lose sight of the fact that for posts of this character in super time grade carrying high salary, promotion could not be accorded merely on the basis of seniority.
In our considered view, it should be on merit.
For the foregoing reasons, we are clearly of the opinion that the Tribunal had erred in merely adopting seniority as the basis of promotion and not merit.
It is needless for us to consider whether these are duty posts since we have taken the view that these posts fall within Schedule II of the Rules.
In the result, we set aside the impugned judgment of the Tribunal and allow these appeals without costs.
The reason why we are not awarding costs in favour of the appellants is because of a specific objection by Mr. P.P. Rao that these posts have not been included in Schedule II by amending the said Schedule.
In respect of this, the Union of India persisted in the argument that they had been included in Schedule II.
Of Course after the Gazette Notification dated 10.9.92 the position may be different.
But that does not mean that the earlier incorrect statements by the Union of India could be overlooked.
Appeals allowed.

dataset_name: IN-Abs

summary:
35 posts in super time grade of Central Health Services were sanctioned and proposals were sent to the Union Public Service Commission(UPSC) for convening departmental Promotion Committee (DPC) meetings for selection of candidates.
UPSC approved to amend Rule 4(6) of Central Health service Rules of 1982.
It also approved the method recruitment, field of selection and principles of seniority to fill up the 35 posts as one time measure in the absence of notified recruitment rules.
The Commission also stipulated that these 35 posts were to be treated as common posts to be included in the category of floating posts for the teaching and non teaching sub cadres mentioned in Rule 4(6) of Central Health Services Rules, 1982.
The eligibility condition stipulated was three years as Professor failing which 17 years of regular service in Group `A '.
The Communication of UPSC together with the eligibility list of Professors was circulated and errors/objections etc.
were to be intimated to the Ministry within one month.
The DPC met and selected candidates.
Respondent No.1 was assigned 14th rank and Respondent No.3 was assigned 4th rank.
The selected candidates were promoted and appointed.
Respondent No.1 filed an application before the Central Administrative Tribunal claiming that he was senior to respondent No.3 and others doctors and since the promotion was only on the basis of seniority and directed that Respondents arrayed in the application before it.
Being aggrieved by the Tribunal 's order, Union of India preferred the first of the two appeals.
Respondent No.3 in that appeal has preferred the other appeal.
On behalf of the appellants/respondent No.3, it was contended that Rule 4(10)(ii) and (iii) as amended merely prescribed the procedure for preparation of eligibility test; that the procedure has not been prescribed in any other Rule as the posts were created as floating posts: that the posts did not pertain to any particular super speciality or sub cadre if Professor/Director and so the criteria for preparation of eligibility list gad to be prescribed for determining inter se ranking between the sub cadres; that merely because Rule 4(10)(iii) contained the word `suitability ' it did not supersede, alter or amend the criteria for selection and that the word `suitability ' has to be understood in the light of the guidelines of DPC.
Allowing the appeals, this Court, HELD: 1.1.
If there is to be an assessment of merit, the principle of selection is involved.
on the contrary, if it were merely a seniority cum fitness there is no need to associate the Union public Service Commission as pointed out in the guidelines.
All these lead only to one conclusion that these are selection posts.
That is dealt with apart from Rule 4, sub rule (10), clause (iii), and also under paragraph 6.1.2 of the guidelines issued by the Government of India.
According to the guidelines the Departmental Promotion Committee is to devise its own method and procedure for objective assessments of suitability of candidates.
It is note worthy in Paragraph 6.3.1 that the procedure for the preparation of the panel for promotion by the Departmental promotion Committee is delineated.
[51 C,D] 1.2.
Paragraph 7 of the guidelines deals with non selection method and it dispenses with the requirement to make a comparative assessment of the records.
In such a case what is required is to categorise the officers as fit or not yet fit for promotion on the basis of assessment of the record of service.
Therefore, the word "suitability" in Rule 4(10)(iii) having regard to the nature of the post and grade could only mean suitability for the purposes of being selected to the said post.
[51 G, H; 52 A] 2.
It is a common case between the parties that these 35 floating posts were created by sub rule 10 of rule 4 in a addition to the authorised strength.
If as per the rule, for the post falling under authorised strength the method of selection is adopted it must equally apply to the post created in addition to the authorised strength.
A careful reading of Rule 8(4)(ii) reveals that departmental promotion to higher post in the respective special cadres and specialities within the sub cadre concerned shall be made on the basis of selection on merit.
It implies that, should vacancy arise in a particular speciality , this method is to be adopted.
In contradistinction to this, under Rule 4(10)(iii) even though one of the floating or common posts may be held by a particular person of a particular speciality, the said post can go to a person not belonging to that speciality.
Comprises of 29 specialities.
Thus it follows the word "selection" used in Rule 8 (4)(ii) is with reference to inter se merit of persons belonging to a particular speciality with regard to the vacancy occurring in that speciality.[52 D H] 3.
