Arup Das & Ors. Vs. State of Assam & Ors.

Appeal: Special Leave Petition (Civil) No. of 2012 (Cc 27/2012)

Petitioner: Arup Das & Ors.

Respondent: State of Assam & Ors.

Apeal: Special Leave Petition (Civil) No. of 2012 (Cc 27/2012)

Judges: Altamas Kabir & Surinder Singh Nijjar, JJ

Date of Judgment: Jan 27, 2012

1. State of U.P. v. Raj Kumar Sharma [(2006) 3 SCC 330] (Para 11)
2. Prem Singh & Ors. v. Haryana State Electricity Board & Ors. [(1996) 4 SCC 319] (Para 6)
3. Madan Lal v. State of J&K [(1995) 3 SCC 486] (Para 7)
4. Union of India v. Ishwar Singh Khatri & Ors. [(1992) Supp.3 SCC 84] (Para 4)

ALTAMAS KABIR, J.
1. A short but interesting question of law arises in these Special Leave Petitions, as to whether appointments can be made in Government service beyond the number of vacancies advertised.
2. An advertisement dated 4th November, 2006, was published by the Director of Land Records and Survey, Assam, inviting applications for selection for admission in the Assam Survey and Settlement Training Institute in respect of 160 seats. About 12,000 candidates applied for the said advertised seats and a written test was conducted which was followed by a viva voce examination. The viva voce test was limited to only 560 candidates. The restriction of the vive voce test to only 560 candidates was challenged before the Gauhati High Court in W.P.(C)No.3419 of 2007, which was dismissed and Writ Appeal No.413 of 2007 preferred from the Order of the learned Single Judge was also dismissed. The Director of Land Records and Survey, Assam, published a select list of 160 candidates and sent the candidates for training. Subsequently, the Director sent three more lists, hereinafter referred to as ‘the second, third and fourth lists’, but the same were not approved by the Government. The Government’s refusal to approve the second, third and fourth lists against the seats available, was again challenged in Writ Petition Nos.3812 of 2010 and 2279 of 2011 on the ground that when vacancies were available, there was no bar in the same being filled up from the Select List of 560 candidates.
3. The aforesaid case sought to be made out on behalf of the Petitioners was contested by the Respondents on the ground that even if there were vacant seats available, the same could not have been filled up beyond the number of seats advertised as such action would be contrary to the law laid down by this Court relating to deviation from the contents of the advertisement.
4. The submissions made on behalf of the Writ Petitioners were rejected by the learned Single Judge upon holding that if any appointment was to be made beyond the number of seats advertised, the Director was required to publish a fresh advertisement for selecting the next batch of candidates in accordance with Rule 20 of the Rules in this regard. The learned Single Judge also observed that it was evident from the judgment and order dated 29th January, 2010 passed in W.P. (C) No.3909 of 2009, as well as the order dated 1st December, 2007 passed in Writ Appeal No.413 of 2007, that 560 candidates were called for the viva voce test for the 160 seats which had been advertised and if other candidates from the second, third and fourth lists were to be admitted, it would amount to depriving other candidates, who had not been called for the viva voce test because of the Government’s decision to limit the number of candidates in the written test, of an opportunity of being selected. Some of the candidates may have, in the meantime, acquired the eligibility to undergo such training. Relying on the decision of this Court in Union of India v. Ishwar Singh Khatri & Ors. [(1992) Supp.3 SCC 84] and several other judgments expressing the same view, the learned Single Judge held that filling up of vacancies over and above the number of vacancies advertised would be contrary to the provisions of Articles 14 and 16 of the Constitution. On the basis of the above, the learned Single Judge dismissed the said Writ Petitions.
5. The decision of the learned Single Judge was challenged by the Writ Petitioners in Writ Appeal No.132 of 2011 before the Division Bench of the Gauhati High Court, along with Writ Appeal No.151 of 2011, which were dismissed by the Division Bench of the Gauhati High Court by the judgment impugned herein dated 16.9.2011. Agreeing with the views expressed by the learned Single Judge, the Division Bench dismissed the Writ Appeals against which these Special Leave Petitions have been filed.
6. Appearing in support of the Special Leave Petitions, Mr. Joydeep Gupta, learned Senior Advocate, submitted that both the learned Single Judge and the Division Bench of the High Court had proceeded on the wrong premise that despite available vacancies, selection could not be made against the seats available beyond those mentioned in the advertisement. Mr. Gupta submitted that the legal position to the contrary had been clarified by this Court in Civil Appeal No.3423 of 1996, Prem Singh & Ors. v. Haryana State Electricity Board & Ors. [(1996) 4 SCC 319], where the following two questions fell for consideration, namely,
(i) Whether it was open to the Board to prepare a list of as many as 212 candidates and appoint as many as 137 out of that list when the number of posts advertised was only 62?
(ii) Whether the High Court was justified in quashing the selection of all the 212 candidates and appointment of 137?
