No Acts & Articles mentioned in this case
2023INSC733 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3339 of 2023
CENTRAL COUNCIL FOR RESEARCH IN …APPELLANTS
AYURVEDIC SCIENCES & ANR.
VERSUS
BIKARTAN DAS & ORS. …RESPONDENTS
J U D G M E N T
J. B. Pardiwala, J.:
1.This appeal by special leave is at the instance of the Central Council for
Research in Ayurvedic Sciences (CCRAS), Ministry of Ayurveda, Yoga
and Naturopathy, Unani, Siddha and Homeopathy (AYUSH),
Government of India (appellant No. 1) and its Director General
(appellant No. 2). The two appellants before us were the original
respondents before the High Court of Orissa. This appeal is directed
against the judgment and order dated 17.12.2020 passed by the High
Court of Orissa, Cuttack in W.P. (C) No. 30620 of 2020 by which the
High Court allowed the writ application filed by the original petitioner
(respondent No. 1) before us, setting aside the order passed by the
Central Administrative Tribunal (CAT), Cuttack Bench, Cuttack and
thereby holding that the respondent No. 1 herein, namely, Dr. Bikartan
Das is entitled to the benefit of enhancement of retirement age from 60
to 65 years as applicable to the AYUSH doctors working under the
Ministry of AYUSH.
FACTUAL MATRIX
1
2.The respondent No. 1 herein was appointed by the Council as a Research
Assistant w.e.f. 07.10.1985. The Office Order No. 183 of 1985 dated
11.10.1985 reads thus:
“No. P.1-67/86-CRIA/DDSR/Estt./748(5) Dt 11.10.85
OFFICE ORDER No. 183/85
Dr. Bikartan Das is appointed as a Research Assistant (AY)
with effect from the forenoon of the 7th October, 1985 until
further orders in the Central Research Institute (AY), Unit,
Bhubaneshwar-9. He will be on probation for a period of two
years from this date. He will draw a basic pay of Rs. 425/- per
month in the scale of Rs. 425-15-500 PB-15-560-20-700 with
usual allowance admissible under the rules.
(Dr. PREM KISHORE )
ASSISTANT DIRECTOR (AY) I/C”
3.The Government of India in its Ministry of Health and Family Welfare
vide letter dated 01.12.1998 addressed to the Council, approved the
decision of the Council to enhance the benefit of extension in age of
retirement from 58 years to 60 years in respect of employees of the
Council w.e.f. 31.05.1998 in accordance with the guidelines issued by
the Department of Personnel and Training (DoPT) vide O.M. No.
25012/8/98-Estt. (A) dated 13.05.1998.
4.On 27.09.2017, the Union Cabinet took a decision to enhance the age of
superannuation up to 65 years for the AYUSH doctors working under the
Ministry of AYUSH (respondent No. 2 herein) and in the Central
Government Health Scheme (for short, ‘the CGHS’) Hospitals.
5.By way of letter dated 31.10.2017, the Ministry of AYUSH clarified that
the effect of the Cabinet decision referred to above would be applicable
2
only to the AYUSH doctors directly working under the Ministry of
AYUSH and in the CGHS Hospitals. It was clarified that the decision to
enhance the age of superannuation up to 65 years would not be
applicable to the autonomous bodies functioning under the Ministry of
AYUSH. The letter dated 31.10.2017 addressed by the Ministry of
AYUSH to the Director General, CCRAS and CCRUM, reads thus:
“ FTS No. 32797/2017
Ministry of Ayurvedic, Yoga & Naturopathy, Unani, Siddha &
Homoeopathy (AYUSH)
(Research Desk)
‘B’ – Block, GPO Complex,
AYUSH Bhawan, Behind the INA Market,
New Delhi – 110023
Dated: 31
st
October, 2017
To
The Director General,
CCRAS and CCRUM
61-65, Institutional Area,
Opposite “D” Block,
Janakpuri, New Delhi – 110058.
Subject: Enhancement of superannuation age to 65 years
-reg.
Sir,
I am directed to say that the Ministry has been
receiving a number of representations from various officials of
the Councils regarding enhancement of superannuation age to
65 years. It is stated that as per Press Information Bureau the
Union Cabinet has taken the following decision:-
“The superannuation age has been enhanced to 65
years in respect of doctors under the administrative control of
the respective Ministry/Department [M/o AYUSH (AYUSH
3
Doctors), Department of Defence (civilian doctors under
Directorate General of Armed Forces Medical Service),
Department of Defence Production (Indian Ordnance
Factories Health Service Medical Officers), Dental Doctors
under D/o Health & Family Welfare, Dental doctors under
Ministry of Railways and of doctors working in Higher
Education and Technical Institutions under Department of
Higher Education]”.
2. The decision of the Cabinet is applicable to the AYUSH
doctors directly working under the administrative control of
Ministry of AYUSH i.e. AYUSH doctors working under CGHS.
The decision of the Union Cabinet is not applicable to
autonomous bodies functioning under Ministry of AYUSH i.e.
Research Councils/National Institutes.
3. All such representations are therefore being sent to the
respective Councils. It is requested that the Councils may
inform them accordingly.
Yours faithfully,
N. K. Lakhanpal
Senior Consultant”
6.By order dated 24.11.2017, the Ministry of AYUSH enhanced the age of
superannuation to 65 years for the AYUSH doctors working in the
Ministry of AYUSH and in CGHS Hospitals w.e.f. 27.09.2017. The order
dated 24.11.2017 reads thus:
“ F.NO. D.14019/4/2016-E-I(AYUSH)
Government of India
Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and
Homoeopathy
AYUSH Bhawan,
'B’ Block, GPO Complex,
INA, New Delhi - 110023
Dated, the 24
th
November, 2017.
4
ORDER
The President is pleased to enhance the age of
superannuation of the AYUSH doctors under the Ministry of
AYUSH and working in CGHS Dispensaries/Hospitals to 65
years with effect from 27.09.2017, i.e. the date of the approval
of the Union Cabinet.
2.The doctors shall hold the administrative posts only till the
date of attaining the age of 62 years and thereafter their
services shall be placed in non-administrative positions.
(ROSHAN JAGGI)
Joint Secretary to the Government of India
Tel.24651953”
7.By notification dated 05.01.2018, the Ministry of Personnel, Public
Grievances and Pensions, DoPT notified the Fundamental (Amendment)
Rules, 2018 whereby Rule 56(bb) in the Fundamental Rules, 1922 (FRs)
was substituted and the age of superannuation of AYUSH doctors was
enhanced to 65 years. The notification reads thus:
“MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND
PENSIONS
(Department of Personnel and Training)
NOTIFICATION
New Delhi, the 5th January, 2018
G.S.R. 27(E).—In exercise of the powers conferred by the
proviso to article 309 of the Constitution, the President hereby
makes the following rules further to amend the Fundamental
Rules, 1922, namely :—
(1) These rules may be called the Fundamental
(Amendment) Rules, 2018.
(2) In the Fundamental Rules, 1922, in rule 56, for
clause (bb), the following shall be substituted, namely:—
5
"(bb) The age of superannuation in respect of General Duty
Medical Officers and Specialists included in Teaching, Non-
Teaching and Public Health sub-cadres of Central Health
Service, AYUSH doctors, Civilian doctors under Directorate
General of Armed Forces Medical Services, Medical officers
of Indian Ordnance Factories Health Services, dental doctors
working under Ministry of Health and Family Welfare, doctors
of Indian Railways Medical Service and dental doctors under
Ministry of Railways, doctors of General Duty Medical
Officers sub-cadre of Central Armed Police Forces and Assam
Rifles and Specialist Medical officers of Central Armed Police
Forces and Assam Rifles shall be sixty-five years:
Provided that notwithstanding anything contained in any
other rules, above doctors except in Central Armed Police
Forces and Assam Rifles shall hold the administrative posts
till the date of attaining the age of sixty-two years and
thereafter their services shall be placed in Non-Administrative
positions."
[F.No.25012/4/2016-Estt.(A-IV)]
GYANENDRA DEV TRIPATHI, Jt.
Secy.”
8.By letter dated 25.01.2018, the appellant Council circulated the
clarification letter issued by the Ministry of AYUSH dated 31.10.2017
referred to in para 5 as above. The letter reads thus:
“F 3-8/2017-CCRAS/Vig/3094 Dated: 25 JAN 2018
To
All the Heads of Institutes/Centres/Units functioning
under this Council.
Sub: - Enhancement of superannuation age of 65 years.
Sir/Madam
The undersigned is directed to circulate herewith the
clarification on the subject mentioned above received from
6
Ministry of AYUSH vide letter FTS No.32797/2017 dated
31.10.2017 for information. The contents of Ministry’s letter
may be circulated among all officers working under your
control.
Yours faithfully
(SB MISRA)
Administrative Officer (Vigilance)
For Director General”
It is pertinent to note that the letter issued by the appellant Council dated
25.01.2018 referred to above was never made a subject matter of
challenge.
9.The respondent No. 1 herein preferred a representation dated 22.03.2018
addressed to the appellant No. 2 herein with an appeal to enhance his age
of superannuation up to 65 years i.e., up to 30.04.2023 instead of
30.04.2018. It appears from the materials on record that the
representation preferred by the respondent No. 1 herein before the above
was rejected and a notification dated 04.04.2018 was issued by the
Council stating that the respondent No. 1 herein would retire w.e.f.
30.04.2018 upon attaining the superannuation age of 60 years. The
notification dated 04.04.2018 reads thus:
“F. No. 26-3 / 2018-C.C.R.A.S. / Est. 17
Date: 04.04.2018
Notification
It is hereby notified that
Dr. Bikartan Das, Assistant Director (AYUSH), Central
Ayurvedic Research Institute for Hepatobiliary Disorder,
Bhubaneswar is retiring from Council service on attaining the
7
age of superannuation at 60 years on 30.04.2018 (pm). His
date of birth is 04.04.1958.
Accordingly, his name will be removed from the list of
C.C.R.A.S.
Signature in English Illegible
R.K. Ahluwalia
Dated 27.03.2018
Dy. Director (Administration)
Through Director General”
10.The respondent No. 1 being dissatisfied with the aforesaid went before
the CAT, Cuttack Bench, Cuttack by way of Original Application No.
210 of 2018 and prayed for the following reliefs:
“The Hon’ble Tribunal may be graciously pleased to admit the
Original Application, call for the records and issue notice to
the Respondents and upon hearing the parties declare the
impugned letter of clarification of Ministry of AYUSH dtd.
31.10.2017 as under Annexure-4 Series and the letter dtd.
04.04.2018 under Annexure 3 directing the Applicant to retire
on 30.04.2018 on attaining age of 60 years, to be illegal,
arbitrary unreasonable and discriminatory and quash the
same and direct the Respondent to allow the Applicant to
continue in the service upto 65 years as per amended rules.
x x x
Pending finalization of the Original Application, the Applicant
prays to stay the order under Annexure-3 and allow the
Applicant to continue in the service.”
11.By order dated 17.04.2018 the CAT issued notice, however, declined to
grant any interim relief as prayed for by the respondent No. 1 herein. As
CAT declined to grant any interim relief and the respondent No. 1 was to
retire on 30.04.2018, he went before the High Court of Orissa, Cuttack
by filing W. P. (C) No. 6663 of 2018 questioning the order passed by the
CAT declining to grant any interim relief. The High Court passed the
following order dated 25.04.2018:
8
“SI. No. of Order- 03
Date of Order- 25.04.2018
Heard Mr. B. Senapati, learned counsel for the
petitioner and Mr. Bose, learned Asst. Solicitor General.