The first respondent was served with a copy of letter dated 3.11.1988 in which the appellant clearly stated that the 20 posts of Director/Professor of super time grade are to be filled by selection method viz. merit with regard to seniority.
Therefore, the decision of Government of India had been conveyed to the first respondent and he should have immediately voiced his protest.
Of course, the failure to protest would not deprive him of a legitimate right if he is entitled to in law.
[53 A,B] 4.
After examination of the character roll of the senior most eligible officers the committee assessed the officers.
The first respondent was rated as "very good" while the rating for respondents 2 to 5 was outstanding".
So they go en bloc above the first respondent since the first respondent is merely "very good".
This is because of the application of clause Ii of paragraph 6.3.1.
of the guidelines.
It was on this basis the Departmental Promotion Committee assigned rank No. 14 to the first respondent.
Pursuant to this the President of India issued the order of promotion dated 17th January, 1990.
Paragraph 3 of the order clearly states that the promotions will be personal to the officers concerned and the posts presently held by them will stand upgraded to the super time grade in the scale in terms of the Ministry 's order dated 15.3.1989.
Hence the Tribunal was in error in merely adopting seniority as the basis of promotion and not merit.
[53 C G]


judgement:
tion (Crl.) No. 1061 of 1982.
(Under Article 37 of Constitution of India) Prem Bhai and Prem Singh, Commnr.
Supreme Court, Justice B.L. Loombha, Chairman, Legal Aid, Advisory Board, U.P., M.K. Ramamurthi, B. Datta, Yogeshwar Prasad, Ms. Chandan Ramamurthi, M.A. Krishnamoorthy, Ms. Rachna Joshi, D.D. Sharma, A.S. Pundir, R.P. Srivastava, S.N. Terdol, Hemant Sharma, Ms. Anil Katiyar, C.V.S. Rao and Ms.
Sangeeta Aggarwal for the appearing parties.
The following Order of the Court was delivered: On the basis of a letter received from Banwasi Seva Ashram operating in Mirzapur District of Uttar Pradesh Writ Petition (Criminal) No. 1061/82 under Article 32 of the Constitution of India was registered.
Meanwhile the National Thermal Power Corporation Limited (NTPC) decided to set up a super thermal plant on part of the lands which were subject matter of the writ petition.
NTPC got itself impleaded as a party in the writ petition and claimed that the completion of the project was a time bound programme and as such the land earmarked for the project be made free from prohibitive directions of this Court in the writ petition.
The writ petition was disposed of by an order dated November 20, 1986.
This Court issued comprehensive directions and appointed a Board of Commissioners to supervise the implementation of the said directions.
This Court has been monitoring the project during all these years in terms of the directions issued on November 20, 1986.
By this order we are finally disposing of the proceedings and the monitoring process so far as the NTPC is concerned.
The directions dated November 20, 1986 relevant for this purpose are as under: "(1) So far as the lands which have already been declared as reserved forest under Section 20 of the Act, the same would not form part of the Writ Petition and any direction made by this Court earlier, now or in future in this case would not relate 860 to the same.
In regard to the lands declared as reserved forest, it is, however, open to the claimants to establish their rights, if any, in any other appropriate proceeding.
We express no opinion about the maintainability of such claim." "(5) The land sought to the acquired for the Rihand Super Thermal Power Project of the NTPC shall be freed from the ban of dispossession.
Such land is said to be about 153 acres for Ash Pipe Line and 1643 acres for Ash Dyke and are located in the villages of Khamariya, Parbatwa, Jheelotola, Dodhar and Jarha.
Possession thereof may be taken,. ., but such possession should be taken in the presence of one of the commissioners who are being appointed by this order and a detailed record of the nature and extent of the land, the name of the person who is being dispossessed and the nature of enjoyment of the land and all other relevant particulars should be kept for appropriate use in future.
Such records shall be duly certified by the Commissioner in whose presence possession is taken and the same should be available for use in all proceedings that may be taken subsequently.
The NTPC has agreed before the Court that it shall strictly follow the policy on "facilities to be given to land oustees" as placed before the Court in the matter of lands which are subjected to acquisition for its purpose.
The same shall be taken as an undertaking to the Court.
" Mr. Datta learned senior advocate appearing for the NTPC has stated that the NTPC has already taken actual/symbolic possession of 1375 acres of land.
In respect of 1004 acres of the said land a notification under Section 4 of the (hereinafter called `the Act ') was issued and the proceedings for declaring the said area as reserved forest were undertaken.
The remaining 371 acres were part of Gaon Sabha land and ownership in the said land vested in the State Government.
According to Mr. Datta this land measuring 1375 acres is under the possession of NTPC and the project construction is in progress.
Mr. Ramamurthy, on the other hand, has contended that the actual possession of whole of the area is not with the NTPC and the Adivasi/land owners are still in possession of their respective holdings.
