Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.2951-2957 OF 2001

UNION OF INDIA AND OTHERS …

APPELLANT(S)

VERSUS

MAJOR S.P. SHARMA AND OTHERS … RESPONDENT(S)

JUDGMENT

M.Y. EQBAL, J.:

1. These appeals have been filed against the common

judgment and order dated 21.12.2000 passed by Delhi

High Court in L.P.A. Nos. 4, 43, 139, 148 of 1987, 21 of

1988, 77 of 1993 and 86 of 1994. By the said

judgment, the High Court allowed the appeals preferred

by the respondents and quashed not only their

termination orders but also the General Court Martial

(hereinafter referred to as ‘GCM’) proceedings held

Page 2 against Captain Ashok Kumar Rana and Captain R.S.

Rathaur.

2. Before we proceed with the matter, it would be

appropriate to highlight the factual background and

brief history of the case.

In February 1971, Gunner Sarwan Dass was

cultivated by Pakistan Intelligence. In 1972 Captain

Ghalwat and Gunner Sarwan Dass crossed the

international border. In 1973 Captain Ghalwat and

Gunner Sarwan Dass were posted in Babina (M.P.). In

1974 Gunner Aya Singh was cultivated by Gunner

Sarwan Dass for Pak Intelligence. Captain Nagial was

then cultivated by Aya Singh for Pak Intelligence. In

1975 for the first time the espionage racket came to be

noticed. Aya Singh and Sarwan Dass were arrested. In

1976-77 pursuant to the investigation, three more

jawans were arrested. They corroborated the

involvement of Sarwan Dass. Sarwan Dass and Aya

Singh on further interrogation disclosed the names of

Captain Ghalwat and Captain Nagial. In 1976-77

2

Page 3 Captain Ghalwat and Captain Nagial were tried by GCM

and were convicted. Ghalwat was cashiered and given

14 years’ RI. Nagial was given 7 years’ RI and was also

cashiered. In addition, 12 jawans were tried and they

were given RI of various descriptions and were

dismissed from services. Aya Singh and Sarwan Dass

were also among the 12 jawans tried and held guilty.

Later in 1978 it was discovered that Aya Singh was

holding back certain relevant information relating to

espionage activities under certain alleged threat and

pressure. Wife of Aya Singh claimed to be killed.

Reeling under the shock of the circumstances, he made

further disclosures wherein he named Captain Rathaur

and Captain A.K. Rana; disclosed that he had been

receiving threats that if he disclosed anything his wife

would be killed. Accordingly, in 1978 Captain Rathaur

and Captain A.K. Rana were interrogated. As a result,

42 army personnel i.e. 19 officers, 4 junior

commissioned officers (JCOs) and 19 other ranks (ORs),

were arrested.

3

Page 4 Out of the 19 officers, 3 officers were tried by GCM,

two were convicted, namely, Captain Ranbir Singh

Rathaur and Captain A.K. Rana, and one was acquitted.

Captain Ranbir Singh Rathaur and Captain A.K. Rana

were sentenced to RI for 14 years each and were

cashiered. Against 13 officers, disciplinary actions were

initiated. However, a decision was taken not to try them

and an administrative order under Section 18 of the

Army Act, 1950 (in short “the Army Act”) was passed

terminating their services.

3. The present appeals arise out of the order passed way

back in 1980 terminating the services of the

respondents herein which were brought invoking the

doctrine of pleasure as enshrined under Article 310 of

the Constitution of India, 1950 (hereinafter referred to

as the ‘Constitution’) coupled with the powers to be

exercised under Section 18 of the Army Act. Initially,

the orders of dismissal were passed on 11.1.1980,

which were assailed in nine writ petitions that were

4

Page 5 dismissed by the High Court of Delhi on 21.4.1980. The

special leave petitions against these writ petitions came

to be dismissed by this Court on 1.9.1980.

4. In the meanwhile, a corrigendum came to be issued, as

a result whereof, the orders of dismissal were described

as orders of termination. On account of the substituted

termination order, a decision for deducting 5% of the

gratuity amount was taken, which was communicated

afresh. These orders made a fresh ground of challenge

before a learned Single Judge of the Delhi High Court.