This Writ Petition has been filed by the petitioner
challenging the order dated 17.04.2018 passed by the Central
Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.
260/210/2018 wherein the Tribunal while issuing notice
directed the opposite parties to file their reply on the interim
prayers and regular counter.
As it appears that the Central Government has taken a
decision under the Ministry of AYUSH to enhance the age of
retirement of the Doctors up to 65 years. However, so far as
the petitioner is concerned, since the notice of superannuation
was issued to him, he has approached the Tribunal. Since the
Original Application is pending before the Tribunal, without
expressing any opinion on the merits of the case, we dispose of
this Writ Petition with an observation that since the Doctors
who are similarly after continuing the age of 65 years after
attaining the age of 60 years, let the Petitioner continue in the
service and let the notice of superannuation under Annexure-3
shall remain stayed till disposal of the Original Application.
Mr. Bose, learned Assistant Solicitor General submitted
that the central government will file their counter within a
period of two weeks from today before the Tribunal, in such
event the Tribunal may dispose of the Original Application at
the earliest, preferably by end of June, 2018. Accordingly, we
request the Tribunal may dispose of the Original Application
at the earliest/as per its schedule. However, the petitioner
shall not claim any equity.
Sd.- S. Panda, J.
Sd.-K.R. Mohapatra”
12.Thus, from the aforesaid, it appears that the High Court protected the
respondent No. 1 till the disposal of the original application by the CAT.
9
By virtue of the aforesaid order, the respondent No. 1 continued in
service beyond 30.04.2018.
13.CAT ultimately adjudicated the original application filed by the
respondent No. 1 herein and vide its order dated 02.11.2020 rejected the
same holding that the respondent no. 1 is not entitled to seek parity with
AYUSH doctors in regard to the age of superannuation.
14.The sum and substance of the findings recorded by the CAT may be
summarised as under:
(i) The Fundamental Rules notified under Article 309 of
the Constitution of India are applicable to the employees
working directly under the Government of India. Its
applicability to the employees of the Council is on account of
Clauses 34 and 35 respectively of the Bye-Laws. This issue
was considered by the Hyderabad Bench of the CAT vide order
dated 04.09.2020, wherein it was observed that-
“Clause 34 of the bye-law makes it crystal clear that the
Governing Body has to take a decision in regard to the
enhancement of the retirement age. The Governing body
has no necessity to take a decision in the context of the
Ministry of AYUSH, Govt. of India having made it clear
that enhancement of retirement age is not applicable to an
autonomous body like CCRAS. Therefore, the G.O.I. rule
of not extending the enhancement of retirement age to
CCRAS compliments the clauses 35 & 47 of the byelaws.
We do not find any error in the decision taken by the
respondents in terms of the bye laws.”
(Emphasis supplied)
(ii)CAT did not accept the respondent No. 1’s argument
of Clause 35 and application of the Fundamental Rules mutatis
mutandis to the employees of the Council saying that the
clause relates to the general applicability of FRs,
Supplementary Rule (SRs) and General Financial Rules
(GFRs) to the Council employees; the same is subject to the
10
provision specific to Clause 34 governing superannuation of
the employees of the Council. There is nothing in Clause 35 of
the Bye-Laws to have an overriding effect on Clause 34
regarding retirement age.
(iii)Clause 47 of the Bye-Laws makes it clear that for the
matters not specifically provided in the Bye-Laws, the rules
applicable to the government employees would apply. But
since there is a specific provision regarding superannuation in
Clause 34, the rules governing government servants in respect
of superannuation will not be applicable to the employees of
the Council unless it is in accordance with Clause 34 of the
Bye-Laws.
(iv)There is nothing in the Cabinet resolution in question
and in the amended FR-56(bb) to show that these decisions are
applicable to the employees of the autonomous institutions.
The assumption of the respondent No. 1 that the FR-56, as
amended from time to time, is automatically applicable to the
Council employees is not correct since it is subject to the
provisions of Clauses 34 & 35 respectively of the Bye-Laws.
(v) There is nothing wrong with the clarification letter
dated 31.10.2017. It cannot be stated to be overriding the
Cabinet decision in question, and the objection to the letter on
that ground is not sustainable. The clarification letter was
circulated by the Council by a subsequent letter dated
25.01.2018 among its officers, after issuance of the first
amendment to FR-56. This implies that the Council, which is
the employer of the respondent No.1, had consciously
accepted the clarification of the Ministry. The respondent No.
1 had not challenged the Council’s letter dated 25.01.2018 but
had only challenged the AYUSH Ministry’s letter dated.
31.10.2017.
(vi)There is nothing in the pleadings of the respondent
No.1 to show that the amended FR-56(bb) is applicable to the
employees of the Council, except for citing the provisions of
the Bye-Laws. As per Clause 34 of the Bye-Laws, the rules
governing the retirement of the government employees will be
applicable to the employees of the Council as adopted by the
Governing Body. This means that the unless the Governing
Body adopts the changes in rules for the retirement of
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government servants, such changes are not automatically
applicable to the employees of the Council.
(vii)The CAT placed reliance on the decision of this Court
in DDA v. Joint Action Committee, Allottee of SFS Flats,
reported in (2008) 2 SCC 672 to hold that there are certain
specific grounds on which a policy decision can be subjected
to judicial review, and in this situation there was no valid
ground to challenge the policy decision of the AYUSH
Ministry as per the clarification letter dated 31.10.2017.
(viii)In the last, the CAT considered that even if the
respondent No.1’s contention that he had treated patients was
to be accepted, such acceptance could not have negated the
decision taken by the Ministry of AYUSH in its clarification
letter dated 31.01.2017, which was further accepted by the
Council in its subsequent letter dated 25.01.2018.
15.The respondent No. 1 feeling dissatisfied with the aforesaid order passed
by the CAT challenged the same before the High Court in W.P.(C) No.
30620 of 2020. The High Court allowed the writ application filed by the
respondent No. 1 holding as under:
“On the analysis of the above factual matrix, we find that
though the petitioner is functioning as Researcher under the
Research Council/ National Institute, but as a requirement for
upgrading the research skill, he treats patients in the OPD and
IPD. In fact, he performs similar nature of duties like AYUSH
doctor. Though his service condition is covered by different
laws, but for all practical purposes, the petitioner is
performing like a doctor. Though there is a clear-cut
distinguishing features between the AYUSH doctor and that of
the petitioner. The petitioner herein is also treating the
patients like AYUSH doctors in the OPDs and IPDs on regular
basis.
The Clause-34 and 35 of the bye-laws extends the force of the
argument of the petitioner to be treated as AYUSH doctor, even
though he has been appointed as Researcher.
12
Clauses-34 & 35 of the said bye-laws deal with
superannuation which read as under:
“34. The rules governing the retirement of
employees of the Government of India as amended
from time to time or as desired by the Governing
Body shall apply to the employees of the Central
Council. Provided that an employee can be retained
in service after prescribed age of superannuation if
he continues to be physically fit and efficient and it
is in the interest of the Central Council to retain him
in service.
35. The Fundamental and Supplementary Rules and
General Financial Rules of Government of India as
amended from time to time shall apply mutatis
mutandis to employees of the Central Council.”
In view of the above, we are of the opinion that the view taken
by the learned Tribunal vide its decision dated 02.11.2020 is
erroneous.
The learned CAT, Cuttack Bench, Cuttack has failed to
consider the petitioner’s duty and devotion in treating the
OPD and IPD patients. Hence, the order dated 02.11.2020
passed by the learned CAT, Cuttack Bench, Cuttack is liable to
be quashed and accordingly, it is quashed.”
(Emphasis supplied)
16.Thus, the plain reading of the impugned order passed by the High Court
referred to above would indicate that what weighed with the High Court
was that the respondent No. 1 herein used to treat patients like AYUSH
doctors in the Out-Patient Departments (OPDs) and In-Patient
Departments (IPDs) on regular basis and the duty and devotion exhibited
by the respondent No. 1 in treating the OPD and IPD patients would
entitle him to claim the benefit of the enhanced age of superannuation
i.e., up to 65 years. The High Court recorded the said finding despite
acknowledging that the respondent No. 1 was appointed as a researcher
13
under the Research Council and his service conditions were governed by
different laws. Of course, the High Court also took support of Clauses 34
and 35 respectively of the Bye-Laws while granting relief to the
respondent No. 1.
17.In such circumstances referred to above, the appellants are here before
this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
18.Mr. Aman Lekhi, the learned Senior Counsel appearing for the appellants
made the following submissions:
a. The issue involved in the present case is the entitlement to seek
extension in superannuation age as per FR 56(bb) and its applicability to
the appellant Council which is an autonomous body. The said FR has
been amended from time to time and the rule applicable in the present
case i.e. at the time of the retirement of the respondent No. 1 is of
05.01.2018.
b. The respondent No. 1 was an employee of CCRAS having joined
as Research Assistant and his terms of service were governed under the
Rules of CCRAS. Subsequently, he was promoted to the post of
Research Officer and at the time of superannuation he was holding the
post of an Assistant Director.
c. The relevant clauses of CCRAS which are applicable to the facts
of the present case are Clauses 25(b), 34, 35 and 47 of CCRAS Bye-
Laws which are extracted herein for the sake of convenience:
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“Appointments
25.(a)...
(b) Recruitments, appointments and promotions to all posts shall be
made according to the recruitment rules laid down by the
Governing Body or designated competent authority for the posts.
Selection shall be made through the Selection
Committees/Departmental Promotion Committees duly constituted
with the approval of the respective appointing authority.
Superannuation
34. The rules governing the retirement of employees of Government
of India as amended from time to time or as desired by the
Governing Body shall apply to the employees of the Central
Council. Provided that an employee can be retained in service after
the prescribed age of superannuation if he continues to be
physically fit and efficient and it is in the interest of the Central
Council to retain him in service.
35. The Fundamental and Supplementary Rules and General
Financial Rules of Government of India as amended from time to
time shall apply mutatis mutandis to employees of the Central
Council.
Xxx xxx xxx
Other Conditions of Service
47. In respect of matters not provided for in these regulations
the rules as applicable to Central Government servants
regarding the general conditions of service, pay, allowances
T.A. and daily allowances, foreign service terms, deputation
in India and abroad, etc. and orders and decisions issued in
this regard by the Central Government from time to time
shall apply mutatis mutandis to the employees of the Central
Council.”