861 Mr. Datta further states that apart from 1375 acres, mentioned above, the NTPC has yet to obtain possession of 465 acres of land which is reserved forest under Section 20 of the Act.
In view of the directions quoted above the lands which have been declared as reserved forest under the Act are not the subject matter of the writ petition and as such no direction can be issued by this Court in that respect.
In this order, we are concerned with 1004 acres of land which is subject matter of Section 4 Notification under the Act.
We have to ensure that the rights of the oustees are determined in their respective holdings and they are properly rehabilitated and adequately compensated.
According to the summary of rehabilitation package filed on the record by Mr. Datta there are 678 families which have been ousted from the land.
Mr. Ramamurthy, however states that there are more than 1500 families which are likely to be affected by the take over of 1004 acres of land by the NTPC.
We direct that the following measures to rehabilitate the evictees who were in actual physical possession of the lands/houses etc.
be taken by the NTPC in collaboration with the State Government.
The NTPC shall submit a list of the evictees claimants to the District Judge, Sonebharda before April 15, 1992.
Mr. Prem Singh shall also submit the list of the evictees to the District Judge by April 15, 1992.
The District Judge Sonebhadra shall be the authority to finalise the list of the evictees.
One plot of land measuring 60 ' x 40 ' ' to each of the evictee families be distributed for housing purposes through the district administration.
Mr. Datta has informed us that the plots of the said measurements have already been given to 641 families.
We direct that the remaining evictees be also given the plots.
Shifting allowance of Rs. 1500 and in addition a lumpsum rent of Rs. 3000 towards housing be given to each of the evictee families.
Free transportation shall be provided for shifting.
Monthly subsistence allowance equivalent to loss of net income from the acquired land to be determined by the District Judge Sonebhadra subject to a maximum of Rs. 750 for a period of 10 years.
The said 862 payment shall not be linked with employment or any other compensation.
Unskilled and semi skilled posts in the project shall be reserved for the evictees subject to their eligibility and suitability.
7.The NTPC shall give preference to the oustees in employment in class III and IV posts under its administration subject to their suitability and eligibility.
The evictees be offered employment through the contractors employed by the NTPC.
The jobs of contractors under the administration of the NTPC be offered to the evictees.
The shops and other business premises within the NTPC campus be offered to the evictees.
The NTPC shall operate for the benefit of the evictees selfgenerating employment schemes such as carpentary training (free tools to be provided after completion of training), carpet weaving training, sericulture, masonary training, dairy farming, poultry farming and basket weaving training etc.
The NTPC shall provide facilities in the rehabilitative area such as pucca roads, pucca drainage system, hand pumps, wells, portable water supply, primary school, health centre, Panchayat Bhavan, electricity connections, bank and Sulabh Sauchalaya complex etc. 13.
The NTPC shall also provide hospitals, schools, adult education classes and sports centres for the evictees.
The Deputy Commissioner Sonebhadra shall supervise and ensure that the above rehabilitation measures directed by us are fully complied with by the NTPC and other authorities.
As regards compensation in respect of lands, crops etc.
Mr. Datta states that crop compensation at Rs. 850 per acre per year has been paid to the oustees.
He states that a sum of Rs. 16,44,529.68 paise has been paid to the oustees in this respect.
He further states that Rs. 1 crore and Rs. 507500 have further been deposited by the NTPC with the State 863 Government on March 13, 1991 and January 20, 1992 respectively.
According to him out of the said amount, Rs. 48,35,649.17 paise have so far been paid to the oustees as land compensation at the rate of Rs. 10,000 per acre.
It is not disputed that Rs. 850 per acre per year for the crops and Rs. 10,000 per acre for the land has been determined as provisional compensation.
We direct that the provisional compensation at the above rates be paid to the oustees, if not already paid, within 8 weeks from today.
In this respect we further issue the following directions: (a) The District Judge, Sonebhadra shall be authority to determine the compensation in respect of land, crop, house and any other legitimate claim based on existing rights of the oustees.
(b) Mr. Prem Singh, Commissioner along with the Project Officer of the NTPC and Sarpanch of the area concerned shall verify the extent of the property of the oustees who have been or are likely to be evicted from the actual physical possession of the lands/houses etc.
It has been stated before us that such verification can be done within a period of two months.
We direct that the verification be completed before April 15, 1992.
The rights determined by Mr. Prem Singh and party shall be subject to the final approval of District Judge, Sonebhadra.
(c) The District Judge, Sonebhadra shall issue notices to all the claimants before May 15, 1992 asking them to file their respective claims for compensation.
The evictees, may also on their own, whether they have received provisional compensation or not prefer their claims for compensation to the District Judge Sonebhadra before August 1, 1992.
(d) The District Judge Sonebhadra shall finally decide all the compensation claims expeditiously preferably before March 31, 1993.