7. While deciding the matter, this Court referred to various earlier decisions in which the view expressed by this Court that appointments or selections could not be made beyond the number of posts advertised, was reiterated. One of the decisions which was relied upon was the decision rendered by this Court in Madan Lal v. State of J&K [(1995) 3 SCC 486], where one of the questions which fell for consideration was whether preparation of a merit list of 20 candidates against 11 advertised vacancies was bad. The learned Judge observed that this Court had held that the said action of the Commission by itself was not bad, but at the time of giving actual appointments, the merit list was to be so operated that only 11 vacancies were filled up. It was further observed that the reason given for such a finding was that as the requisition was for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. The learned Judges went on to quote a passage from the decision in Madan Lal’s case (supra) which is extracted hereinbelow :-
‘It is easy to visualise that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the prospective candidates can easily find out from the Office of the Commission that the requisition for the proposed recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete. Consequently the actual appointments to the posts have to be confined to the posts for recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated as wait-listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose.’
8. Referring to the observations made in the aforesaid extract, the learned Judges went on to state that while making the aforesaid observations, this Court had agreed with the contention that while sending a requisition for recruitment to posts, the Government can keep in view not only actual vacancies then existing, but also anticipated vacancies. Based on its aforesaid findings, the learned Judges went on to observe as follows:-
25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.
26. In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2-11-1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the11 selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were made against future vacancies in this case on posts which were newly created must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though the High Court was right in the view it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs.
9. Mr. Gupta urged that in view of the fact that this Court had approved the right of the State to deviate from the advertisement published and to12 make appointments to posts falling vacant thereafter in exceptional circumstances only or in an emergent situation, the Director of Land Records and Survey, Assam, had not committed any illegality in publishing the second, third and fourth lists for the purpose of making appointments therefrom against the total number of known vacancies numbering 690. Mr. Gupta submitted that both the Single Judge and the Division Bench of the High Court had completely misconstrued the decision in Prem Singhs case (supra), although the same had been cited before them. Accordingly, the decisions, both of the Single Judge as well as of the Division Bench, were liable to be set aside with appropriate directions to the State Government and its authorities to take steps to fill up the total number of vacancies from the second, third and fourth lists published by the Director, Land Records and Survey, Assam.13
10. Having carefully considered the submissions made on behalf of the Petitioners, we are unable to accept Mr. Guptas submissions, since the issue raised by him is no longer res integra and has been well settled by a series of decisions of this Court after the decision in Prem Singhs case (supra). Even in Prem Singhs case, which has been strongly relied upon by Mr. Gupta, the proposition sought to be advanced by him does not find support. It is well-established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies14 would also be under consideration for being filled up. In fact, in the decision rendered in Ishwar Singh Khatris case (supra) which was referred to by the High Court, this Court while considering the preparation of panel of 1492 selected candidates as against the 654 actual vacancies notified, recorded the fact that after filling up the notified number of vacancies from the panel, no further appointments were made therefrom and instead fresh advertisement was issued for further appointment. Since a promise had been made in the minutes of the meeting of the Selection Board that the panel would be valid till all the candidates were offered appointments, this Court held that the Selection Board had taken into consideration anticipated vacancies while preparing the panel. It is on such basis that this Court had observed that it had to be concluded that the Selection Board had prepared the panels containing 1492 candidates, as against the then available vacancies, and, accordingly, the15 selected candidates had a right to get appointment. It is in such circumstances that further appointments from the published panel of 1492 candidates, as directed by the Tribunal, were upheld.
11. In a recent decision rendered by this Court in State of U.P. v. Raj Kumar Sharma [(2006) 3 SCC 330], this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the Select List does not confer any right to be selected, even if some of16 the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake.
12. Even the decision in Prem Singhs case (supra), which had been strongly relied upon by Mr. Joydeep Gupta in support of his claim that the State had a right to deviate from the advertisement published by it, has to be considered in the light of the circumstances in which the same was made. While holding that if the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts, this Court went on to hold that the State could deviate from the advertisement and make17 appointments in posts falling vacant thereafter in exceptional cases or in an emergent situation, and, that too, by taking a policy decision in that behalf. The said finding cannot possibly be interpreted in the manner in which it has been done by Mr. Gupta that the advertisement could be deviated from by the State, even in the present circumstances, which, in our view, were neither exceptional nor emergent. The fact that 690 seats were available is not a relevant consideration for application of the aforesaid principle. It is in such situation that a fresh advertisement is required to be published for filling up the remaining number of vacancies after the vacancies advertised are filled up. The latter portion of paragraph 25 of the said decision in Prem Singhs case (supra) deals with a situation where posts in excess of those advertised had been filled up in extra-ordinary circumstances. In such a case it was observed that instead of invalidating the18 excess appointments, the relief could be moulded in such a manner so as to strike a just balance, if it is in the interest of the State and in the interest of the person seeking public employment, to the facts of such case. The facts of that case are different from the facts of the instant case, in that no extra-ordinary and/or exceptional circumstances exist in the present case requiring the filling up of the vacant seats available after filling up the 160 seats advertised. The decision in Prem Singhs case (supra) has to be read in such a context and cannot be said to be the rule, but rather the exception.
13. We, therefore, are not inclined to accept Mr. Guptas submissions, which deal with the exception and not the rule and, accordingly, the Special Leave Petitions are dismissed. Consequently, the application filed by the Petitioner Nos.4 to 58 for19 permission to file the Special Leave Petition is rejected.
14. There will, however, be no order as to costs.
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JT 2012 (SC)
Assistant Commercial Tax Officer Appellant v. M/S Romesh Power Products P. Ltd.
Civil Appeal No. 246 of 2012
(@ Special Leave Petition(c)No.7101 of 2010)
H.l. Dattu & Chandramauli Kr. Prasad
Dt. 09.01.2012
1. Leave granted.
2. This appeal is directed against the judgment and order dated 29.06.2009 passed by the High Court of Judicature for Rajasthan at Jaipur Bench in S.B.Sales Tax Revision Petition Civil No.139 of 2009.