The learned Single Judge dismissed the petition by a

detailed judgment dated 22.3.1985. Simultaneously,

one Captain R.S. Rathaur had filed a Writ Petition

No.1577 of 1985 under Article 32 of the Constitution

before this Court, which stood dismissed refusing to re-

open the issues already decided.

5. Against the order of the learned Single Judge dated

22.3.1985, several Letters Patent Appeals were filed.

5

Page 6 One of the appeals, being LPA No.116 of 1985, filed by

one N.D. Sharma, was decided vide judgment dated

19.8.1986 upholding the order of termination approving

the applicability of the doctrine of pleasure. However,

at the same time, the appeal was partly allowed in

relation to the post-retiral benefits keeping in view the

provisions under the Army Act and Rules and it was

found that the proposed 5% cut-off was not in

accordance with the Act/Rules applicable therein.

6. Several LPAs were filed by other officers relying on the

Division Bench judgment extending the post-retiral

benefits, and a plea for similar relief was raised.

7. When these appeals came up for hearing, the Division

Bench of the Delhi High Court hearing the matter

differed with the view on the issue of the applicability of

doctrine of pleasure and maintainability of the writ

petitions on the ground of malafides vide order dated

6

Page 7 15.5.1991. Consequently, this question of law was

referred to be decided by a larger bench.

8. The Full Bench so constituted to answer this reference

held that an order under Section 18 of the Army Act

invoking the doctrine of pleasure was subject to judicial

review if it is assailed on malafides. It was held that the

onus lay on the petitioner/person alleging malafides

and to bring material on record to satisfy the court in

order to justify the interference. Aggrieved, the Union

of India filed the Special Leave Petition, which stood

dismissed.

9. It appears that after the answer of reference, the

pending appeals were taken up for decision by the High

Court. On account of the answer given by the Full

Bench, fresh petitions were filed by those officers

whose petitions had been dismissed earlier upto this

Court as referred to hereinabove, in 1980. Some writ

petitioners, whose petitions had been dismissed by

7

Page 8 learned Single Judge, filed Letters Patent Appeals with

applications for condonation of delay. Appeals were

also filed against those judgments that were given in

the second round of litigation proposing to refuse 5% of

the terminal benefits referred to hereinabove. These

categories of petitions were described by the Division

Bench hearing the matter in its order dated 2.5.1995,

as under :-

“LPA 77/93 & CM 823/95

In these batch of cases, we find there are at least two

LPAs which are directed against the Judgments of

dismissal of the writ petitions holding that the

particular issue cannot be gone into in writ

jurisdiction. Learned counsel for the appellants in

those two cases rely upon the Full Bench Judgment

and the recent Supreme Court Judgment to contend

that the issue can be gone into by the Court. They

have also wanted us to call for certain records from

the respondents and in regard to those records,

respondents are claiming privilege and that is a matter

to be decided.

There is another group of cases in which fresh writ

petitions are filed on the ground that notwithstanding

the dismissal of the earlier writ petitions or dismissal

of the S.L.Ps, fresh writ petitions are maintainable

inasmuch as it is only now that the Full Bench and the

Supreme Court have decided that the particular issue

can be gone into by the High Court. In that batch of

cases the question of res judicata falls for

consideration.

8

Page 9 There is yet another group of cases where writ

petitions were dismissed by the learned Single Judges

on the ground that the Court cannot go into the issue

and the LPAs were preferred with application for

condonation of delay with delay of more than 9 years.

There is yet another group of cases where

writ petitions were filed against some latter

orders passed by the Government imposing

a cut of 5% from the pension and upon

dismissal of the writ petitions challenging

the said orders, LPAs have been filed and in

those appeals the appellants want to take

up the issue, that the Court can go into the

validity of the order of dismissal order once

again.

Inasmuch as there are four classes of

cases, we are of the view that first we

should decide the batch where fresh writ

petitions are filed, and in case we hold that

fresh writ petitions are maintainable, then

the question of going into the privilege

claimed by the respondents will have to be

decided. If the fresh writ petitions are held

to be maintainable, then the batch wherein

appeals are filed with delay condonation

applications can also be taken up for

consideration. In one case the question of

laches is to be decided whereas in another

the question of sufficient cause for

condonation of delay fall for consideration.

In the matters challenging the orders

imposing cut in pension, it will be for the

parties to watch the view the court may

take in other three batches mentioned

above so that they can pursue one or the

other remedies which the Court will be able

to accept.