The orders passed by the District Judge in each case shall be treated as the orders under Section 17 of the Act as amended by the Uttar Pradesh Act 25 of 1965.
(e) Any party, not satisfied with the order of the District Judge, may have recourse to any remedy available under law.
With the above directions we finally close the proceedings in respect of the lands in possession of the NTPC.
R.P. Petition disposed of.

summary:
This Court, by its order dated 20.11.1986, while disposing of Writ Petition (Crl.) No. 1061 of 1982, gave comprehensive directions for rehabilitation of Adivasis/landholders affected by the Rihand Super Thermal Power Project to be set up by the National Thermal Power Corporation Limited (NTPC), and appointed a Board of Commissioners to supervise the implementation of the said directions.
Since then this Court was monitoring the project.
Disposing of the proceedings and the monitoring process so far as the NTPC was concerned, this Court, HELD: In order to ensure that the rights of the oustees are determined in their respective holdings and they are properly and adequately compensated, the NTPC shall take, in collaboration with the State Government, the following measures to rehabilitate the evictees who were in actual physical possession of the lands/houses etc.
: (i) The NTPC shall submit a list of the evictees claimants to the District Judge, Sonebhadra who shall be the final authority to finalise the list.
(ii) One plot of land measuring 60 ' x 40 ' to each of the evictee families be distributed for housing purposes through the district administration.
(iii) Shifting allowance of Rs. 1500 and in addition a lumpsum rent of Rs. 3000 towards housing be given to each of the evictee families.
858 (iv) Free transportation shall be provided for shifting.
(v) Monthly subsistence allowance equivalent to loss of net income from the acquired land to be determined by the District Judge Sonebhadra subject to a maximum of Rs. 750 for a period of 10 years.
The said payment shall not be linked with employment or any other compensation.
(vi) Unskilled and semi skilled posts in the project shall be reserved for the evictees.
(vii) The NTPC shall give preference to the oustees in employment in class III and IV posts under its establishment.
(viii) The evictees be offered employment through the contractors employed by the NTPC.
(ix) Jobs of contractors under the administration of the NTPC be offered to the evictees.
(x) The shops and other business premises within the NTPC campus be offered to the evictees.
(xi) The NTPC shall operate for the benefit of the evictees selfgenerating employment schemes such as carpentry training (free tools to be provided after completion of training) carpet weaving training, sericulture, masonary training, dairy farming, poultry farming and basket weaving training etc.
(xii) The NTPC shall provide facilities in the rehabilitative area such as pucca roads, pucca drainage system, handpumps, wells, portable water supply, primary school, adult education classes, health centre, Panchayat Bhavan, sports centres, electricity connections, bank and sulabh Sauchalaya complex etc.
The Deputy Commissioner Sonebhadra shall supervise and ensure that the rehabilitation measures are fully complied with.
(xiii) As regards compensation for crops and land, the provisional compensation at the rate of Rs. 850 per acre per year for crops and Rs. 10,000 per acre for the land be paid to the oustees.
[pp.861B H; 862A H; 863A B] 859 The District Judge Sonebhadra shall be the authority to determine the compensation.
The orders passed by the District Judge shall be treated as orders under section 17 of the Indian Forest Act, as amended by U.P. Act 25 of 1965.
[p.863B,F]


judgement:
Special Leave Petition (C) No. 4325 of 1992.
From the Judgment and Order dated 6.3.1992 of the Punjab and Haryana High Court in Civil Revision No. 2830 of 1991.
Dr. A.M. Singhvi and Ms. Kirti Misra for the Appellant.
D.V. Sehgal, S.M. Sarin, P.N. Puri, Ranbir Singh Yadav and G.K. Bansal for the Respondent.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This petition for special leave to appeal arises out of proceedings for eviction initiated by the respondent (landlord) against the petitioner (tenant) under section 13A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as `the Act '), as amended by Act No. 2 of 1985.
The proceedings relate to a residential house in Chandigarh which was let out to the petitioner by the respondent.
The respondent was initially employed as Accounts Officer with the Finance Department of the Government of Haryana.
In 1969, he went on deputation with the Haryana Agricultural University (hereinafter referred to as `the University ').
His services were transferred to the University by the Government of Haryana with effect from November 1, 1975, and while he was employed on the post of Comptroller in the University he retired from service with effect from February 28, 1991.
Claiming to be a `specified landlord ' within the meaning of section 2(hh) of the Act, the respondent moved a petition seeking eviction of the petitioner under section 13A of the Act before the Rent Controller, Chandigarh.
The said petition was dismissed by the Rent Controller by order dated August 5, 1991 on the view that the respondent did not fall within the ambit of the definition of `specified landlord ' since he had failed to show that he was holding or has held an appointment in a public service or post in connection with the affairs of the Union or of the State.
The respondent filed a revision petition before the High Court under section 18 A(8) of the Act which was allowed by the High Court by judgment dated March 6, 1992.