(Emphasis supplied)
d. A bare perusal of the aforesaid rules indicates that the employees
are recruited through a selection committee of the Council and the FRs
15
will not directly apply where the Governing Body finalises the rules of
superannuation.
e. In terms of Clause 34, the Governing Body had decided to fix the
age of superannuation to be 60 years on 01.12.1998. The said decision
was ratified on 27.01.2000 in the 14th Meeting of the Governing Body
of CCRAS as Agenda Item No. GB 14.4.
f. The decision of the Governing Body as aforementioned applied
on 30.04.2018 i.e. the date of superannuation of the Respondent.
g. No reference has been made by the respondent No. 1 to the
aforementioned decision of the governing body in his representation. In
fact, the Respondent relied on Clause 34 of the Bye-Laws which on its
terms indicates that the rules governing the retirement of employees of
Government of India will not apply in the instant case.
h. Reliance placed by the respondent No. 1 in its representation on
the case of Salma Khatoon is equally inapt as the relevant rule in the said
case was different from the Clause 34 of Bye-Laws herein. The said case
pertained to the Central Council for Research in Unani Medicine
(‘CCRUM’) which is governed by its own rules and regulation and the
applicable rule in that case was worded differently. Moreover, the said
case is still pending before the High Court of Delhi. The interim order in
favour of Salma Khatoon was vacated by this Court in the case of
Central Council for Research in Unani Medicine v. Dr. Salma
Khatoon and Others reported as 2020 SCC OnLine SC 1332.
i. The Central Administrative Tribunal, Cuttack Bench (‘CAT’)
rightly held that the assumption of the respondent No. 1 that FR 56 is
16
automatically applicable is not correct as it is subject to Clause 34 of the
Bye-Laws of CCRAS.
j. The very same grounds as aforesaid were urged by the
Appellants in the Counter Affidavit filed by them before the High Court
of Orissa.
k. While passing the impugned order, the High Court acknowledges
that the respondent No. 1 was working as a Researcher and his service
conditions were covered by a different clause. Strangely, however, the
High Court makes no reference to Clause 34 of the Bye-Laws. This is
despite the fact that the appellants had clearly pleaded that the
respondent was not entitled to relief in terms of Clause 34 and that FR 56
was not applicable to him. Pertinently, this submission has been recorded
by the High Court itself as also the clarification of 31.10.2017 and the
separate method of recruitment. These factors were not considered while
passing the impugned order.
l. The impugned order of the High Court is unsustainable as it is
against the following settled propositions of law:
(i) Even a Constitutional Court cannot substitute the existing
service conditions of an employee. V.M. Gadre v. M.G. Diwan and
Others, (1996) 3 SCC 454 para 10 at page 459.
(ii) A writ in the nature of mandamus cannot be issued to
frame a policy in a particular manner. Census Commissioner and
Others v. R. Krishnamurthy, (2015) 2 SCC 796 para 25-26 at page
806-807.
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(iii) The Court cannot fasten monetary liability on State
instrumentality unless it emerges from the rights and liabilities
canvassed in the lis itself. State of Himachal Pradesh and Others
v. Rajesh Chander Sood and Others, (2016) 10 SCC 77 para 88 at
page 160.
(iv) Employees of autonomous bodies are governed by their own
rules and Bye-Laws and they cannot claim parity with government
employees. T.M. Sampath and Others v. Secretary, Ministry of
Water Resources and Others, (2015) 5 SCC 333 para 3 at page 336
& para 15 at page 345; State of Maharashtra and Another v.
Bhagwan and Others, (2022) 4 SCC 193 para 24-26 at page 203-
204.
m. The reliance placed by the respondent No. 1 on the judgment of
this Court North Delhi Municipal Corporation v. Dr. Ram Naresh
Sharma and Others reported in 2021 SCC Online SC 540 is completely
misplaced. The issue in the said case pertained to different dates of
enhancement of age of superannuation of AYUSH and CHS doctors of
NDMC. In the said case, the policy decision of enhancing the age of
superannuation to 65 years was adopted by NDMC for AYUSH doctors
but it was applied from a later date which was found to be
discriminatory. Whereas, in the present case the appellant is an
autonomous body with its own service rules and the government
decision was never adopted by the Governing Body at any point of time.
n. The reference made to the appointment of Director of the
Institute of Teaching and Research in Ayurveda (‘ITRA’) in context with
the retirement age of 65 years is wholly misplaced. The appointments to
ITRA are made as per the provisions of the Institute of Teaching and
18
Research in Ayurveda Act, 2020. Section 5(e) of the Act, 2020 provides
for the tenure of the Director of 5 years or until the age of 65 years
whichever is earlier. Hence, the respondent No. 1 who is not covered
under the provisions of the said Act cannot claim parity with the
employees of ITRA.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1
19.Mr. Col. R. Balasubramanian, the learned Senior Counsel appearing for
the respondent No. 1 made the following submissions:
a. His client is an AYUSH Doctor being fully and duly qualified in
Bachelor of Ayurvedic Medicine and Surgery (BAMS). The fact that his
client is an AYUSH Doctor is admitted by the appellants in their counter
affidavit filed before the CAT. As per the existing rule, those who have
completed BAMS from any University of India, which is recognised by
the Central Council for Indian Medicine (CCIM) and who have
registered under any State Council of Indian Medicine or CCIM, New
Delhi are AYUSH Doctors. This is also admitted by AYUSH in their RTI
reply.
b. That being a duly qualified AYUSH doctor, the respondent No. 1
was appointed as a Research Associate in the Central Research Institute
(Ayurveda), Bhuvaneshwar under the Control of the Ministry of
AYUSH, vide appointment letter dated 03.10.1985. The terms of
appointment specifically stated inter alia, in para 2 (vi) & (vii) thereof,
that “Private or Consultancy service is strictly prohibited” and that
“Other terms and conditions of service will be governed by the rules and
instruction applicable to similar personnel under the Government of
19
India” respectively. Further it was stated that the pay and dearness
allowances etc. will be as applicable to the Central Government servants
of equivalent status and will be governed by the CCS Rules as amended
by the Government of India from time to time.
c. The fact that the Institute where the respondent No. 1was serving
is under the ‘pervasive control’ of the Government/Ministry is admitted
by the appellants in their counter affidavit filed before the CAT and also
in the Counter affidavit filed before the High Court. Therefore, two
factual aspects are admitted and it is beyond any doubt that (i) the
respondent No. 1 is an AYUSH Doctor and (ii) the Institute is under the
administrative control of the Ministry of AYUSH.
d. In view of the aforesaid admitted facts, it is evident more
particularly from the Union Cabinet decision of the appellants that the
Government of India had approved the enhancement of age of
superannuation from 60 to 65 years. This decision of the Cabinet was
applicable to the respondent No. 1. In terms of the said decision at “iii.
that the superannuation age has been enhanced to 65 years in respect of
doctors under their administrative control of the respective Ministries/
Departments [M/o of AYUSH (AYUSH Doctors,………”.
e. The Cabinet has not made any distinction or difference in
treatment between the AYUSH Doctors working under the administrative
control of the Ministry of AYUSH in the matter of enhancement of
retirement age up to 65 years. It is reiterated that only two conditions are
required to be satisfied to avail the enhanced age of superannuation up to
65 years of age viz., (i) AYUSH Doctor and (ii) being under the
Administrative Control of the Ministry. Therefore, the respondent No. 1
20
is squarely covered by the Cabinet’s decision and is entitled to the
enhanced age of retirement of 65 years.
f. That accordingly, Rule 56(bb) of the Fundamental Rules, 1922,
which is a statutory rule framed under the Proviso to Article 309 of the
Constitution of India, was amended vide Gazette Notification dated 05th
January, 2018 in terms of which the age of superannuation inter alia of
the AYUSH doctors [3rd line of amended Rule (bb) shall be sixty-five
years. This was further amended vide the Gazette Notification dated
11.08.2018 categorically laying down that the age of superannuation of
doctors belonging to various cadres including AYUSH and working
under the Ministry of AYUSH shall be 62 years unless they opt to
continue in teaching, consultancy, etc in which case it shall extend up to
65 years. Therefore, even in the 2nd Gazette all the AYUSH doctors
working under the Ministry of AYUSH were included without any
distinction whether working in the Ministry or in any autonomous body.
g. That contrary to the Cabinet decision, the impugned letter dated
31.10.2017 was issued denying the extension of age up to 65 years to the
AYUSH doctors working in autonomous bodies like the respondent No.
1. Para 2 of said letter is not sustainable in law and on facts for the
following amongst other reasons:-
i. That the decision was a Cabinet decision and the same could not have
been diluted or misinterpreted by the impugned letter of a subordinate
functionary viz., a Senior Consultant working in the Ministry of
AYUSH by excluding the AYUSH Doctors working in the autonomous
bodies under the administrative control of the Ministry of AYUSH.
ii. That there is no Cabinet approval to exclude the AYUSH doctors
working in autonomous bodies. Therefore, the impugned letter is
21
contrary to the Cabinet decision and on this count alone the same
cannot be enforced against the respondent No. 1.
iii. The letter dated 31.10.2017 in any case stood overruled/superseded
in view of the subsequent Gazettes dated 05.01.2018 and 11.08.2018
respectively.
iv. That the sub classification introduced by the impugned letter besides
being contrary to the Cabinet decision, is a suspect classification, and it
is directly violative of Articles 14, 16 and 21 respectively of the
Constitution of India. The reason being first, there is no rationale or
nexus with the object which it seeks to achieve i.e, exclusion of the
AYUSH Doctors working in autonomous bodies and secondly, it
creates an artificial distinction of AYUSH doctors working in the
Ministry and elsewhere, although both are similarly qualified and
discharge functions of OPD/IPD treatment of patients including surgery
etc, albeit at different places. The respondent No. 1 also drew NPA
(Non-Practicing Allowance). These facts have not been disputed.
v. That it is well settled in law where the classification has no nexus
with the object it seeks to achieve and that there is artificial distinction
the same would fall foul of Articles 14 and 21 in the matter of
conditions of service of an employee.
vi. That even otherwise, the respondent No. 1 is entitled to the benefit
of enhanced age of retirement of 65 years on the strength of plain
reading of Clause 34 of the Society Rules extracted @ Pg 12 of the
Judgement by the High Court, on which extensive reliance is placed by
the appellants contending that the applicability of the extension of age
is dependent upon the decision to be taken by the Governing Body of
22
the autonomous body, and hence the Central Govt rule of age of
superannuation is not automatic. This contention is not correct for the
following reasons:
- Clause 34 is in two parts. The first part is that the rules
governing the retirement of employees of the Government of
India as amended from to time shall apply to the employees of the
Central Council. The plain and simple reading of this part makes
it clear and unambiguous that the rules governing the retirement
of Central Government employees as amended from time to time
shall apply.
- The second part of Clause 34 “or as desired by the Governing
Body” is merely an enabling provision to enable the Governing
Body to take a decision regarding retention of an employee
beyond the prescribed age of superannuation. In other words, the
‘desire’ of Governing Body is to extend the age of an employee
even beyond prescribed age if he continues to be physically fit
and efficient and it is in the interest of the Council to retain him in
service.
- Therefore, the second part of Clause 34 really gives power to the
Governing Body to retain an employee even after the prescribed
age of superannuation provided the conditions for grant of such
retention is met. This power cannot be negatively read to clothe
the Governing Body with power to prescribe less age of
superannuation than what is prescribed by the Central
Government from time to time.
23
- While the age of superannuation of an employee of the Central
Council shall be at par with the age of superannuation prescribed
by the Central Government, the Governing body has the enabling
power to retain the employee even beyond the age of
superannuation in organisational interest.
- It is submitted that Clause 34 cannot be read negatively to deny
the age of increase given by the Cabinet to AYUSH Doctors by
wrongly interpreting Clause 34.
vii. That the terms and conditions of service of employees of the
Council on all other aspects like Provident Fund/ GPF, Pension,
Gratuity, Leave Rules, Scales of Pay, Conduct Rules, and other
conditions of service are the same as applicable to Central Government
employees as set out in Clauses 31, 32, 33, 42, 44, and 47 respectively
of the Rules. Therefore, in the matter of age of superannuation the
respondent No. 1 cannot be treated differently.
viii. That the appellants on one hand claim that the AYUSH doctors
working in autonomous bodies are not entitled to increase in age of
superannuation up to 65 years whereas other AYUSH doctors working
in the Ministry of AYUSH and other autonomous institutions have been
granted extension of age up to 65 years.
ix. That similarly, AYUSH doctors working in CGHS have been
granted increase in age up to 65 years vide letter dated 24.11.2017.
Therefore, the letter not to grant identical benefit to the respondent No.
1 is not only arbitrary but it is discriminatory and hence it is
unsustainable.
24
h. This Court has dealt with the issue of extension of age of
superannuation of similar AYUSH doctors working in the NDMC in Dr.