3. The Revenue, being aggrieved by the orders passed by the Revenue Appellate Tribunal, Jaipur, had approached the High Court in S.B.Sales Tax Revision Petition Civil No.139 of 2009.
4. The High Court has disposed of the Revision Petition only on the ground that the Check-Post Authority had levied penalty on the owner of the goods at the time of checking of the vehicle.
5. Dr.Manish Singhvi, learned counsel for the appellant would contend that the reasoning of the High Court is opposed to the observation made by this Court in the case of Asst.Commercial Taxes Officer Vs. Bajaj Electricals Ltd. (2009)1 SCC p.308.
6. In the aforesaid said decision, this Court has observed:
’28. If one reads sub-section (5) of Section 78 in its entirely with Rule 53 of the 1995 Rules, it is clear that penalty was liable to be imposed for importation of any taxable goods for sale without furnishing a declaration in Form ST 18-A completely filled in all respects. The duty to fill and furnish the said form is imposed on the purchasing dealer. Therefore, Section 78(5) as it stood prior to 22.3.2002 imposed penalty if possession or movement of goods took place inter alia in breach of Section 78(2)(a) on ‘the person in charge’, which included the owner. In this connection it may be noted that sub-section (5) comes after sub-section (4)(c) which talks about release of the goods to ‘the owner of the goods’ on his giving of adequate security. It is the owner (importer) who has to fill in Form ST 18-A. It is the owner who is entitled to seek release under Section 78(4) on giving security. It is the owner who is entitled to hearing under Section 78(5) and, therefore, the expression ‘person in charge of the goods’ under Section 78(5) would include the owner. Moreover, under Section 78(2) the words used are ‘person in charge of a vehicle or carrier of goods in movement’ whereas the words in Section 78(5) which comes after sub-section (4) refer to ‘person in charge of the goods’. The words ‘in movement’ do not find place in Section 78(5) and therefore, the expression ‘person in charge of goods’ under Section 78(5) was wider than the expression ‘person in charge of goods in movement’ under Section 78(2)(a). Consequently, the expression ‘person in charge of the goods’ under Section 78(5) who is given an opportunity of being heard in the enquiry would include the ‘owner of the goods’.
7. We are in agreement with the decisions of this Court. In view of the conclusions reached by this Court in the above case, the High Court was not justified in observing that since the penalty has been levied only against the owner of the vehicle and not against the person in-charge of the vehicle and, therefore, the judgment of the High Court cannot be sustained.
8. In the result, the appeal is allowed, the order passed by the High Court is set aside and the order passed by the Check-Post Authority is confirmed.
Ordered accordingly.
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JT 2012 (SC)
Asst. Commercial Taxes Officer v. M/s. G.D. Pharmaceuticals Ltd.
Civil Appeal No. 5734 of 2012
(Special Leave Petition(c.)No.18404 of 2008)
H.l. Dattu & Chandramauli Kr. Prasad
Dt. 06.08.2012
Cases Referred :
Court in Rai Ramakrishna & Others v. The State of Bihar [1963] 50ITR171(SC)]
1. Delay condoned.
2. Leave granted.
3. We have heard learned counsel for the appellant to the lis.
4. This appeal is directed against the judgment and order passed by the Rajasthan High Court in S.B. Sales Tax Revision Petition No.47/2006, dated 30.04.2007.
5. The issue raised in this appeal is squarely covered by the decision of this Court in the case of State of Rajasthan & Anr. Vs. D.P.Metals, (2002)1 SCC 279. In the said decision, the Court has stated that :
…
31. Such submission of false or forged documents or declaration at the check-post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. Hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. Similarly where, despite opportunity having been granted under Section 78(5) if the requisite documents referred to in sub-clause 2(a) are not produced, even though the same should exist, would clearly prove the guilty intent. It is not possible to agree with the counsel for the respondents that breach referred to in Section 78(5) can be regarded as technical or venial. Once the ingredients of Section 78(5) are established, after giving a hearing and complying with the principles of natural justice, there is no discretion not to levy or levy lesser amount of penalty. If by mistake some of the documents are not readily available at the time of checking, principle of natural justice may require some opportunity being given to produce the same. This provision cannot be read as to imply that the penalty of 30% is the maximum and lesser penalty can be levied. The legislature thought it fit to specify a fixed rate of penalty and not give any discretion in lowering the rate of penalty. The penalty so fixed is meant to be a deterrent and we do not see anything wrong in this. This quantum of penalty under the circumstances enumerated in Section 78(5) cannot, in our opinion, be regarded as illegal. The legislature in its wisdom has though it appropriate to fix it at 30% of the value of goods and it had the competence to so fix. As held by this Court in Rai Ramakrishna & Others v. The State of Bihar [1963] 50ITR171(SC)]; ‘The objects to be taxed so long as they happen to be within the legislative competence of the legislature can be taxed by the legislature according to the exigencies of its needs, because there can be no doubt that the State is entitled to raise revenue by taxation. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the legislature, and in dealing with the contention raised by a citizen that the talking statute contravenes Art. 19, courts would naturally be circumspect and cautions’ as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in Section 78(5) of the Act.
6. Following the aforesaid decision, the appeal is allowed and the orders passed by the First Appellate Authority Board and the High Court are set aside and the order passed by the Original Authority is restored.