The High Court held that the respondent, at the time of his retirement from the post of Comptroller in the University, was holding an appointment in connection with the affairs of the State and hence he is a specified landlord within the meaning of section 2(hh) of the Act.
The High Court further found that the respondent had fully satisfied the conditions as contained in section 13 A of the Act and he was entitled to recover the possession of the premises in dispute from the petitioner.
Allowing the revision, the High Court set aside the order of the Rent Controller and accepted the petition filed by the respondent under section 13 A of the Act for ejectment of the petitioner.
The High Court further directed as under: "However, the respondent is allowed one month 's time to vacate the premises provided he pays the entire arrears of rent within 15 days from today, and also files an undertaking with the Court of the Rent Controller to the effect that he shall hand over the vacant possession of the premises on the expiry of aforesaid period.
" On March 16, 1992, the petitioner moved a petition in the high Court under section 151 CPC seeking three months, time to vacate the house and for waiving the requirement of filing of an undertaking.
The said petition was rejected by the High Court by order dated March 18, 1992.
Thereafter, the petitioner submitted an undertaking dated March 20, 1992 before the Rent Controller wherein the petitioner after referring to the direction contained in the order of the High Court dated March 6, 1992 gave the following undertaking: "That the respondent hereby gives undertaking that he will vacate the premises and shall handover the vacant possession of the premises on the expiry of one month from 6.3.92 as per the order of Hon 'ble High Court, subject to his rights for filing SLP in the Hon 'ble Supreme Court against the order of eviction.
The respondent has already sent draft for the rent for the month of March 1992 to the petitioner and he is not in arrears of rent.
" On March 21, 1992, the petitioner filed the special leave petition under Article 136 of the Constitution in this Court.
On the said petition the following order was passed on March 26, 1992: "To come up in normal course.
In the meantime, no dispossession to be effected.
" On April 9, 1992, an order was passed in the following terms: "Issue notice returnable within two weeks.
In the meantime, stay of eviction to continue." .
In response to the said notice, the respondent filed a counter affidavit on April 18, 1992 wherein an objection has been raised that in view of the undertaking given by him the petitioner cannot invoke the jurisdiction of this Court under Article 136 of the Constitution.
Shri D.V. Sehgal, the learned senior counsel appearing for the respondent, has submitted that in view of his having taken the benefit of direction contained in the order of the High Court allowing him one month 's time to vacate the premises on his filing an undertaking that he shall hand over vacant possession of the premises on the expiry of aforesaid period and his having submitted a written undertaking in accordance with the said direction, the petitioner is precluded from assailing the judgment of the High Court by invoking the jurisdiction of this Court under Article 136 of the Constitution.
Shri Sehgal has urged that the fact that the petitioner has qualified his undertaking by using the words "subject to his rights for filing SLP in the Hon 'ble Supreme Court against the order of eviction" would not alter the position.
In support of his aforesaid submission Shri Sehgal has placed reliance on the decisions of this Court in Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker & Ors., [1989] Supp.
2 SCC 655; Vidhi Shanker vs Heera Lal, [1987] Supp.
SCC 200 and Ramchandra Jai Ram Randive vs Chandanmal Rupchand & Ors., [1987] Supp.
SCC 254.
Dr. A.M. Singhvi, the learned counsel appearing for the petitioner, has, however, laid stress on the fact that the undertaking had to be given by the petitioner in the peculiar circumstances arising on account of this Court being closed due to vacations from March 16, 1992 to March 20, 1992.
Dr. Singhvi has submitted that the petitioner has not taken any undue advantage by giving the undertaking inasmuch as before giving the under taking, he had moved an application for extension of time before the High Court wherein he had clearly indicated that he intended to file a special leave petition in this Court against the order of the High Court dated March 6, 1992 and this was also expressly stated in the undertaking filed in the Court wherein it is mentioned that the undertaking was subjected to his right to file the special leave petition in this Court against the order of eviction.
Dr. Singhvi has urged that in view of the aforesaid facts and circumstances the decisions on which reliance has been placed by Shri Sehgal would have no application to the present case.
In view of the judgment of the High Court allowing the petition for eviction filed by the respondent, the petitioner was liable to be evicted from the premises forthwith.
Under the direclions given by the High Court, the petitioner could continue in occupation of the premises for a period of one month on his (i) paying the entire arrears of rent within 15 days from the date of the judgment; and (ii) filing an undertaking with the court of Rent Controller to the effect that he shall hand over the vacant possession of the premises on the expiry of the period of one month.
The petitioner made an effort to obtain extension of time for vacating the premises without furnishing the undertaking and he filed a petition for the purpose before the High Court.
The said petition was, however, dismissed by the High Court.
Having failed in his attempt to obtain extension of time for vacating the premises without furnishing an undertaking the petitioner had two options open to him, (i) to avail the protection from eviction from the premises for 3a period of one month by tiling an undertaking as directed, or (ii) not to avail the said protection and run the risk of immediate eviction.