Ram Naresh Sharma (supra), where in paras 23 and 24 it was held as
follows:
“23. The common contention of the appellants before us is that
classification of AYUSH doctors and doctors under CHS in
different categories is reasonable and permissible in law. This
however does not appeal to us and we are inclined to agree
with the findings of the Tribunal and the Delhi High Court that
the classification is discriminatory and unreasonable since
doctors under both segments are performing the same function
of treating and healing their patients. The only difference is
that AYUSH doctors are using indigenous systems of medicine
like Ayurveda, Unani, etc. and CHS doctors are using
Allopathy for tending to their patients. In our understanding,
the mode of treatment by itself under the prevalent scheme of
things, does not qualify as an intelligible differentia.
Therefore, such unreasonable classification and
discrimination based on it would surely be inconsistent with
Article 14 of the Constitution. The order of AYUSH Ministry
dated 24.11.2017 extending the age of superannuation to 65
Years also endorses such a view. This extension is in tune with
the notification of Ministry of Health and Family Welfare
dated 31.05.2016.
24. The doctors, both under AYUSH and CHS, render service
to patients and on this core aspect, there is nothing to
distinguish them. Therefore, no rational justification is seen
for having different dates for bestowing the benefit of extended
age of superannuation to these two categories of doctors.
Hence, the order of AYUSH Ministry (F. No. D. 14019/4/2016-
E-I (AYUSH)) dated 24.11.2017 must be retrospectively
applied from 31.05.2016 to all concerned respondent-doctors,
in the present appeals. All consequences must follow from this
conclusion.”
25
i. The appeal deserves to be dismissed with costs and directions be
issued to the appellants to release the consequential benefits including
arrears of salary for the period from 01.05 2018 to 30.04.2023 which
would cover the entire period of 5 years of increase in age of
superannuation. The respondent No. 1 worked from 25.04.2018
following the order of stay grated by the High Court till 05.04.2021
when stay was granted by this Court following which the services of the
respondent No. 1 were abruptly ended.
SUBMISSIONS ON BEHALF OF THE INTERVENORS/APPLICANTS
IN I.A. NO. 90789 OF 2022 IN SLP (C) NO. 4110 OF 2021
20.It is the case of the intervenors/applicants that their W.P.(C) Nos. 9554 of
2018 and 9584 of 2018 respectively are pending adjudication before the
High Court of Delhi and one Original Application No. 272 of 2020
before CAT, Lucknow Bench. They submitted that the final outcome of
the present appeal will have a direct impact on the aforesaid litigations.
The intervenors claim that they are doctors under another corporation of
AYUSH, namely, CCRUM.
21.Submissions canvassed on their behalf are as under:
a. That the Intervenors/applicants are qualified Unani Doctors by
qualification and are equivalent to any other qualified Doctors, be it
MBBS Doctors or otherwise.
b. The Intervenors/applicants are working under the Direct
Administrative Control of Ministry of AYUSH and their service
conditions are governed by the Ministry in spite of them performing the
duties in CCRUM.
26
c. The Intervenors/applicants have been receiving the Non-Practicing
Allowance while working under CCRUM which clearly indicates that
the Intervenors/applicants are indeed qualified doctors at par with the
other Doctors who also get the same allowances.
d. The Recruitment Rules which apply to the Intervenors/applicants are:
“for functional purpose, a medical officer (Ayurveda) when posted in
the Ministry of AYUSH will be designated as Research officer
(Ayurveda) and thus the medical officer and Research officer are one
and the same and there cannot be any distinction between the two”.
e. That the Government of India (Cabinet) vide its order has granted the
benefit of enhancement of superannuation age to 65 years to the doctors
under the administrative control of the respective
Ministries/Department (Ministry of AYUSH) (AYUSH doctors) which
is fully applicable to the doctors working under the appellant council
but the Ministry of AYUSH erroneously by their mis-interpretation has
excluded the benefits to doctors working under autonomous bodies like
the council. It is because of the wrong interpretation made by the
Ministry of AYUSH, the said benefit was erroneously denied to the
AYUSH doctors like the Intervenors/applicants.
f. That the Govt. of India vide its own order dated 02.11.2020 has given
the said benefit to the Director of ITRA and enhanced the age of
superannuation to 65 years. Therefore, as per own interpretation made
by the Ministry of AYUSH, the benefit of enhancement of
superannuation of age is fully applicable to all doctors (working in any
capacity including researcher) who are under the administrative control
of AYUSH and when Govt. of India (Cabinet) did not exclude the
27
autonomous institution like Intervenors/applicants council then the
Ministry of AYUSH has no right to differentiate and deny the benefit of
superannuation to the Intervenors/applicants.
g. It is submitted that Clauses-34 & 35 of the Bye-Laws issued by the
CCRAS, deals with superannuation and prescribes that the
Fundamental and Supplementary Rules and General Financial Rules of
the Government of India as amended from time to time shall apply
mutatis mutandis to the employees of the Central Council.
h. It is submitted that the Intervenors/applicants during their entire
tenure performed duties like treating patients in OPD and IPD along
with research activities which would clearly establish that the
Intervenors/applicants have been attending the patients, both, the OPDs
and IPDs. The Intervenors/applicants have worked for prestigious
hospitals like the RML & DDU while performing duties which include
treating the patients along with Research work.
i. It is submitted that Non-Practicing Allowance has been given to the
doctors working under Intervenor/applicants council and the said
benefit was given to the Intervenor/applicants as well which clearly
contradicts the stand of council that the Intervenors/applicants were not
performing the duties of doctors. In fact, the Non-Practicing Allowance
has been sanctioned only on the basis that the Intervenors/applicants
are qualified doctors and are performing the duties of Clinical Doctor
which includes the OPD & IPD duties and thus are not allowed to
practice outside the scope of their official duties and in lieu were given
the Non-Practicing Allowance.
28
j. It is submitted that those doctors are considered as AYUSH doctors
who have completed the degree course either in BAMS, BHMS,
BUMS, BNYS & BSM in Ayurveda, Homeopathy, Unami, Siddha,
Yoga and Naturopathy and are at par with any other qualified Doctors.
k. The Intervenors/applicants Council is an autonomous body under the
Ministry of AYUSH, Government of India and the Council has a
Governing Body comprising of the Union Minister-In-Charge of
AYUSH as its President and Secretary, Ministry of AYUSH as its Vice
President. Its Bye-Laws reveal the pervasive control of the Union
Government over the Central Council.
l. The aforesaid is clearly depicted from the Bye-Laws of
Intervenor/applicants council. That the Clauses - 34 and 35 of the Bye-
Laws deal with the superannuation of the employees of the Council
which are quoted herein below: Clauses-34 & 35 of the said Bye-Laws
deal with superannuation which read as under:
“34. The rules governing the retirement of employees of the
Government of India as amended from time to time or as
desired by the Governing Body shall apply to the employees of
the Central Council. Provided that an employee can be retired
in service after prescribed age of superannuation if he
continues to be physically fit and efficient and it is in the
interest of the Central Council to retain him in service.
35. The Fundamental and Supplementary Rules and General
Financial Rules of Government of India as amended from time
to time shall apply mutatis mutandis to employees of the
Central Council.”
m. That, the clarification of Ministry of AYUSH vide its letter dated
31.10.2017 is not only misconceived but also uncalled for, arbitrary and
discriminatory. The same is also contrary to the object for which the
29
Central Council is established. The aforesaid clarification would rather
frustrate the objectives for which the Central Council was established.
The same is against Public Policy and liable to be struck down and the
High Court of Orrisa rightly gave decision in favour of the respondent
in the instant appeal.
n. That the Intervenor/applicants though were appointed as researcher
but along with that they have been performing duties of doctors like
treating patient in OPD, IPD etc. and for which requisite certificate was
issued to them time to time.
ANALYSIS
22.Having heard the learned counsel appearing for the parties and having
gone through materials placed on record the only question that falls for
our consideration is whether the High Court committed any error in
passing the impugned judgment?
23.The appellant Council is an autonomous body registered under the
Society Registration Act, 1860 and is administratively controlled by the
Ministry of AYUSH, Government of India. It is a body constituted for
the purpose of undertaking, cooperating, formulating, developing and
promoting the research on scientific guidelines in Ayurvedic Sciences.
The recruitment rules, procedure and the service conditions of these
employees are governed by the Bye-Laws and Memorandum of
Association of the Council.
24.With a view to appreciate the rival contentions raised by the litigating
parties before us, we must look into the Clauses 25(b), 34, 35 and 47 of
30
the Bye-Laws in the Memorandum of Association of the Central Council
for Research in Ayurvedic Sciences:
“Appointments
25. (a)...
(b) Recruitments, appointments and promotions to all posts
shall be made according to the recruitment rules laid down by
the Governing Body or designated competent authority for the
posts. Selection shall be made through the Selection
Committees/Departmental Promotion Committees duly
constituted with the approval of the respective appointing
authority.
Superannuation
34. The rules governing the retirement of employees of the
Government of India as amended from time to time or as
desired by the Governing Body shall apply to the employees
of the Central Council. Provided that an employee can be
retained in service after the prescribed age of superannuation
if he continues to be physically fit and efficient and it is in the
interest of the Central Council to retain him in service.
35. The Fundamental and Supplementary Rules and General
Financial Rules of Government of India as amended from time
to time shall apply mutatis mutandis to employees of the
Central Council.
Other Conditions of Service
47. In respect of matters not provided for in these regulations
the rules as applicable to Central Government servants
regarding the general conditions of service, pay, allowances
T.A. and daily allowances, foreign service terms, deputation in
India and abroad, etc. and orders and decisions issued in this
regard by the Central Government from time to time shall
apply mutatis mutandis to the employees of the Central
Council.”
(Emphasis Supplied)
31
25.A plain reading of the aforesaid clauses of the Bye-Laws would indicate
that the employees are recruited through a selection committee of the
Council. It further indicates that the Fundamental Rules, 1922 will have
no direct application in cases where the governing body finalises the
rules of superannuation. In terms of Clause 34 of the Bye-Laws, the
governing body had decided the age of superannuation to be 60 years on
01.12.1998. The said decision was ratified on 27.01.2000, in the 14
th
meeting of the governing body of the Council.
26.In our view, the learned Senior Counsel appearing for the appellants is
right in his submission that the decision of the governing body dated
27.12.2000 applied on 30.04.2018 i.e., the date of superannuation of the
respondent No. 1. It is not in dispute that the respondent No. 1 was
working as a researcher and the service conditions of a Research
Assistant are altogether different compared to the AYUSH Doctor. It is
also not in dispute that the method of recruitment of the respondent No.
1 is different compared to that with the AYUSH doctors.
27.The principal argument canvassed by the learned Senior Counsel
appearing on behalf of the respondent No. 1 is that the provisions of FR
56(bb) would apply to the respondent No. 1 in his capacity as an
employee of the Council in view of Clause 35 of the Bye-Laws of the
Council referred to above, by which the provisions of the FR and SR
would apply to the employees of the Council mutatis mutandis. On the
other hand, the case put up by the appellants is that the said provisions
are not applicable to the employees of the Council in view of the
clarification of the Ministry dated 31.10.2017. In regard to the
clarification of the Ministry vide its letter dated 31.10.2017, the stance of
32
the respondent No. 1 is that such clarification cannot override the
decision of the Cabinet or the provisions of the FR 56 as amended.
28.The aforesaid aspect was duly considered by the CAT. The CAT rightly
took the view that the argument canvassed on behalf of the respondent
No. 1, that the Council failed to consider the Clause 35 of the Bye-Laws
referred to above, which states that the FR, SR and (GFR) as amended
from time to time shall apply mutatis mutandis to employees of the
Council, was without any merit and deserved to be rejected. The CAT in
our opinion rightly rejected such argument. We say so because the
applicability would be subject to the provision specific to the Clause 34
governing superannuation of the employees of the Council.