No costs.
7. Ordered accordingly.
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JT 2012 (SC)
Commissioner of Central Excise, Vadodara v. Gujarat Narmada Valley Fertilizers Company Ltd.
Civil Appeal Nos. 4189-4196 of 2010
Swatanter Kumar & Madan B. Lokur, JJ
Dt. 11.12.2012
Cases Referred :
1. Ramala Sahkari Chini Mills Limited, Uttar Pradesh v. Commissioner, Central Excise, Meerut-I, [(2010) 14 SCC 744] (Para 15)
2. Commissioner of Central Excise v. Gujarat Narmada Fertilizers Company Limited [(2009) 9 SCC 101] (Para 9)
3. Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III [(2009) 9 SCC 193] (Para 15)
4. Commissioner of Central Excise Vadodara v. Gujarat State Fertilizers & Chemicals Ltd., [(2008) 15 SCC 46] (Para 16)
5. Commissioner of Central Excise and Customs v. Gujarat Narmada Fertilizers Co. Ltd., [2006 (193) ELT 136] (Para 6)
6. Gujarat Narmada Fertilizers Co. Ltd. v. Commissioner of Central Excise, Vadodara [2004 (176) ELT 200] (Para 6)
Madan B. Lokur, J.
1. The assessee utilizes cenvat duty paid Low Sulphur Heavy Stock (for short LSHS) as fuel input for generating steam. The steam so generated is utilized to generate electricity for the manufacture of fertilizer which is exempt from excise duty. According to the assessee, it is entitled to claim cenvat credit on the input, that is, LSHS even though fertilizer is exempt from excise duty. The correctness of this view was disputed by the Revenue.
2. Consequently, the Commissioner, Central Excise & Customs, Vadodara-II (hereinafter referred to as the Commissioner) issued two notices to the assessee to show cause why cenvat credit wrongly availed by it should not be recovered under Rule 12 of the Cenvat Credit Rules, 2002 (hereinafter referred to as Rules) read with Section 11A of the Central Excise Act, 1944. The assessee was also required to show cause why interest be not recovered on the wrongly availed cenvat credit and why penalty be not imposed on it.
3. The first show cause notice issued to the assessee was dated 8th March 2004 and pertained to the period 31st March 2003 to September 2003 while the second show cause notice was dated 28th July 2004 and was for the period October 2003 to March 2004.
4. The assessee replied to both the show cause notices and after giving the assessee an opportunity of hearing, the Commissioner adjudicated the first show cause notice by passing an order adverse to the assessee on 24th June 2004. The second show cause notice was similarly adjudicated and an adverse order passed on 30th August 2004. By these orders, the Commissioner confirmed the demand of cenvat credit wrongly claimed by the assessee. The Commissioner also directed the assessee to pay interest on the demanded amount and also imposed personal penalty under Rule 13 of the Rules.
Proceedings before the Tribunal:
5. Feeling aggrieved, the assessee preferred two appeals before the Customs, Excise & Service Tax Appellate Tribunal at Mumbai (hereinafter referred to as the Tribunal). The appeals were numbered as Appeal Nos.E/2517/2004 and E/3672/2004.
6. For reasons that are not apparent from the record, both appeals were referred to a larger Bench and heard by the Vice-President and two members of the Tribunal (hereinafter referred to for convenience as the larger Bench). By an order dated 27th December 2006/4th January 2007, the larger Bench held that the assessee was entitled to claim cenvat credit on the LSHS used as input for producing steam and electricity for the manufacture of fertilizer. According to the larger Bench, the issue raised by the assessee was fully covered in its favour by a decision of the Tribunal in Gujarat Narmada Fertilizers Co. Ltd. v. Commissioner of Central Excise, Vadodara, 2004 (176) ELT 200 (Tri. Mumbai) against which the Revenues appeal before the Gujarat High Court was dismissed since no substantial question of law arose. The decision of the Gujarat High Court is Commissioner of Central Excise and Customs v. Gujarat Narmada Fertilizers Co. Ltd., [2006 (193) ELT 136 (Gujarat).
7. The Tribunal was, therefore, of the opinion that the issue was no longer res integra and the decision earlier rendered by the Tribunal was binding upon the parties. The reference made to the larger Bench was then answered in the following terms:-
The reference is thus answered by holding that the assessees are eligible to cenvat credit of duty paid on that quantity of LSHS which was used for producing steam and electricity used in turn in relation to manufacture of exempted goods, namely fertilizers.
8. Pursuant to the decision of the larger Bench, the substantive appeals were placed before a Division Bench of the Tribunal. By an order dated 10th April 2008 (impugned before us) the Division Bench of the Tribunal allowed the assessees appeals relying on the decision of the larger Bench.
Earlier proceedings in this Court:
9. In the meanwhile, the Revenue preferred an appeal to this Court against the decision of the larger Bench of the Tribunal. By a judgment and order dated 17th August 2009 (rendered after the impugned order passed by the Tribunal), this Court in Commissioner of Central Excise v. Gujarat Narmada Fertilizers Company Limited, [(2009) 9 SCC 101] set aside the order of the larger Bench and decided the issue raised in favour of the Revenue.