The petitioner chose the first option.
In order to avail the protection from eviction from the premises for a period of one month he filed the requisite undertaking in the court of the Rent Controller within the period of 15 days prescribed under the directions of the High Court.
The statement in the undertaking that it was subject to the rights of the petitioner to file special leave petition in this Court against the order of eviction, does not, in our view, have any effect on the legal consequences flowing as a result of the filing of the undertaking by the petitioner.
By furnishing the said undertaking the petitioner elected to avail the protection from eviction from the premises and he enjoyed the said protection till the passing of the order by this Court on March 26, 1992, staying dispossession of the petitioner.
Having elected to avail the protection from eviction under the order dated March 6, 1992 passed by the High Court, by filing the requisite undertaking, the petitioner cannot be permitted to assail the said order.
Law does not permit a person to both approbate and reprobate.
This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage".
[See: Verschures Creameries Ltd. vs Hull and Netherlands Steamship Co. Ltd., (1921) 2 R.B. 608, at p.612, Scrutton, L.J].
According to Halsbury 's Laws of England, 4th Edn.
,Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside".
(para 1508).
In Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker & Ors.(supra), this Court was dealing with a similar situation.
The High (Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one year 's time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time.
The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by December 31, 1985, i.e., to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court".
It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking, and it was observed "This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year 's time.
a We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filing the undertaking and taking the different stand, in applications under Article 136 of the Constitution." (p.655) Similarly in Vidhi Shanker vs Heera Lal (supra) and Ramchandra Jai Ram Randive vs Chandanmal Rupchand & Ors.
(supra), this Court declined to exercise its discretion under Article 136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking.
We are, therefore, of the opinion that the petitioner, having given an undertaking in pursuance to the directions given by the High Court in the Judgment dated March 6, 1992, and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court.
In that view of the matter, we do not consider it necessary to deal with the submissions urged by Dr. Singhvi that the respondent, being an employee of the University at the time of his retirement, was not a 'specified landlord ' under section 2(hh) of the Act.
The special leave petition is, accordingly, dismissed but without any orders as to costs.
V.P.R. Petition dismissed.

summary:
A residential house was let out to the petitioner by the respondent.
The respondent was initially employed as Accounts Officer with the Finance Department of the Government.
In 1969, he went on deputation with the Haryana Agricultural University.
While he was employed on the post of Comptroller in the University he retired from service with effect from February 28, 1991.
Claiming to be a "specified landlord" within the meaning of Section 2(hh) of the East Punjab Urban Rent Restriction Act, 1949, the respondent moved a petition seeking eviction of the petitioner under section 13A of the Act before the Rent Controller.
The petition was dismissed by the Rent Controller on the view that the respondent did not fall within the ambit of the definition of "specified landlord", since he failed to show that he was holding or had held an appointment in a public service or post in connection with the affairs of the Union or of the State.
The respondent filed a revision petition before the High Court under section 18 A(8) of the Act, which was allowed by the High Court on March, 1992.
The High Court held that the respondent, at the time of his retirement from the post of Comptroller in the University, was holding an appointment in connection with the affairs of the State and hence he was a specified landlord within the meaning of section 2(hh) of the Act and that the respondent had fully satisfied the conditions as contained in section 13 A of the Act and he was entitled to recover the possession of the premises in dispute from the petitioner.
The High Court allowed one month 's time for the petitioner to vacate the premises subject to his paying the entire arrears of rent within 15 days from the date of the order and filing an undertaking that he would hand over the vacant possession of the premises on the expiry of the aforesaid period.
On March 16, 1992, the petitioner moved a petition in the High Court under section 151 CPC seeking three months ' time to vacate the house and for waiving the requirement of filing of an undertaking.
The High Court rejected the petition.
Thereafter, the petitioner submitted an undertaking dated March 20, 1992 before the Rent Controller wherein the petitioner referred to the direction contained in the order of the High Court dated March 6, 1992.
On March 21, 1992, the petitioner filed the special leave petition under Article 136 of the Constitution in this Court and succeeded to get an order staying dispossession on March 26, 1992.
In response to the notice issued on the Special Leave Petition, the respondent filed a counter affidavit raising an objection that in view of the undertaking given by the petitioner, the jurisdiction of this Court under Article 136 of the Constitution could not be invoked.
The respondent landlord submitted that in view of petitioner tenant 's having taken the benefit of direction contained to the order of the High Court allowing him one month 's time to vacate the premises on his filing an undertaking that vacant possession of the premises would be handed over on the expiry of the period and his having submitted a written undertaking in accordance with the direction, the petitioner was precluded from assailing the judgment of the High Court by invoking the jurisdiction of this Court under Article 136 of the Constitution.