29.There is nothing in Clause 35 of the Bye-Laws referred to above on the
basis of which, it could be said that the same will have an overriding
effect on Clause 34 as regards the age of retirement. Clause 47 of the
Bye-Laws makes it abundantly clear that for the matters not specifically
provided in the Bye-Laws, the rules applicable to the government
employees would apply. However, as there is a specific provision
regarding superannuation in Clause 34, the rules governing the
government services in respect of superannuation are not applicable to
the employees of the Council unless it is in accordance with Clause 34 of
the Bye-Laws.
30.We shall now deal with one another submission canvassed by Mr. R.
Balasubramanian, the learned Senior Counsel appearing on behalf of the
respondent No. 1. It was submitted that Clause 34 of the Bye-Laws
should be read in two parts. The first part states that the Rules governing
the retirement of employees of the Government of India as amended
33
from time to time would apply to the employees of the Central Council.
According to the learned Senior Counsel, the second part of the Clause
34 which reads “or as desired by the governing body” is merely an
enabling provision empowering the governing body to take a decision
whether an employee deserves to be retained beyond the prescribed age
of superannuation. According to the learned Senior Counsel such power
should not be read in a negative form to clothe the governing body with
the power to prescribe lesser age of superannuation than what has been
prescribed by the Central Government from time to time. We are afraid,
we are not in a position to accept such an argument. The language of
Clause 34 is very clear. What is important to note while reading the
Clause 34 is the word “or”. Thereafter, there is a proviso which says that
an employee can be retained in service after prescribed age of
superannuation if he continues to be physically fit and efficient and it is
in the interest of the Central Counsel to retain him in the service.
31.The expression “the rules governing the retirement of employees of
Government of India as amended from time to time” is separated from
the rest of the part of the Bye-Law by the word “or” which is disjunctive
and giving natural meaning to the said word separates the rules that may
be framed by the Government of India and the rules that the Council may
desire to frame as regards the age of retirement of the employees of the
Council.
32.It is a well-established principle of statutory interpretation that the word
“or” is normally disjunctive and the word “and” is normally conjunctive.
Both of them can be read as vice-versa, but that interpretation is adopted
only where the intention of the legislature is manifest.
34
33.Justice G.P. Singh in the Principles of Statutory
Interpretation (Thirteenth Edition 2012) page 485 has stated as follows:
“The word ‘or’ is normally disjunctive and ‘and’ is normally
conjunctive but at time they are read as vice versa to give
effect to the manifest intention of the Legislature as disclosed
from the context. As stated by SCRUTTON, L.J.: “You do
sometimes read “or” as ‘and’ and in a statute. But you do not
do it unless you are obliged because ‘or’ does not generally
mean ‘and’ and ‘and’ does not generally mean ‘or’. And as
pointed out by LORD HALSBURY the reading of ‘or’ as ‘and’
is not to be resorted to, “unless some other part of the same
statute or the clear intention of it requires that to be done”.
Where provision is clear and unambiguous the word ‘or’
cannot be read as ‘and’ by applying the principle of reading
down. But if the literal reading of the words produces an
unintelligible or absurd, result ‘and’ may be read for ‘or’ and
‘or’ for ‘and’ even though the result of so modifying the words
is less favourable to the subject provided that the intention of
the Legislature is otherwise quite clear. Conversely if reading
of ‘and’ and ‘or’ produces grammatical distortion and makes
no sense of the portion following ‘and’, ‘or’ cannot be read in
place of ‘and’. The alternatives joined by ‘or’ need not always
be mutually exclusive.”
34.Thus, in view of the aforesaid discussion, we reject the submission
canvassed on behalf of the respondent No. 1 as regards the interpretation
of the Clause 34 of the Bye-Laws. In this context, we may only say that
the governing body of the Council is not obliged to take a decision in
tune with the decision of the Ministry of AYUSH regarding
superannuation more particularly having made it clear that enhancement
of retirement age is not applicable to an autonomous body like CCRAS.
35.We are also not impressed by the submission canvassed on behalf of the
respondent No. 1 that as the terms and conditions of the services of the
35
employees of the Council on all other aspects like the Provident
Fund/GPF, Pension, Gratuity, Leave Rules, Scales of Pay, Conduct Rules
and other conditions of services are the same as applicable to the
employees of the Central Government as set out in Clauses 31, 32, 33,
42, 44 and 47 respectively of the Bye-Laws, the matter of age of
superannuation of the respondent No. 1 should not be treated differently.
What should be the age of superannuation is a matter of policy. It is not
within the domain of the court to legislate. It is only if a policy decision
or a notification is arbitrary it may invite the frowns of Article 14 of the
Constitution. In any case, the question of age of retirement stands on a
different footing from the service conditions relating to pay and
allowances and revision of pay.
36.We may at this stage, refer to the following decision in Tamil Nadu
Education Department Ministerial and General Subordinate Services
Association and Others v. State of Tamil Nadu and Others reported in
(1980) 3 SCC 97 : [ SCC pp. 99 SCC (L&S) p. 296, para 7]
“7. In Service Jurisprudence integration is a complicated
administrative problem where, in doing broad justice to many,
some bruise to a few cannot be ruled out. Some play in the
joints, even some wobbling, must be left to government without
fussy forensic monitoring, since the administration has been
entrusted by the Constitution to the executive, not to the court.
All life, including administrative life, involves experiment,
trial and error, but within the leading strings of fundamental
rights, and, absent unconstitutional ‘excesses’, judicial
correction is not right. …..”
37.It is too late in the day for the respondent No. 1 to raise all such issues
including infringement of Article 14 of the Constitution on the ground of
artificial distinction between the Research Assistant and AYUSH
Doctors. The respondent No. 1 knew from day one i.e., from the date of
36
his appointment that he was being appointed as a Research Assistant. His
service conditions and mode of recruitment are different compared to the
AYUSH Doctors. It is a different thing that he might have treated the
patients but that by itself would not entitle him to claim that his age of
superannuation should be at par with the AYUSH Doctors.
38.In the aforesaid context, we may refer to and rely upon a decision of this
Court in the case of State of Bihar and Another v. Teachers’
Association of Govt. Engineering College and Others, reported in
(2000) 10 SCC 527 wherein, the respondents were teachers of three
engineering colleges owned by the State of Bihar. They were recruited
through the Bihar Public Service Commission. Their service conditions
were governed by the Bihar Service Code. Under the relevant provisions
of the Bihar Service Code, the age of superannuation up to 1989, was 58
years. However, with effect from 01.10.1989 it was raised to 60 years.
They claimed that their age of retirement should be the same as the age
of retirement of Bihar Engineering College which was a college of the
Patna University. Its teachers were recruited through the University
Service Commission. Their service conditions were governed under the
Patna University Act. At the relevant time, the age of retirement for
university teachers was 62 years. However, with effect from 15.08.1992
the age of retirement was reduced to 60 years. The respondent’s claim
was upheld by the High Court. Allowing the State’s appeal, this Court
held:
“5. The respondents contend that their age of retirement
should be the same as the age of retirement of university
teachers employed in Bihar Engineering College, Patna. But
the terms and conditions of service of teachers in the three
engineering colleges of the State are different from the terms
and conditions of service of the university teachers employed
37
in Bihar Engineering College at Patna. The authority
responsible for recruitment is also different. The method of
recruitment is different and service conditions are prescribed
under different rules and regulations and/or under a separate
Act. We fail to see how in respect of the teachers who are
government servants, governed by the Bihar Service Code, the
age of superannuation should be different from the age of
superannuation for all other government servants governed by
the Bihar Service Code. The High Court ought not to have
equated the service conditions in the three State colleges with
the service conditions in a University college. Application of
Article 14, in these circumstances, is misconceived, when there
are valid criteria for differentiating between the service
conditions in the two sets of colleges. In the premises the
impugned judgment of the High Court insofar as it directs that
the age of superannuation of teachers working in the three
engineering colleges other than Bihar College of Engineering,
Patna should be brought on par with the age of
superannuation of those working in Bihar College of
Engineering at Patna, is set aside. The further direction to pay
arrears or give benefits flowing from the extended age of
superannuation is also set aside. The appeals are allowed
accordingly.”
39.The only idea with which we have referred to and relied upon the
aforesaid decision is to convey that the case on hand is not one of
discrimination. Article 14 of the Constitution has no application having
regard to the facts of the present case.
40.Mr. Lekhi, the learned Senior Council appearing for the appellants
placed strong reliance on two decisions of this Court: (i) T.M. Sampath
(supra) and (ii) Bhagwan (supra). Both these decisions have been relied
upon to fortify the contention that the employees of autonomous bodies
are governed by their own rules and Bye-Laws and they cannot claim
parity with the government employees. We must look into both these
38
decisions. Paras 3, 15, 16 and 17 respectively of T.M. Sampath (supra)
are as follows:
“3. The facts of these appeals are briefly stated hereinafter.
The appellants herein are the employees of National Water
Development Agency (“NWDA”) which was established as a
society in July 1982 and was registered under the Societies
Registration Act, 1860. The Society NWDA, which falls under
the aegis and control, both administrative and financial, of the
Ministry of Water Resources, is fully funded by the
Government of India, headed by the Union Minister for Water
Resources as the President. NWDA framed rules and
regulations for its smooth functioning. Whatever emoluments
have been prescribed for the government servants by the
Central Government Office Memorandum (“the OM”, for
short) the same apply mutatis mutandis to the employees of
NWDA. Bye-law 28 of NWDA also mandates that the rules
and orders applicable to the Central Government employees
shall apply mutatis mutandis to the employees of NWDA
subject to modification by the Governing Body concerning
service conditions and only in case of any doubt, the matter
has to be referred to the Governing Body for a decision. Bye-
law 26(a) provides for the emoluments structure for all
employees that will be adopted by NWDA, with the approval of
the Ministry of Finance (Department of Expenditure). Bye-law
28 provides that till such time NWDA frames its rules
governing service conditions of the employees, rules and
orders applicable to the Central Government employees shall
apply mutatis mutandis, subject to such modifications as
made by NWDA from time to time.
xxx xxx xxx
15. In light of the facts and circumstances of this case and the
submissions made by the learned counsel on both sides, it can
be concluded that NWDA had framed its regulation: the CPF
Rules, 1982 and they were duly approved by the Governing
Body of NWDA. As NWDA is an autonomous body under the
Ministry of Water Resources, it has framed its own bye-laws
governing the employees. It has been time and again
reiterated that the court must adopt an attitude of total non-
interference or minimal interference in the matter of
39
interpretation of rules framed by autonomous institutions.
In Kerala SRTC v. K.O. Varghese [(2007) 8 SCC 231 : (2007)
2 SCC (L&S) 862] , this Court held : (SCC pp. 240-41, paras
18 & 21)
“18. … KSRTC is an autonomous corporation established
under the Road Transport Corporations Act, 1950. It can
regulate the services of its employees by making
appropriate regulations in that behalf.
* * *
21. The High Court … is not correct in thinking that there is
any compulsion on KSRTC on the mere adoption of Part III of
KSR to automatically give all enhancements in pension and
other benefits given by the State Government to its
employees.”
Thus, as the appellants are governed by the CPF Rules, 1982, the
OM applicable to the Central Government employees is not
applicable to them.”
16. On the issue of parity between the employees of NWDA and
Central Government employees, even if it is assumed that the 1982
Rules did not exist or were not applicable on the date of the OM i.e.