10. This Court held that the Tribunal (and later the Gujarat High Court) did not correctly appreciate the legal position in Gujarat Narmada. In coming to this conclusion, this Court referred to Rule 6 of the Rules. For convenience, Rule 6(1) and 6(2) of the Rules are reproduced and they read as follows:-
6. Obligation of manufacturer of dutiable and excisable goods-
(1) The CENVAT credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, except in the circumstances mentioned in sub-rule (2).
Provided xxx xxx xxx
(2) Where a manufacturer avails of CENVAT credit in respect of any inputs, except inputs intended to be used as fuel, and manufactures such final products which are chargeable to duty as well as exempted goods, then, the manufacturer shall maintain separate accounts for receipt, consumption and inventory of inputs meant for use in the manufacture of dutiable final products and the quantity of inputs meant for use in the manufacture of exempted goods and take CENVAT credit only on that quantity of inputs which is intended for use in the manufacture of dutiable goods.
11. This Court was of the view that Rule 6(1) of the Rules is plenary and that cenvat credit for duty paid inputs used in the manufacture of exempted final products is not allowable. Rule 6(1) of the Rules covers all inputs, including fuel. On the other hand, Rule 6(2) of the Rules refers to other inputs (other than fuel) used in or in relation to the manufacture of the final product (dutiable and exempted).
12. This Court further held that on a cumulative reading of Rule 6(1) and Rule 6(2) of the Rules it is clear that the legal effect of Rule 6(1) of the Rules is applicable to all inputs, including fuel. Therefore, cenvat credit will not be permissible on the quantity of fuel used in the manufacture of exempted goods. As regards non-fuel inputs, an assessee would have to maintain separate accounts or be governed by Rule 6(3) of the Rules.
13. As mentioned above, when the substantive appeals were taken up for consideration by the Division Bench of the Tribunal, the decision of this Court in Gujarat Narmada was not available. Accordingly, by the impugned order, the Division Bench of the Tribunal allowed the appeals filed by the assessee relying on the decision of the larger Bench of the Tribunal. It is under these circumstances that the Revenue is before us.
Submissions:
14. The first and in fact the only contention of the learned Additional Solicitor General appearing for the Revenue was that these appeals deserve to be allowed in view of the decision rendered by this Court in Gujarat Narmada. It was submitted that the orders impugned in these appeals were dependent upon the order passed by the larger Bench of the Tribunal on 27th December 2006/4th January 2007. The decision of the larger Bench having been set aside by this Court in Gujarat Narmada the substratum of the case of the assessee is wiped out.
15. On the other hand, the submission of learned counsel for the assessee was that the issue whether LSHS is an input as defined in Rule 2(g) of the Rules is debatable. According to the assessee, it should be given a wide meaning, but in Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III (2009) 9 SCC 193 this Court gave input a restrictive meaning. The correctness of this view was doubted in Ramala Sahkari Chini Mills Limited, Uttar Pradesh v. Commissioner, Central Excise, Meerut-I, (2010) 14 SCC 744 and the issue has been referred to a larger Bench of this Court. It was submitted that if it is held in these appeals that LSHS is not an input, then the assessee would be adversely affected. It was, therefore, submitted that these appeals may also be referred to a larger Bench or we may await the decision of the larger Bench of this Court.
16. On merits, it was submitted that while deciding Gujarat Narmada this Court did not notice its earlier decision in Commissioner of Central Excise Vadodara v. Gujarat State Fertilizers & Chemicals Ltd., (2008) 15 SCC 46. In GSFCL it was clearly held in favour of the assessee that a claim of modvat credit on LSHS is justified if it is used in the manufacture of steam, which in turn is used in the generation of electricity for the manufacture of fertilizer exempt from duty. Since that decision was overlooked, this Court fell into error while deciding Gujarat Narmada against the assessee.
17. Assuming input is not given a restrictive meaning, then in view of GSFCL the issue whether the assessee is entitled to claim cenvat credit on duty paid LSHS is no longer open to discussion and the appeals must be dismissed on that basis alone.
18. In response, the learned Additional Solicitor General submitted that the interpretation of input does not arise in these appeals and we may proceed on the basis that input as defined in Rule 2(g) of the Rules may be given a broad interpretation and that LSHS utilized by the assessee is an input for the manufacture of fertilizer exempted from duty. The second step, namely, entitlement to cenvat credit does not necessarily follow even if the first step is decided in favour of the assessee. There was, therefore, no necessity of referring these appeals to a larger Bench of this Court and the case was fully covered in favour of the Revenue in view of Gujarat Narmada.
Our view:
19. There is an apparent conflict between GSFCL and Gujarat Narmada.
20. In GSFCL a view has been taken that modvat credit can be taken on LSHS used in the manufacture of fertilizer exempt from duty. Although this decision was rendered in the context of availing modvat credit under the Central Excise Rules, 1944 as they existed prior to the promulgation of the Cenvat Credit Rules, 2002 the principle of law laid down is general and not specific to the Central Excise Rules, 1944. The decision rendered in Gujarat Narmada has been rendered in the context of the Cenvat Credit Rules, 2002 and is, therefore, more apposite. However, since GSFCL does lay down a general principle of law, we have no option but to refer the issue to a larger Bench to resolve the conflict between GSFCL and Gujarat Narmada. The conflict to be resolved is whether under the Cenvat Credit Rules, 2002 an assessee is entitled to claim cenvat credit on duty paid LSHS utilized as an input in the manufacture of fertilizer exempt from duty.
21. The Registry may place the case papers before Honble the Chief Justice for constituting a larger Bench to decide the aforesaid conflict of views.
