Bombay High Court
State Of Maharashtra & Anr vs Sachin S. Hundekari on 29 October, 2010
Author: Roshan Dalvi
Bench: Ranjana Desai, R. S. Dalvi
1 RPT.(ST).11490/10-WP.7955/06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
REVIEW PETITION (ST) NO.11490 OF 2010
IN
WRIT PETITION NO.7955 OF 2006
State of Maharashtra & Anr. ...Applicants/Petitioners
Vs.
Sachin S. Hundekari ...Respondent
Mr. V.A. Gangal, Sr. Counsel a/w. Mrs. M.P. Thakur
and Mr. Ashok Gade, Advocates for Petitioner
Mr. S.S. Patwardhan, Advocate for Respondent
CORAM: SMT. RANJANA DESAI &
SMT. ROSHAN DALVI, JJ.
Date of Reserving for Judgment: 11th October 2010
Date of Pronouncement of Judgment: 29th October 2010.
JUDGMENT (PER SMT. ROSHAN DALVI, J)
1. The only question to be determined in this Petition is essentially a question of law relating to the effect of a concession granted by Counsel on behalf of a party to Court which is not in accordance with law.
2. The Respondent is the grandson of a Freedom Fighter who was honoured under the Freedom Fighter scheme launched by the Union of ::: Downloaded on - 09/06/2013 16:35:29 ::: 2 RPT.(ST).11490/10-WP.7955/06 India. The widow of the Freedom Fighter who is the Respondent's grandmother nominated the Respondent for Government service.
3. The Respondent made an application for service. An inquiry report was called for. The inquiry report shows that the Respondent was dependent on the said widow, his grandmother. His grandmother had expired by then. The Respondent's application was rejected for nomination for Government service.
4. The Respondent filed the above Writ Petition challenging the order of the Petitioner herein dated 7th June 2005.
5. When the Petition came up for hearing the then Associate Advocate General representing the Government, being the Petitioner herein, submitted that in view of the peculiar facts of the case in which the rejection by the Government was hyper technical, the Government may be directed to provide appropriate employment to the Respondent herein. Consequently, the order dated 7th June 2005 impugned in the above Writ Petition was set aside by this Court and the Petitioner herein was directed to absorb the Respondent in any appropriate post on the basis of the nomination of his grandmother.
6. The Petitioner has sought review of the said order on the ground that that order could not have been passed since the requisites for appointment upon such nomination were not complied. It is contended by the Petitioner that the Employment Exchange was not intimated, the ::: Downloaded on - 09/06/2013 16:35:29 ::: 3 RPT.(ST).11490/10-WP.7955/06 newspaper advertisements were not given and consequently the circular of the Government dated 19th November 2003 for appointment of the Respondent herein was not complied and in the absence thereof the Respondent could not have been employed despite the nomination.
7. It is essentially contended by the Petitioner that the requisite concession of the Counsel on law does not bind the Petitioner.
8. This is settled law. In the case of Uptron India Ltd. Vs. Shammi Bhan & Anr. (1998) 6 SCC 538 this proposition of law has been specifically set out. In that case the provision of a Standing Order for automatic termination of services of an employee came up for consideration. The issue was settled in an earlier precedent by the Apex Court. The Counsel did not contest the point. It was contended that it was permissible in law to make provision in the Standing Orders for automatic termination.
Rejecting that contention it was held that it cannot be treated as a finding in view of the wrong concession by Counsel at that question of law. Such a concession cannot constitute a just ground for a binding precedent.
9. Following this case it was held in the case of Central Council For Research in Ayurveda & Siddha and Anr. Vs. Dr. K. Santhakumari (2001) 5 SCC 60 that since a wrong concession or admission on a question of law made before the Court by Counsel is not binding on his client, the opposite party cannot seek benefit on the basis of such concession. That was the case of promotion to a selection post of ::: Downloaded on - 09/06/2013 16:35:29 ::: 4 RPT.(ST).11490/10-WP.7955/06 Research Officer which was required to be made on inter se merit of the eligible candidates. Instead it was contended on behalf of the Council that the principle of seniority-cum-fitness was to be followed for promotion to that post. With a wrongful promotion not based on merit was sought to be instead it was held by the Supreme Court that the mistaken contention and concession of the Counsel do not bind it.
10.The case of Union of India and Ors. Vs. Mohanlal Likumal Punjabi & Ors. (2004) 3 SCC 628 was relating to preventive detention. A detention order passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was revoked by the Central Government not based upon the report of the Advisory Board and the operation of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) was not excluded. The question as to whether the challenge to order of detention could be validly made in subsequent Writ Petition for action under SAFEMA came up for consideration. The concessions made by Counsel to the challenge to the validity of the order of detention, which was incorrect in law, was held not binding upon the parties since the statutory provisions clearly provided otherwise. It was held following the case of Uptron India Ltd and Central Council (supra) that wrong concessions made by Counsel was not binding upon the parties.
11.In the case of Union of India & Anr. Vs. S.C. Parashar (2006) 3 SCC 167 the imposition of major and minor penalty upon a delinquent in a departmental inquiry came up for consideration. An amalgam of major ::: Downloaded on - 09/06/2013 16:35:29 ::: 5 RPT.(ST).11490/10-WP.7955/06 and minor penalties were imposed on the defaulter. The Government Counsel conceded before the High Court that the penalty was imposed under specific rules which was Rule 11 of the Central Civil Services (Conduct) Rules, 1964. Upon seeing that the intention of the punishing authority was not to impose minor penalty, it was held that the concession on question of law by Counsel does not bind the party.
12.It is contended by the Petitioner herein that the concession has been wrongly made. Whether or not rules and the law in respect of appointment of the Respondent herein were followed or not would have to be seen before the impugned order in the Petition is set aside. Consequently, it is seen that the Petition itself would have to be heard on merits, the concession of the Counsel notwithstanding.
13.Hence the Review Petition is allowed.
14.The order dated 14th March 2008 is set aside.
15.The Writ Petition shall be heard on merits by regular Court.
(SMT. ROSHAN DALVI, J.) (SMT. RANJANA DESAI, J.)
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