1-5-1987, the relevant date of parity, the principle of parity cannot
be applicable to the employees of NWDA. NWDA cannot be
treated as an instrumentality of the State under Article 12 of the
Constitution merely on the basis that its funds are granted by the
Central Government. In Zee Telefilms Ltd. v. Union of
India [(2005) 4 SCC 649], it was held by this Court that the
autonomous bodies having some nexus with the Government by
itself would not bring them within the sweep of the expression
“State” and each case must be determined on its own merits. Thus,
the plea of the employees of NWDA to be treated on a par with their
counterparts in the Central Government under sub-rule (6)(iv) of
Rule 209 of the General Financial Rules, merely on the basis of
funding is not applicable.
17. Even if it is presumed that NWDA is “State” under Article 12 of
the Constitution, the appellants have failed to prove that they are
on a par with their counterparts, with whom they claim parity. As
held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996)
11 SCC 348 : 1997 SCC (L&S) 391], the claim to equality can be
40
claimed when there is discrimination by the State between two
persons who are similarly situated. The said discrimination
cannot be invoked in cases where discrimination sought to be
shown is between acts of two different authorities functioning as
State under Article 12. Thus, the employees of NWDA cannot be
said to be “Central Government employees” as stated in the OM
for its applicability.”
(Emphasis supplied)
41.The decision in the case of T.M. Sampath (supra) was later referred to
and relied upon by this Court in the case of Bhagwan (supra). This Court
in the Bhagwan (supra) observed in para 26 as under:
“26. As per the law laid down by this Court in a catena of
decisions, the employees of the autonomous bodies cannot
claim, as a matter of right, the same service benefits on a par
with the government employees. Merely because such
autonomous bodies might have adopted the Government
Service Rules and/or in the Governing Council there may be a
representative of the Government and/or merely because such
institution is funded by the State/Central Government,
employees of such autonomous bodies cannot, as a matter of
right, claim parity with the State/Central Government
employees. This is more particularly, when the employees of
such autonomous bodies are governed by their own Service
Rules and service conditions. The State Government and the
autonomous Board/body cannot be put on a par.”
(Emphasis Supplied)
42.We must also look into the decision of this Court in the case of Kerala
Assistant Public Prosecutors Associations v. State of Kerala and
Others reported in AIR 2018 SC 2652, wherein the Assistant Public
Prosecutors were seeking parity with respect to the age of
superannuation to that of Public Prosecutors. This Court took notice of
the fact that the method of selection between the two posts is very
different and that the former are considered to be government
41
employees, whereas the latter are not. The Court thereafter, proceeded to
hold that merely because the nature of work between the two is similar,
the same does not imply that the age of superannuation ought to be
similar as well. The relevant portion is produced hereunder:
“6. … The fact that the nature of duties and functions of
Assistant Public Prosecutors and Public Prosecutors are
similar, per se, cannot be the basis to claim parity with Public
Prosecutors in respect of age of superannuation.”
(Emphasis supplied)
43. In Union of India and Others v. Lieut (Mrs) E. Iacats, reported in
(1997) 7 SCC 334, the respondent therein had filed a writ petition in the
Guahati High Court challenging her retirement at the age of 55 years on
the ground that in other nursing services under the military establishment
the age of retirement was 58 years. It was argued before the High Court
that it was discriminatory to retire the nurses who were appointed for
local service only at the age of 55 years. The Petition was allowed by the
High Court. The UOI came before this Court in appeal. This Court while
allowing the appeal filed by the UOI, observed as under:
“ 3. … If different nursing services are constituted under
separate army instructions carrying their own separate terms
and conditions of service, one cannot complain of
discrimination if the ages of retirement prescribed under these
different services are different. Each will be governed by its
own rules and regulations. The respondent is, therefore, not
justified in claiming that she has been discriminated against
because she has retired at the age of 55.”
(Emphasis supplied)
44. The age of superannuation is always governed by the statutory rules
governing appointment on a particular post. Hence, even if it is averred
42
that the nature of work involved in the two posts is similar, the same
cannot be a ground to increase or alter the service conditions of an
employee as each post is governed by its own set of rules. The same was
held in the case of New Okhla Industrial Development Authority and
Another v. B D Singhal and Others, reported in AIR 2021 SC 3457,
wherein this Court held as under:
“24. … Since the enhancement of the age of superannuation is
a 'public function' channelised by the provisions of the statute
and the service regulations, the doctrine of promissory
estoppel cannot be used to challenge the action of NOIDA.”
(Emphasis supplied)
45.We shall now look into the decision of this Court in Dr. Ram Naresh
Sharma (supra). This decision of this Court has been relied upon by Mr.
R. Bala, the learned Senior Counsel appearing for the respondent No. 1.
He has relied upon paras 23 and 24 respectively which read thus:
“23. The common contention of the appellants before us is
that classification of AYUSH doctors and doctors under CHS
in different categories is reasonable and permissible in law.
This however does not appeal to us and we are inclined to
agree with the findings of the Tribunal and the Delhi High
Court that the classification is discriminatory and
unreasonable since doctors under both segments are
performing the same function of treating and healing their
patients. The only difference is that AYUSH doctors are using
indigenous systems of medicine like Ayurveda, Unani, etc. and
CHS doctors are using Allopathy for tending to their patients.
In our understanding, the mode of treatment by itself under the
prevalent scheme of things, does not qualify as an intelligible
differentia. Therefore, such unreasonable classification and
discrimination based on it would surely be inconsistent with
Article 14 of the Constitution. The order of AYUSH Ministry
dated 24.11.2017 extending the age of superannuation to 65
Years also endorses such a view. This extension is in tune with
the notification of Ministry of Health and Family Welfare
dated 31.05.2016.
43
24. The doctors, both under AYUSH and CHS, render
service to patients and on this core aspect, there is nothing to
distinguish them. Therefore, no rational justification is seen
for having different dates for bestowing the benefit of extended
age of superannuation to these two categories of doctors.
Hence, the order of AYUSH Ministry (F. No. D.
14019/4/2016EI (AYUSH)) dated 24.11.2017 must be
retrospectively applied from 31.05.2016 to all concerned
respondent doctors, in the present appeals. All consequences
must follow from this conclusion.”
46.The aforesaid decision of this Court in the case of Dr. Ram Naresh
Sharma (supra) upon which strong reliance has been placed on behalf of
the respondent No. 1 is of no avail for the simple reason that in the said
case, the only question that arose was whether the benefit of
enhancement of age of retirement from 60 years to 65 years granted in
favour of allopathy doctors was available even for ayurveda doctors or
not? The said decision was based upon an order of the Ministry of
AYUSH dated 24.11.2017.
47.As seen from paragraph 23 of the said decision referred to above, the age
of retirement of allopathy doctors was enhanced by an order dated
31.05.2016 issued by the Ministry of Health and Family Welfare. This
was followed by consequential amendment of the Fundamental Rules
and Supplementary Rules, 1922. Since, Ayurveda doctors were not
covered by the Ministry’s order dated 31.05.2016, the Ayurveda doctors
filed applications before the Administrative Tribunal. The Administrative
Tribunal allowed the applications by an order dated 24.08.2017. The
North Delhi Municipal Corporation (Employer) filed writ petitions
before the High Court of Delhi challenging the decision of the Tribunal.
During the pendency of the writ petitions, the Ministry of AYUSH issued
an order dated 24.11.2017 enhancing the age of retirement of AYUSH
44
doctors also to 65 years, but w.e.f. 27.09.2017. It is in that context that
this Court held as aforesaid in Dr. Ram Naresh Sharma (supra). Thus,
this decision is in no manner helpful to the respondent No. 1.
48.We may only say that the entire approach of the High Court towards the
present litigation was incorrect. We are a bit disappointed to observe that
the High Court dealt with the present litigation in a very casual manner.
First, the High Court went to the extent of granting interim relief
extending the period of service beyond 60 years till the disposal of the
Original Petition by the CAT. By virtue of such interim order which the
High Court ordinarily should not grant, the respondent No. 1 although
was to retire in 2018 yet continued in service till 2021. It is only when
this Court stayed the operation of the impugned order passed by the High
Court while issuing notice that the service of the respondent No. 1 came
to an end. The Court or the Tribunal should, therefore, be slow and
circumspect in granting interim relief for continuation in service, unless
prima facie evidence of unimpeachable character is produced because if
the public servant succeeds, he can always be compensated. But if he
fails, he would have enjoyed undeserved benefit of extended service and
merely caused injustice to his immediate junior. At the cost of repetition,
we may state that the High Court was conscious of the fact as very much
recorded in the impugned order that the respondent No. 1 was appointed
as a Research Assistant and was functioning as a Researcher under the
Research Council and his service conditions were also different
compared to the AYUSH doctors serving with the Ministry of AYUSH.
The High Court misdirected itself saying that the benefit of enhanced age
of superannuation can also be granted if the duties performed are the
same like AYUSH doctors. We fail to understand how can the Court fix
the age of superannuation of an employee saying that he is very much
45
devoted towards his job. The age of superannuation is always governed
by statutory rules & other service conditions.
49.Before we close this matter, we would like to observe something
important in the aforesaid context:
Two cardinal principles of law governing exercise of extraordinary
jurisdiction under Article 226 of the Constitution more particularly
when it comes to issue of writ of certiorari.
50.The first cardinal principle of law that governs the exercise of
extraordinary jurisdiction under Article 226 of the Constitution, more
particularly when it comes to the issue of a writ of certiorari is that in
granting such a writ, the High Court does not exercise the powers of
Appellate Tribunal. It does not review or reweigh the evidence upon
which the determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without jurisdiction or
palpably erroneous but does not substitute its own views for those of the
inferior tribunal. The writ of certiorari can be issued if an error of law is
apparent on the face of the record. A writ of certiorari, being a high
prerogative writ, should not be issued on mere asking.
51.The second cardinal principle of exercise of extraordinary jurisdiction
under Article 226 of the Constitution is that in a given case, even if some
action or order challenged in the writ petition is found to be illegal and
invalid, the High Court while exercising its extraordinary jurisdiction
thereunder can refuse to upset it with a view to doing substantial justice
between the parties. Article 226 of the Constitution grants an
extraordinary remedy, which is essentially discretionary, although
46
founded on legal injury. It is perfectly open for the writ court, exercising
this flexible power to pass such orders as public interest dictates &
equity projects. The legal formulations cannot be enforced divorced from
the realities of the fact situation of the case. While administering law, it
is to be tempered with equity and if the equitable situation demands after
setting right the legal formulations, not to take it to the logical end, the
High Court would be failing in its duty if it does not notice equitable
consideration and mould the final order in exercise of its extraordinary
jurisdiction. Any other approach would render the High Court a normal
court of appeal which it is not.
52.The essential features of a writ of certiorari, including a brief history,
have been very exhaustively explained by B.K. Mukherjea, J. in T.C.
Basappa v. T. Nagappa and Another, reported in AIR 1954 SC 440. The
Court held that a writ in the nature of certiorari could be issued in ‘all
appropriate cases and in appropriate manner’ so long as the broad and
fundamental principles were kept in mind. Those principles were
delineated as follows:
“7. … In granting a writ of ‘certiorari’, the superior court
does not exercise the powers of an appellate tribunal. It does
not review or reweigh the evidence upon which the
determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without
jurisdiction or palpably erroneous, but does not substitute its
own views for those of the inferior tribunal …..
8. The supervision of the superior court exercised through
writs of certiorari goes on two points, as has been expressed
by Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2
AC 128, 156]. One is the area of inferior jurisdiction and the
qualifications and conditions of its exercise; the other is the
observance of law in the course of its exercise. ….