The petitioner tenant submitted that he did not take any undue advantage by giving the undertaking; that prior to the undertaking, he had moved an application for extension of time before the High Court wherein he had clearly indicated that he intended to file a special leave petition in this Court against the order of the High Court dated March 6, 1992 and that it was also expressly stated in the undertaking filed in the Court wherein it is mentioned that the undertaking was subject to his right to file the special leave petition in this Court against the order of eviction.
Dismissing the special leave petition, this Court, HELD: 1.01 Law does not permit a person to both approbate and reprobate.
This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument.
[263 F] 1.02 The petitioner, having given an undertaking in pursuance to the directions given by the High Court in the judgment dated March 6, 1992 and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court.
[264 H] 1.03 The statement in the undertaking, that it was subject to the rights of the petitioner to file special leave petition in this Court against the order of eviction, does not have any effect on the legal consequencew flowing as a result of the filing of the undertaking by the petitioner.
[263 D] Verschures Creameries Ltd. vs Hull and Netherlands Steamship Co. E Ltd., at p. 612; Thacker Hariram Motiram vs Balkrishan Chatbrabhu Thacker & Ors., [1989] Supp.
2 SCC 655 and Vidhi Shanker vs Heera Lal 1987 Supp.
SCC 200; Ramchandra Jai Ram Randive vs Chandanmal Rupshand & Ors., [1987] Supp.
SCC 254, referred to.
Halsbuly 's Laws of England, 4th Edn.
16, para 1508, referred to.


judgement:
Civil Appeal No 3244 of 1988.
From the Judgement and Order dated 8.7.1988 of the Karnataka High Court in W.A. No.560 of 1983.
K.N. Bhat S.K. Kulkarni and Ms. Kiran Suri for the Appellant S.N Bhat M.Veerappa and K.H Nobin Singh for the respondents.
The Judgment of the Court was delivered by N.P. SINGH, J.
This appeal has been filed against an order passed by the High Court, on a writ application filed by the petitioner respondent (hereinafter referred to as "the respondent") quashing the order of termination of the service of the respondent.
The respondent was appointed as a Lecturer in Surgical Oncology on 3rd July, 1981.
He was to be on probation for a period of one year from the date of his appointment which period could have been extended at the discretion of the competent authority.
One of the conditions provided is as follows : "Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to be discharged from service.
" Before the expiry of one year, the impugned order of termination was issued on 30th January, 1982 saying: "In accordance with the decision of the Governing Council at its meeting held on 28th January, 1982 the services of Dr. Pandurang Godwalkar, Lecturer in Surgical Oncology (on probation), Kidwai Memorial Institute of Oncology, Bangalore are terminated with effect from the afternoon of 30 January, 1982, as per Rule 4 of the Conditions of Service Rules (Annexure 2 Chapter I) of the Institute.
He is paid one month 's salary in lieu of one month 's notice required as per rules." Although the order under challenge was order of termination simpliciter, the validity thereof was questioned by the respondent on the ground that an order of dismissal had been passed in the garb of an order of termination.
According to the respondent, some complaints had been made against him to the Director of the Institute who instead of initiating a departmental proceeding on basis of charges levelled against the respondent, put up the matter before the Governing Council of the Institute for termination of the service of the respondent during the period of probation.
The learned Judge in view of the assertions made on behalf of the respondent directed the institute to produce the original records including certain documents and papers which had been marked as confidential.
From the note of the Director it appeared that complaints had been made in respect of performance of the duties by the respondent.
In that note it was also mentioned that the respondent was unsympathetic towards the patients.
It had also brought to the notice of the Governing Council that the respondent had attempted to obtain the signatures.
of some of the patients on the petitions stating that he was a good doctor.
On one occasion it was reported that the respondent had taken away a girl on his scooter and brought her back late in the night.
The said girl was an attendant to a patient in the hospital.
The learned Judge came to the conclusion that as the service of the petitioner had been terminated because of the complaints made against him it really amounted to his removal for the misconduct alleged in the note of the Director.
According to the learned Judge the Institute should have initiated a departmental proceeding in respect of the alleged charges and only after due enquiry any action should have been taken.
There is no dispute that the service of the respondent had been terminated during the period of probation The appointment of the respondent was with a clear condition that failure to complete the period of probation to the satisfaction of the competent authority shall render him liable to be discharged from the service.
Relevant part of Rule 4 of the Conditions of Service Rules is as follows : "4. TERMlNATION : 1.
All appointments shall be terminable on a notice in writing either by the appointing authority or the employee without assigning any reason as set below : a) During the period . one month of probation.
b) After completion of the period 1 of probation. months.
c) The notice referred to in rule (1) above shall not be necessary if in lieu thereof an amount equal to the pay and allowance for the period of notice is paid. . . . " Generally in connection with an order of termination, a question is raised before the court as to what is the motive behind the termination of the service of the employee concerned whether the reason mentioned in the order of termination has to be accepted on its face value or the background in which such order of termination simpliciter has been passed should be examined to find out as to whether an officer on probation or holding a temporary appointment has been, in fact, dismissed from the service without initiating any departmental enquiry.