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JT 2013 (SC)
Bhartiya Seva Samaj Trust Tr. Pres. & Anr. v. Yogeshbhai Ambalal Patel & Anr.
CIVIL APPEAL NO. 6463 OF 2012
Dr. B.s. Chauhan & Fakkir Mohamed Ibrahim Kalifulla
Dt. 14.09.2012
1. State of Orissa & Anr. v. Mamata Mohanty, [(2011) 3 SCC 436] (Para 9)
2. Inderjit Singh Grewal v. State of Punjab & Anr., [(2011) 12 SCC 588] (Para 21)
3. State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., [(2011) 8 SCC 737] (Para 17)
4. Eureka Forbes Ltd. v. Allahabad Bank & Ors., [(2010) 6 SCC 193] (Para 21)
5. Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1] (Para 16)
6. State of Uttaranchal & Anr. v. Ajit Singh Bhola & Anr., [(2004) 6 SCC 800] (Para 8)
7. Chandra Singh v. State of Rajasthan, [AIR 2003 SC 2889] (Para 8)
8. Mallikarjuna Mudhagal Nagappa & Ors. v. State of Karnataka & Ors., [AIR 2000 SC 2976] (Para 8)
9. Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., [AIR 1999 SC 3609] (Para 8)
10. T. Srinivasan v. T. Varalakshmi (Mrs.), [AIR 1999 SC 595] (Para 21)
11. Molly Joseph @ Nish v. George Sebastian @ Joy, [AIR 1997 SC 109] (Para 21)
12. Jose v. Alice & Anr., [(1996) 6 SCC 342] (Para 21)
13. Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., [AIR 1993 SC 2178] (Para 13)
14. Miss. Mohini Jain v. State of Karnataka & Ors., [AIR 1992 SC 1858] (Para 12)
15. Andhra Kesari Education Society v. Director of School Education & Ors., [AIR 1989 SC 183] (Para 10)
16. Narender Chadha & Ors. v. Union of India & Ors., [AIR 1986 SC 638] (Para 21)
17. G. S. Lamba & Ors. v. Union of India & Ors., [ AIR 1985 SC 1019] (Para 21)
18. Bandhua Mukti Morcha v. Union of India & Ors., [1984 Sc 802] (Para 11)
19. Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors., [AIR 1966 SC 828] (Para 8)
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the impugned judgment and order dated 26.7.2012 passed by the High Court of Gujarat, Ahmedabad in Letters Patent Appeal No.1367 of 2008 in Special Civil Application No.6346 of 2006.
2. Facts and circumstances giving rise to this appeal are that:
A. The appellant Trust runs a Primary School wherein a large number of students are getting education and a large number of teachers are imparting education. Respondent No.1 was appointed as an Assistant Teacher on 1.7.1993 alongwith a large number of persons in pursuance of the advertisement inviting application for the posts.
B. The appellant Trust issued a show cause notice dated 26.3.1998 to the respondent No.1 as why his services should not be terminated and alongwith the said notice he was also given the cheque towards salary for the month of March 1998. He was asked to submit reply to the said notice within 15 days. The notice was issued on the ground that he did not possess the eligibility for the said post and proper procedure had not been followed for making the appointment.
C. The respondent No.1 did not submit any reply to the aforesaid notice. Thus, the appellant Trust passed the order dated 30.4.1998 terminating his services on the ground that his appointment was in contravention of the statutory provisions of Bombay Primary Education (Gujarat Amendment) Act, 1986 (hereinafter referred to as the Act) and particularly, in violation of the Schedule attached thereto. Alongwith the order of termination, he was also served a cheque for a sum of
Rs.1710/- towards the salary for the month of April 1998 and was directed to hand over the charge to the Principal.
D. Aggrieved, the respondent No.1 challenged the aforesaid order by filing Application No.69/98 before the Gujarat Primary Education Tribunal on 11.5.1998 and asked for quashing of the said order and for reinstatement with all back wages. The appellant contested the said application and submitted the written statement etc. Parties were given the liberty by the Tribunal to examine and cross-examine the witnesses examined by the parties. The Tribunal vide judgment and order dated 21.1.2006 allowed the application of the respondent No.1 directing the appellant to reinstate him and also to pay him the back wages.
E. Aggrieved, the appellant filed Special Civil Application No.6346 of 2006 before the High Court of Gujarat challenging the said order of the Tribunal dated 21.1.2006.
F. The learned Single Judge vide order dated 13.11.2008 dismissed the said application filed by the appellant Trust on various grounds, inter-alia, that the termination was in utter disregard of the statutory provisions of Section 40B of the Act which requires to serve a show cause notice to the employee and seeking approval of the statutory authorities before giving effect to the order of termination.
G. Aggrieved, the appellant challenged the said judgment and order by filing Letters Patent Appeal No.1367 of 2008 which has been dismissed by order dated 1.12.2008. Hence, this appeal.
3. Shri Percy Kavina, learned Senior Advocate appearing on behalf of the appellant, has submitted that the respondent No.1 possesses the qualification of B.Sc.; B.Ed., but the required qualification for a Primary School Teacher is Primary Teachers Certificate (PTC) as provided in Clause (6) of Schedule F to the Act as applicable to all Primary Schools in the State of Gujarat. Thus, the respondent did not possess the qualification making him eligible for the post. Once the order is bad in its inception, it cannot be sanctified by lapse of time. The order of termination ought not to have been interfered with as the order setting aside the same had revived the wrong order of appointment, which is not permissible in law. The courts below must have ensured strict compliance of the statutory provisions of the Act and have swayed with unwarranted sympathy with the respondent No.1. Thus, the appeal deserves to be allowed.