47
9. Certiorari may lie and is generally granted when a court
has acted without or in excess of its jurisdiction.”
53.Relying on T.C. Basappa (supra), the Constitution Bench of this Court in
the case of Hari Vishnu Kamath (supra), laid down the following
propositions as well established:
“(1) Certiorari will be issued for correcting errors of
jurisdiction, as when an inferior court or tribunal acts without
jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal
acts illegally in the exercise of its undoubted jurisdiction, as
when it decides without giving an opportunity to the parties to
be heard, or violates the principles of natural justice.
(3) The court issuing a writ of certiorari acts in exercise of a
supervisory and not appellate jurisdiction. One consequence
of this is that the court will not review findings of fact reached
by the inferior court or tribunal, even if they be erroneous.”
54.This Court explained that a court which has jurisdiction over a subject
matter has jurisdiction to decide wrong as well as right, and when the
Legislature does not choose to confer a right of appeal against that
decision, it would be defeating its purpose and policy if a superior court
were to rehear the case on the evidence and substitute its own finding in
certiorari.
55.In Syed Yakoob v. K.S. Radhakrishnan and Others, reported in AIR
1964 SC 477, P.B. Gajendragadkar, CJ., speaking for the Constitution
Bench, placed the matter beyond any position of doubt by holding that a
writ of certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals. The observations of this Court
in para 7 are worth taking note of:
48
“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Art. 226 has been
frequently considered by this Court and the true legal position
in that behalf is no longer in doubt. A writ of certiorari can be
issued for correcting errors of jurisdiction committed by
inferior courts or tribunals: these are cases where orders are
passed by inferior courts or tribunals without jurisdiction, or
is in excess of it, or as a result of failure to exercise
jurisdiction. A writ can similarly be issued where in exercise of
jurisdiction conferred on it, the Court or Tribunal acts
illegally or improperly, as for instance, it decides a question
without giving an opportunity to be heard to the party affected
by the order, or where the procedure adopted in dealing with
the dispute is opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by
the inferior Court or Tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the face of
the record can be corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be
issued if it is shown that in recording the said finding, the
Tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence, that
would be regarded as an error of law which can be corrected
by a writ of certiorari. In dealing with this category of cases,
however, we must always bear in mind that a finding of fact
recorded by the Tribunal cannot be challenged in proceedings
for a writ of certiorari on the ground that the relevant and
material evidence adduced before the Tribunal was insufficient
or inadequate to sustain the impugned finding. The adequacy
or sufficiency of evidence led on a point and the inference of
fact to be drawn from the said finding are within the exclusive
jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ Court. It is within these limits that the
jurisdiction conferred on the High Courts under Art. 226 to
issue a writ of certiorari can be legitimately exercised…..”
49
56.In Surya Dev Rai v. Ram Chandra Rai and Others, reported in 2003 (6)
SCC 675, a Bench of two Judges held that the certiorari jurisdiction
though available, should not be exercised as a matter of course. The
High Court would be justified in refusing the writ of certiorari if no
failure of justice had been occasioned. In exercising the certiorari
jurisdiction, the procedure ordinarily followed by the High Court is to
command the inferior court or tribunal to certify its record or
proceedings to the High Court for its inspection so as to enable the High
Court to determine, whether on the face of the record the inferior court
has committed any of the errors as explained by this Court in Hari
Vishnu Kamath v. Ahmad Ishaque and Others, AIR 1955 SC 233
occasioning failure of justice.
57.From the aforesaid, it could be said in terms of a jurisdictional error that
want of jurisdiction may arise from the nature of the subject matter so
that the inferior court or tribunal might not have the authority to enter on
the inquiry. It may also arise from the absence of some essential
preliminary or jurisdictional fact. Where the jurisdiction of a body
depends upon a preliminary finding of fact in a proceeding for a writ of
certiorari, the court may determine, whether or not that finding of fact is
correct. The reason is that by wrongly deciding such a fact, the court or
tribunal cannot give itself jurisdiction.
58.In Anisminic Ltd. v. Foreign Compensation Commission and Another,
reported in (1969) 2 AC 147, the House of Lords has given a very broad
connotation to the concept of ‘jurisdictional error’. It has been laid down
that a tribunal exceeds jurisdiction not only at the threshold when it
enters into an inquiry which it is not entitled to undertake, but it may
50
enter into an enquiry within its jurisdiction in the first instance and then
do something which would deprive it of its jurisdiction and render its
decision a nullity. In the words of Lord Reid:
“But there are many cases where, although the tribunal had
jurisdiction to enter on the enquiry, it has done or failed to do
something in the course of the enquiry which is of such a
nature that its decision is a nullity. It may have given its
decision in bad faith. It may have made a decision which it
had no power to make. It may have failed in the course of the
enquiry to comply with the requirements of natural justice. It
may in perfect good faith have misconstrued the provisions
giving it power to act so that it failed to deal with the question
remitted to it and decided some question which was not
remitted to it. It may have refused to take into account
something which it was required to take into account. Or it
may have based its decision on some matter which, under the
provisions setting it up, it had no right to take into account. I
do not intend this list to be exhaustive.”
59.So far as the errors of law are concerned, a writ of certiorari could be
issued if an error of law is apparent on the face of the record. To attract
the writ of certiorari, a mere error of law is not sufficient. It must be one
which is manifest or patent on the face of the record. Mere formal or
technical errors, even of law, are not sufficient, so as to attract a writ of
certiorari. As reminded by this Court time and again, this concept is
indefinite and cannot be defined precisely or exhaustively and so it has
to be determined judiciously on the facts of each case. The concept,
according to this Court in K.M. Shanmugam v. The S.R.V.S. (P) Ltd.
and Others, reported in AIR 1963 SC 1626, ‘is comprised of many
imponderables… it is not capable of precise definition, as no objective
criterion could be laid down, the apparent nature of the error, to a large
extent, being dependent upon the subjective element.’ A general test to
apply, however, is that no error could be said to be apparent on the face
51
of the record if it is not ‘self-evident’ or ‘manifest’. If it requires an
examination or argument to establish it, if it has to be established by a
long drawn out process of reasoning, or lengthy or complicated
arguments, on points where there may considerably be two opinions,
then such an error would cease to be an error of law.
(See : Satyanarayan Laxminarayan Hegde and Others v. Mallikarjun
Bhavanappa Tirumale, reported in AIR 1960 SC 137.)
60.However, in our opinion, such a test should not be applied in a
straitjacket formula and may fail because what might be considered by
one Judge as an error self-evident, might not be considered so by another
Judge.
61.At this stage, it may not be out of place to remind ourselves of the
observations of this Court in Syed Yakoob (supra) on this point, which
are as follows:
“Where it is manifest or clear that the conclusion of law
recorded by an inferior court or tribunal is based on an
obvious misinterpretation of the relevant statutory provision,
or something in ignorance of it, or may be even in disregard of
it, or is expressly founded on reasons which are wrong in law,
the said conclusion can be corrected by a writ of
certiorari. Certiorari would also not lie to correct mere errors
of fact even though such errors may be apparent on the face of
the record. The writ jurisdiction is supervisory and the court
exercising it is not to act as an appellate court. It is well
settled that the writ court would not re-appreciate the evidence
and substitute its own conclusion of fact for that recorded by
the adjudicating body, be it a court or a tribunal. A finding of
fact, howsoever erroneous, recorded by a court or a tribunal
cannot be challenged in proceedings for certiorari on the
ground that the relevant and material evidence adduced before
52
the court or the tribunal was insufficient or inadequate to
sustain the impugned finding.
It is also well settled that adequacy or sufficiency of evidence
led on a point and the inference of fact to be drawn from the
said finding are within the exclusive jurisdiction of the
tribunal and these points cannot be agitated before the writ
court.”
62.In the aforesaid context, it will be profitable for us to refer to the
decision of this Court in the case of Indian Overseas Bank v. I.O.B.
Staff Canteen Workers' Union and Another, reported in AIR 2000 SC
1508. This Court observed as under:
“… The findings of fact recorded by a fact-finding authority
duly constituted for the purpose and which ordinarily should
be considered to have become final, cannot be disturbed for
the mere reason of having been based on materials or
evidence not sufficient or credible in the opinion of the writ
Court to warrant those findings at any rate, as long as they
are based upon such materials which are relevant for the
purpose or even on the ground that there is yet another view
which can be reasonably and possibly undertaken. …”
63.However, we may clarify that findings of fact based on ‘no evidence’ or
purely on surmises and conjectures or which are perverse points could be
challenged by way of a certiorari as such findings could be regarded as
an error of law.
64.Thus, from the various decisions referred to above, we have no hesitation
in reaching to the conclusion that a writ of certiorari is a high prerogative
writ and should not be issued on mere asking. For the issue of a writ of
certiorari, the party concerned has to make out a definite case for the
same and is not a matter of course. To put it pithily, certiorari shall issue
53
to correct errors of jurisdiction, that is to say, absence, excess or failure
to exercise and also when in the exercise of undoubted jurisdiction, there
has been illegality. It shall also issue to correct an error in the decision or
determination itself, if it is an error manifest on the face of the
proceedings. By its exercise, only a patent error can be corrected but not
also a wrong decision. It should be well remembered at the cost of
repetition that certiorari is not appellate but only supervisory.
65.A writ of certiorari, being a high prerogative writ, is issued by a superior
court in respect of the exercise of judicial or quasi-judicial functions by
another authority when the contention is that the exercising authority had
no jurisdiction or exceeded the jurisdiction. It cannot be denied that the
tribunals or the authorities concerned in this batch of appeals had the
jurisdiction to deal with the matter. However, the argument would be that
the tribunals had acted arbitrarily and illegally and that they had failed to
give proper findings on the facts and circumstances of the case. We may
only say that while adjudicating a writ-application for a writ of certiorari,
the court is not sitting as a court of appeal against the order of the
tribunals to test the legality thereof with a view to reach a different
conclusion. If there is any evidence, the court will not examine whether
the right conclusion is drawn from it or not. It is a well-established
principle of law that a writ of certiorari will not lie where the order or
decision of a tribunal or authority is wrong in matter of facts or on
merits. (See: King v. Nat Bell Liquors Ltd., (1922) 2 AC 128 (PC))
66.We may quote with profit a decision of this Court in the case
of Satyanarayan Laxminarayan Hegde (supra) to understand the true
purport and meaning of an error apparent on the face of the record or an
error which could be termed as self-evident. The facts of that case were
as below:
54
67.The respondent made an application in the Revenue Court of the
Mamlatdar of Sirsi praying for the delivery of possession of property
which the appellant was on that date possessing as the tenant under him
on the basis of a ‘Mulegeni’ deed executed by the respondent's
predecessor-in-interest in favour of the appellant's predecessor-in-
interest. The case was governed by the Bombay Tenancy and
Agricultural Lands Act, 1948, and one of the questions in controversy
was whether before applying for the delivery of possession, it was
incumbent upon the respondent to have given a notice terminating the
tenancy. The Mamlatdar made an order for possession in favour of the
respondent. The Collector allowed the appeal and set aside the order of
the Mamlatdar. The Bombay Revenue Tribunal, to whom the matter was
taken up on appeal, held that as the respondent had failed to terminate
the tenancy by notice before instituting the action for ejectment, he was
not entitled to entertain the application for recovery of possession.
68.Thereafter, the respondent made an application to the High Court of
Bombay under Article 227 of the Constitution of India for the quashing
of the order of the Revenue Tribunal and the Collector and for the
restoration of the order of the Mamlatdar. The High Court was of the
opinion that the Tribunal had committed an error which was apparent on
the face of the record in holding that an order of possession could not be
made unless a notice terminating the tenancy had been given before the
institution of the proceeding and it issued a writ of certiorari quashing
the order of the Tribunal and restoring that of the Mamlatdar.