If an employee who is on probation or holding an appointment on temporary basis is removed from the service with stigma because of some specific charge, then a plea cannot be taken that as his service was temporary or his appointment was on probation, there was no requirement of holding any enquiry, affording such an employee an opportunity to show that the charge levelled against him is either not true or it is without any basis.
But whenever the service of an employee is terminated during the period of probation or while his appointment is on temporary basis, by an order of termination simpliciter alter some preliminary enquiry it cannot he held that as some enquiry had been made against him before the issuance of order of the termination it really amounted to his removal from service on a charge as such penal in nature When an appointment is made on probation, it presupposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation.
He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed.
The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken.
If the decision is taken, to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment.
It need not be said that the appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.
Even it such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary enquiry or examination of some allegations had been made that will not vitiate the order of termination.
Reference in this connection may be made to the case of Oil and Natural Gas Commission vs Dr. Mohd. section Iskender Ali; , where it was pointed out that a temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained" .
It was also said that even if misconduct negligence inefficiency may be the motive or the influencing factor which induced the employer to terminate the service of the employee which such employe admittedly had under the terms of the appointment such termination cannot be held to be penalty or punishment.
Same view has been reiterated in connection with appointment on temporary or ad hoc basis in the cases of Ravindra Kumar Misra vs U.P. State Handloom Corpn.
Ltd, ; State of Uttar Pradesh vs Kaushal Kishore Shukla, ; and Triveni Shankar Saxena vs State of U.P., Judgements Today On behalf of the respondent reliance was placed on the case of Anoop Jaiswal vs Government of India, ; In that case the service of the appellant had been terminated during the period of probation.
On the materials on record it was held by this Court that the order of termination really amounted to punishment because the real foundation of the action against the appellant was the act of misconduct on June 22, 1981.
The aforesaid judgment is of no help to who respondent because in that case a clear finding was recorded by this Court that the service of the appellant had been terminated because of a particular misconduct alleged against him which had never been enquired into.
So far the facts of the present case are concerned the Governing Council examined the different reports in respect of the respondent during the period of probation and considered the question as to whether he should be allowed to continue in the service of the Institute.
The decision appears to have been taken by the Governing Council on the total and overall assessment of the performance of the respondent, in terms of the condition of the appointment and Rule aforesaid.
Accordingly the appeal is allowed and the judgment of the High Court is set aside.
However, in the circumstances of the case, there will be no order as to costs.
G.N Appeal allowed.

summary:
The respondent was appointed as a Lecturer in the appellant Institute and was put on probation for one year.
During the probation period his services were terminated.
The respondent challenged the same before the High Court by way of a Writ Petition contending that actually order of dismissal has been passed in the garb of an order of termination; and that the Director of the institute instead of initiating a departmental proceeding on the basis of some charges levelled against him, placed the matter before the governing council of the Institute termination of his services.
The High Court gave its finding that since the service of the petitioner had been terminated because of the complaints made against him, it really amounted to his removal for alleged misconduct and so the institute should have initiated a departmental proceeding and only after due enquiry any action should have been taken.
Being aggrieved by the High Courts order, the appellant Institute has preferred the present appeal.
Allowing the appeal, this Court, HELD: 1.1.
When an appointment is made on probation, it pre supposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation.
He is to be confirmed after the expiry of probation only when his service during the period of probation is found to be satisfactory and he is considered suitable for the post against which he has been appointed.
The principle of tearing of the veil for finding out the real nature of the order shall be applicable only in a case where the Court is satisfied that there is a direct nexus between the charge so levelled and the action taken.
If the decision is taken to terminate the service of an employee during the period of probation, after taking into consideration the overall performance and some action or inaction on the part of such employee then it cannot be said that it amounts to his removal from service as punishment.
The appointing authority at the stage of confirmation or while examining the question as to whether the service of such employee be terminated during the continuance of the period of probation, is entitled to look into any complaint made in respect of such employee while discharging his duties for purpose of making assessment of the performance of such employee.
[254 E H; 255 A] 1.2.
Even if such employee while questioning the validity of an order of termination simpliciter brings on the record that some preliminary inquiry or examination of some allegations had been made, that will not vitiate the order of termination.
[255 B] Oil and Natural Gas Commission vs Dr. Mohd section Iskender Ali ; ; Ravindra Kumar Misra vs U.P. State Handloom Corpn.
Ltd., [1987] suppl.
SCC 739; State of Uttar Pradesh vs Kaushal Kishore Shukla, ; and Triveni Shankar Saxena vs State of U.P., J.T. 1992 (1) S.C. 37, relied on.
Anoop Jaiswal vs Government of India, ; distinguished.