4. On the contrary, the respondent No.1 appeared in person as a Caveator and has submitted that he had applied in pursuance of an advertisement wherein the eligibility i.e. qualification was shown as B.Sc.;B.Ed/B.A.;B.Ed. The vacancies had been advertised in local newspaper having wide circulation. Most of the teachers in the School run by the appellant had been appointed though they possessed the same qualification i.e., B.Sc.;B.Ed./B.A.;B.Ed. A large number of candidates had applied for the post alongwith respondent no.1 possessing the same qualification and they had been selected. None of them has been removed. The respondent No.1 had been given hostile discrimination as the teachers having the same qualification duly appointed alongwith respondent No.1 are still working in the appellants School. Respondent No.1 had been chosen to be removed for extraneous reasons and had been deprived of his legitimate dues. His selection was made by the Committee consisting of the representatives of the appellant Trust as well as Government officials after being fully satisfied regarding the eligibility of the respondent No.1. The appellant Trust cannot be permitted either to make discrimination amongst employees or to take the benefit of its own mistake and that too at such a belated stage. The appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
Section 40B of the Act reads as under:-
Section 40B: Dismissal removal or reduction in rank of teachers:-
(1)(a) No teacher of a recognized private primary school shall be dismissed or removed or reduced in rank nor service be otherwise terminated until
i) he has been given by the manager an opportunity of showing cause against the action proposed to be taken in regard to him; and
ii) the action proposed to be taken in regard to him has been approved in writing by the administrative officer of the school board in the jurisdiction of which the private school is situated.
(b) The administrative officer shall communicate to the manager of the school in writing his approval of the action proposed, within a period of forty five days from the date of receipt by the administrative officer of such proposal.
(2) Where the administrative officer fails to communicate either approval or disapproval within a period of forty five days specified in clause (b) of sub-section (1), the proposed action shall be deemed to have been approved by the administrative officer on the expiry of the said period.
6. The Tribunal as well as the High Court, after appreciating the evidence on record, recorded the findings to the effect that there had been two fold violation of Section 40B of the Act, firstly, no notice was issued to the respondent No.1 and secondly, no approval from the competent authority was sought for by the School management.
7. Shri Percy Kavina, learned Senior Advocate appearing on behalf of the appellant, has fairly conceded to the effect that the said statutory provisions of Section 40B of the Act had been violated on both counts. In view of the above, the facts and circumstances of the case do not warrant review of the orders passed by the High Court as well as by the Tribunal. However, Shri Percy Kavina has insisted that this Court should not permit an illegality to perpetrate as the respondent No.1 had been appointed illegally and he did not possess the eligibility for the post. The Primary School children have to be taught by qualified persons and this Court has consistently held that B.Sc.; B.Ed./B.A.;B.Ed. is not equivalent to PTC which is the required qualification in clause (6) of Schedule F attached to the Act. Clause (6) of Schedule F reads as under:-
Clause 6. Qualification The Management shall appoint only trained teacher who have passed the Secondary School Certificate Examination and also the Primary Training Certificate Examination. For special subjects, teachers shall be recruited in accordance with the qualification laid down by the Government for such teacher under the vacancies in the District Education Committees or Municipal School Boards in the State from time to time.
7.1 Thus, it has been submitted by Shri Percy Kavina that in order to enforce the statutory requirement, this Court should set aside the impugned judgment and order as it has revived the illegal appointment of the respondent No.1.
8. It is a settled legal proposition that the court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it would put a premium to the undeserving party/person. (Vide: Gadde Venkateswara Rao v. Government of Andhra Pradesh & Ors., [AIR 1966 SC 828]; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., [AIR 1999 SC 3609]; Mallikarjuna Mudhagal Nagappa & Ors. v. State of Karnataka & Ors., [AIR 2000 SC 2976]; Chandra Singh v. State of Rajasthan, [AIR 2003 SC 2889]; and State of Uttaranchal & Anr. v. Ajit Singh Bhola & Anr., [(2004) 6 SCC 800].
9. In State of Orissa & Anr. v. Mamata Mohanty, [(2011) 3 SCC 436], this Court while considering the similar issue where teachers had been appointed without possessing the eligibility has held that if the appointment order itself is bad in its inception, it cannot be rectified and a person lacking eligibility cannot be appointed unless the statutory provision provides for relaxation of eligibility in a particular statute and order of relaxation has been passed in terms of the said order.
10. In Andhra Kesari Education Society v. Director of School Education & Ors., [AIR 1989 SC 183], this Court recognised the importance of eligibility fixed by the Legislature in the said case, pointing out that, as those persons have to handle with the tiny tods, therefore, the teacher alone could bring out their skills and intellectual activities. He is the engine of the educational system. He is a superb instrument in awakening the children to cultural values. He must possess potentiality to deliver enlightened service to the society. His quality should be such as could inspire and motivate into action the benefiter. He must keep himself abreast of ever-changing conditions. He is not to perform in wooden and unimaginative way; he must eliminate unwarranted tendencies and attitudes and infuse nobler and national ideas in younger generation; and his involvement in national integration is more important; indeed, indispensable.