69.An appeal was filed against the order of the High Court and this Court
reversed that order on the ground that the alleged error in the judgment
of the Bombay Revenue Tribunal, namely that an order for possession
55
should not be made unless a previous notice required by Section 14 of
the Bombay Tenancy and Agricultural Lands Act, 1948, had been given,
was not an error apparent on the face of the record so as to be capable of
being corrected by a writ of certiorari and the following observations
were made by this Court:
“17.…. An error which has to be established by a long drawn
process of reasoning on points where there may conceivably
be two opinions can hardly be said to be an error apparent on
the face of the record. As the above discussion of the rival
contentions show the alleged error in the present case is far
from self-evident and if it can be established, it has to be
established by lengthy and complicated arguments. We do not
think such an error can be cured by a writ of certiorari
according to the rule governing the powers of the superior
court to issue such a writ. .…”
70.We may also quote with profit one more decision of this Court
explaining the true scope of issue of a writ of certiorari and what is an
error apparent on the face of the record, which could be corrected by
issue of a high prerogative writ like certiorari. In the case of Ebrahim
Aboobakar and Hawabai Aboobakar v. The Custodian General of
Evacuee Property, New Delhi, reported in (1952) 1 SCC 798, this
Court made the observations in paras 12, 13, 14 and 15, which we
quote below:
“12. The remaining three questions canvassed before us,
unless they are of such a nature as would make the decision of
the respondent dated 13-5-1950, a nullity, cannot be the
subject-matter of a writ of certiorari. It is plain that such a
writ cannot be granted to quash the decision of an inferior
court within its jurisdiction on the ground that the decision is
wrong. Indeed, it must be shown before such a writ is issued
that the authority which passed the order acted without
jurisdiction or in excess of it or in violation of the principles of
56
natural justice. Want of jurisdiction may arise from the nature
of the subject-matter, so that the inferior court might not have
authority to enter on the inquiry or upon some part of it. It
may also arise from the absence of some essential preliminary
or upon the existence of some particular facts collateral to the
actual matter which the court has to try and which are
conditions precedent to the assumption of jurisdiction by it.
But once it is held that the court has jurisdiction but while
exercising it, it made a mistake, the wronged party can only
take the course prescribed by law for setting matters right
inasmuch as a court has jurisdiction to decide rightly as well
as wrongly. The three questions agitated before us do not seem
to be questions which bear upon the jurisdiction of the court of
appeal, or its authority to entertain them.
13. It was contended that no court of limited jurisdiction can
give itself jurisdiction by a wrong decision on a point
collateral to the merits of the case upon which the limit of its
jurisdiction depends and that the questions involved in the
appeal before the respondent were collateral to the merits of
the case. As pointed out by Lord Esher, M.R.,
in R. v. CIT [R. v. CIT, (1888) LR 21 QBD 313 (CA)] , the
formula enunciated above is quite plain but its application is
often misleading. The learned Master of the Rolls classified
the cases under two categories thus : (QBD pp. 319-20)
“… When an inferior court or tribunal or body, which has
to exercise the power of deciding facts, is first established
by Act of Parliament, the legislature has to consider what
powers it will give that tribunal or body. It may in effect say
that, if a certain state of facts exists and is shown to such
tribunal or body before it proceeds to do certain things, it
shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclusively to decide whether that
state of facts exists, and, if they exercise the jurisdiction
without its existence, what they do may be questioned, and
it will be held that they have acted without jurisdiction. But
there is another state of things which may exist. The
legislature may entrust the tribunal or body with a
jurisdiction which includes the jurisdiction to determine
whether the preliminary state of facts exists as well as the
jurisdiction, [and] on finding that it does exist, to proceed
further or do something more. When the legislature are
57
establishing such a tribunal or body with limited
jurisdiction, they also have to consider, whatever
jurisdiction they give them, whether there shall be any
appeal from their decision, for otherwise there will be
none. In the second of the two cases, I have mentioned it is
erroneous application of the formula to say that the tribunal
cannot give themselves jurisdiction by wrongly deciding
certain facts to exist, because the legislature gave them
jurisdiction to determine all the facts including the
existence of the preliminary facts on which the further
exercise of their jurisdiction depends; and if they were given
jurisdiction so to decide, without any appeal being given,
there is no appeal from such exercise of their jurisdiction.”
14. The tribunal constituted to hear appeals under Section 24
has been constituted in these terms:
“Any person aggrieved by an order made under Section 7,
Section 16, Section 19 or Section 38 may prefer an appeal
in such manner and within such time as may be prescribed
—
(a) to the Custodian, where the original order has been
passed by a Deputy or Assistant Custodian;
(b) to the Custodian General, where the original order has
been passed by the Custodian, an Additional Custodian or
an authorised Deputy Custodian.”
15. Like all courts of appeal exercising general jurisdiction in
civil cases, the respondent has been constituted an appellate
court in words of the widest amplitude and the legislature has
not limited his jurisdiction by providing that such exercise will
depend on the existence of any particular state of facts.
Ordinarily, a court of appeal has not only jurisdiction to
determine the soundness of the decision of the inferior court
as a court of error, but by the very nature of things it has also
jurisdiction to determine any points raised before it in the
nature of preliminary issues by the parties. Such jurisdiction is
inherent in its very constitution as a court of appeal. Whether
an appeal is competent, whether a party has locus standi to
prefer it, whether the appeal in substance is from one or
another order and whether it has been preferred in proper
form and within the time prescribed, are all matters for the
decision of the appellate court so constituted. Such a tribunal
58
falls within Class 2 of the classification of the Master of the
Rolls [R. v. CIT, (1888) LR 21 QBD 313 (CA)] . In these
circumstances, it seems to us that the order of the High Court
of Punjab that a writ of certiorari could not be issued to the
respondent quashing the order of 13-5-1950, was right. We are
further of the opinion that none of the contentions raised has
any merit whatsoever.”
71.This Court in Parry and Company Limited v. Commercial Employees’
Association, Madras and Another (1952) 1 SCC 449 : AIR 1952 SC
179, held:
“14. The records of the case do not disclose any error
apparent on the face of the proceeding or any irregularity in
the procedure adopted by the Labour Commissioner which
goes contrary to the principles of natural justice. Thus there
was absolutely no grounds here which would justify a superior
court in issuing a writ of certiorari for removal of an order or
proceeding of an inferior tribunal vested with powers to
exercise judicial or quasi-judicial functions. What the High
Court has done really is to exercise the powers of an appellate
court and correct what it considered to be an error in the
decision of the Labour Commissioner. This obviously it cannot
do. The position might have been different if the Labour
Commissioner had omitted to decide a matter which he was
bound to decide and in such cases a mandamus might
legitimately issue commanding the authority to determine
questions which it left undecided [Board of Education v. Rice,
1911 AC 179 (HL)] ; but no certiorari is available to quash a
decision passed with jurisdiction by an inferior tribunal on the
mere ground that such decision is erroneous. The judgment of
the High Court, therefore, in our opinion, is plainly
unsustainable.
(Emphasis supplied)
72.In another case, the same Court held:
““A certiorari cannot be granted to quash the decision of the
appellate tribunal on these points on the ground that the
59
decision is wrong” - ‘Ebrahim Aboobakar v. The Custodian
General of Evacuee Property’, 1952 Mad W.N. 502 (SC).”
73.It is, therefore, clear that in all findings on matters of fact and
interpretation of law except in cases of defective jurisdiction, the
decision of the tribunal must be deemed to be final.
74.The position is authoritatively summed up in Halsbury's Laws of
England Vol.IX in para 1493 where it is laid down thus:
“1493. Where the proceedings are regular upon their face and
the magistrates had jurisdiction, the superior court will not
grant the writ of certiorari on the ground that the Court below
has misconceived a point of law. When the Court below has
jurisdiction to decide a matter, it cannot be deemed to exceed
or abuse its jurisdiction, merely because it incidentally
misconstrues a statute, or admits illegal evidence, or rejects
legal evidence, or misdirects itself as to the weight of the
evidence, or convicts without evidence. Nor will certiorari be
granted to quash the decision of an inferior court within its
jurisdiction on the ground that the decision is wrong in
matters of fact, and the Court will not hear evidence
impeaching the decision on the facts. ….”
75.Similarly in the case reported in - ‘Colonial Bank of
Australasia v. Willan’, (1874) LR 5 PC 417, it is observed by their
Lordships thus: “The question is whether the inferior court has
jurisdiction to enter upon the enquiry and not whether there has been
miscarriage of the procedure in the course of enquiry.” At page 443 of
the same case, the learned Judges observed - “An adjudication by a
Judge having jurisdiction over the subject-matter is, if no defect
appears on the face of it, to be taken as conclusive of facts stated
therein. “The case in (1874) LR 5 PC 417 has been approvingly cited
by Fazl Ali, J. who held - ‘Rai Brij Raj Krishna and Another v.
60
Messrs S.K. Shaw and Brothers’, AIR 1951 SC 115 that an error of
law does not constitute an error of jurisdiction and that a wrong
decision on facts or law cannot be questioned in a civil Court.
76.It being open to the tribunals to come to one or the other conclusion on
the materials before them, it cannot by any means be said that the
decisions are incorrect so as to attract the extraordinary jurisdiction for
interference by a writ of certiorari. In a King's Bench decision
in R. v. Brighton and Area Rent Tribunal, (1950) 1 All England
Reporter 946, Lord Goddard, CJ. observed that:
“… As the tribunal had observed all the formalities of the Act,
had offended against none of its provisions or against the
regulations made under it, there was no ground for holding
that the tribunal's determination was not in accordance with
law, and, therefore, the motions for certiorari and mandamus
should be refused”.
77.The purpose of certiorari, as we understand, is only to confine the
inferior tribunals within their jurisdiction, so as to avoid the irregular
exercise, or the non-exercise or the illegal assumption of it and not to
correct errors of finding of fact or interpretation of law committed by
them in the exercise of powers vested in them under the statute. The
accepted rule is that where a Court has jurisdiction it has a right to
decide every question which crops up in the case and whether its
decision is correct or otherwise, it is bound to stand until reversed by a
competent Court. This Court in G. Veerappa Pillai v. Messrs Raman
and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1
SCC 334 observed:
“26. Such writs as are referred to in Article 226 are obviously
intended to enable the High Court to issue them in grave cases
61
where the subordinate tribunals or bodies or officers act
wholly without jurisdiction, or in excess of it, or in violation of
the principles of natural justice, or refuse to exercise a
jurisdiction vested in them, or there is an error apparent on
the face of the record, and such act, omission, error, or excess
has resulted in manifest injustice. However extensive the
jurisdiction may be, it seems to us that it is not so wide or
large as to enable the High Court to convert itself into a court
of appeal and examine for itself the correctness of the decision
impugned and decide what is the proper view to be taken or
the order to be made.”
78.In view of the aforesaid discussion, we have reached to the conclusion
that the impugned order passed by the High Court is not sustainable in
law and the same deserves to be set aside.
79.In the result, the present appeal is allowed. The impugned order passed
by the High Court dated 17.12.2020 in the Writ Petition (C) No. 30620
of 2020 is set aside.
80.No order as to costs.
81.The interim application filed by the intervenors also stands disposed.
……………………………….. CJI.
(Dr. Dhananjaya Y. Chandrachud)
……………………………….. J.
(J.B. Pardiwala)
New Delhi;
August 16, 2023.
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