11. In Bandhua Mukti Morcha v. Union of India & Ors., [1984 Sc 802], This court held that article 21 read with articles 39, 41 and 42 provides for protection and preservation of health and strength also of tender age children against abuse of opportunities and further provides for providing the educational facilities.
12. In Miss. Mohini Jain v. State of Karnataka & Ors., [AIR 1992 SC 1858], this Court while dealing with this issue held that without making right to education under Article 41 of the Constitution a reality, the fundamental rights under Chapter III shall remain beyond the reach of the large majority which are illiterate. The State is under an obligation to make an endeavour to provide educational facilities at all levels to its citizens. The right to education, therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution to provide educational institutions at all levels for the benefit of the citizens. The Educational Institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society.
13. In Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., [AIR 1993 SC 2178], this Court considered a large number of judgments on this issue and came to the conclusion that the right to education is contained in as many as three Articles in Part IV, viz., Articles 41, 45 and 46, which shows the importance attached to it by the founding- fathers. Even some of the Articles in Part III, viz., Articles 29 and 30 speak of education. The Court further held that right to compulsory and free education up to the age of 14 years is a fundamental right of every child.
14. In view to have greater emphasis, the 86th Amendment in the Constitution of India was made in 2002 introducing the provision of Article 21-A, declaring the right to free and compulsory education of the children between the age of 6 to 14 years as a fundamental right. Correspondingly, the provisions of Article 45 have been amended making it an obligation on the part of the State to impart free education to the children. Amendment in Article 51-A of the Constitution inserting the clause-k has also been made making it obligatory on the part of the parents to provide opportunities for education to their children between the age of 6 to 14 years.
15. Thus, in view of the above, it is evident that imparting elementary and basic education is a constitutional obligation on the State as well as societies running educational institutions. When we talk of education, it means not only learning how to write and read alphabets or get mere information but it means to acquire knowledge and wisdom so that he may lead a better life and become a better citizen to serve the nation in a better way.
The policy framework behind education in India is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds.
Every generation looks up to the next generation with the hope that they shall build up a nation better than the present. Therefore, education which empowers the future generation should always be the main concern for any nation.
16. Right to education flows directly from Article 21 and is one of the most important fundamental rights. In Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1], while deciding the issue of reservation, this Court made a reference to the provisions of Articles 15(3) and 21A of the Constitution, observing that without Article 21A the other fundamental rights are rendered meaningless. Therefore, there has to be a need to earnestly on implementing Article 21A.
Without education a citizen may never come to know of his other rights. Since there is no corresponding constitutional right to higher education the fundamental stress has to be on primary and elementary education, so that a proper foundation for higher education can be effectively laid.
Hence, we see that education is an issue, which has been treated at length in our Constitution. It is a well accepted fact that democracy cannot be flawless; but, we can strive to minimize these flaws with proper education.
Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs.
17. This Court in State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., [(2011) 8 SCC 737] held as under:
In the post constitutional era, attempts have been made to create an egalitarian society by removing disparity among individuals and in order to do so, education is the most important and effective means. There has been an earnest effort to bring education out of commercialism/merchantilism.
The right of a child should not be restricted only to free and compulsory education but should be extended to have quality education without any discrimination on economic, social and cultural grounds.
18. In view of the above, education and particularly that of elementary/basic education has to be qualitative and for that the trained teachers are required. The Legislature in its wisdom after consultation with the expert body fixes the eligibility for a particular discipline taught in a school. Thus, the eligibility so fixed require very strict compliance and any appointment made in contravention thereof must be held to be void.
19. In ordinary circumstances, the instant case could be decided in the light of the aforesaid backdrop. However, the Division Bench of the High Court has given full details of the teachers who had been appointed alongwith the respondent No.1 in pursuance of the same advertisement and possessing the same qualification of B.Sc.;B.Ed./B.A.;B.Ed. They are still working with the same management and some of them had been as under:
(i) Mrs. Rekhaben Virabhai Patel
(ii) Mrs. Urmilaben Chandrakantbhai Mistry
iii) Mr. Dilipbhai Naranbhai Patel
iv) Mrs. Ritaben Shaileshbhai Joshi
20. The High Court further recorded a finding that the list of such persons was merely illustrative and not exhaustive.
21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim allegans suam turpitudinem non est audiendus’. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide: G. S. Lamba & Ors. v. Union of India & Ors., [ AIR 1985 SC 1019]; Narender Chadha & Ors. v. Union of India & Ors., [AIR 1986 SC 638]; Molly Joseph @ Nish v. George Sebastian @ Joy, [AIR 1997 SC 109]; Jose v. Alice & Anr., [(1996) 6 SCC 342]; and T. Srinivasan v. T. Varalakshmi (Mrs.), [AIR 1999 SC 595].
This concept is also explained by the legal maxims Commodum ex injuria sua nemo habere debet; and ‘nullus commodum capere potest de injuria sua propria’. (See also: Eureka Forbes Ltd. v. Allahabad Bank & Ors., [(2010) 6 SCC 193]; and Inderjit Singh Grewal v. State of Punjab & Anr., [(2011) 12 SCC 588].
22. Thus, it is evident that the appellant has acted with malice alongwith respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation.
23. After going through the material on record and considering the submissions made by learned counsel for the appellant and the respondent No.1-in-person, we do not find any cogent reason whatsoever to interfere with the aforesaid findings of fact.
24. The appeal lacks merit and is, accordingly, dismissed.