9

Page 10 Therefore, we will first take up fresh writ

petitions filed after the passing of the full

Court Judgment and the Supreme Court

Judgment.”

10. Thereafter two writ petitions that were filed afresh,

namely, in the case of Major Subhash Juneja and

Harish Lal Singh, were heard separately and dealt

with the principle o f res judicata and constructive res judicata. The

said writ petitions were held to be barred by law vide judgment dated

8.3.1996. The other connected petitions also appeared to have been

dismissed as not maintainable by another Division Bench vide order dated

7.9.1992.

11. The Letters Patent Appeals which were filed with

applications for condonation of delay and also

against the judgment proposing 5% cut-off in the

terminal benefits were heard by another Division

Bench that reserved the judgment on 14.8.1998 by

passing the following order:

"LPA Nos.4/87, 43/87, 139/87, 148/87, 21/88, 77/93,

86/94 and C.W. Nos.3063/95, 4082/95:

10

Page 11 Synopses have been placed on record. Mr. Tikku

states that by 17.8.1998, photocopy of the relevant

record will be made available to Court. Originals have

been shown to us.

Judgment reserved."

12. The Division Bench that went on to reserve the

said judgment delivered it after almost 3 years and

allowed the appeals. Therein, it was held that the

proceedings initiated against the writ petitioners as

also against other officers, who were appellants in

the other LPAs, were vitiated as there was no

material to support the impugned orders of

termination which were camouflaged and thus, the

same were subject to judicial review. Accordingly,

vide judgment dated 21.12.2000, the relief of

consequential benefits was granted after setting

aside the order of termination. The relevant part

thereof is extracted herein:

"On a consideration of all the facts and circumstances

we are of the view that there is no other conclusion

possible except to say that the orders which are the

subject matter of the writ petitions and in the Letters

Patent Appeals are merely camouflage and orders

have been passed for extraneous reasons under the

11

Page 12 cloak of innocuous form of orders of termination. To

give an air on verisimilitude the respondents had held

the Court Martial proceedings which are wholly void.

Accordingly, we declare that the proceedings initiated

against the petitioners in the two writ petitions are

void in law and the orders passed against the other

officers, the appellants in L.P.As. are vitiated being

without any material and being camouflage. Having

dropped the idea not to conclude Court Martial

proceedings knowing fully well that the officers were

likely to be acquitted, without producing relevant

record before the concerned authority orders of

termination were passed flouting all norms. The

appellants in the L.P.A's and the petitioners in the two

writ petitions are entitled to all the consequential

benefits. We also hereby declare that the orders

passed against the appellants in the L.P.As are void in

law and the conviction and sentence by the GCMs

against the writ petitioners are void in law.

Consequently, the judgments of the learned Single

Judge which are subject matter in Latent Patent

Appeals are set aside and the writ petitions in those

cases are allowed and the Letters Patent Appeals

stand allowed and the two writ petitions also stand

allowed. All the writ petitions stand allowed to the

above extent indicated and other reliefs prayed for

cannot be considered by this Court and it is for the

law makers to attend to the same. There shall be no

order as to costs."

13. Another relevant event in this journey of judicial

conflict which is worth mentioning is that two

officers, namely, Subhash Juneja and Harish Lal

12

Page 13 Singh, whose writ petitions had been dismissed on

the ground of constructive res judicata, filed special leave

petitions that were converted to Civil Appeal Nos. 1931 and 1932 of 1997

and were finally dismissed by a three-Judge Bench of this Court vide

order dated 23.4.2003, which is quoted as under:

"The grievance of the appellants that is sought to be

agitated in these appeals is already settled by an

earlier judgment of the Delhi High Court in a Writ

Petition filed by the appellants themselves. The

appellants herein challenged the said judgment by

filing Special Leave Petitions and those Special Leave

Petitions having been dismissed by this Court, the

contentions raised by them have been finally decided

against the appellants herein.

The appellants are now trying to re-

agitate those issues because the High Court in

some other case has taken a different view. Mr.

Yogeshwar Prasad, the learned senior counsel

appearing for the appellants states that these cases

should be heard along with the cases of Union of

India which are pending against the latter view of the

High Court. We find no reason to do so. The

contention of the appellant raised was rightly

dismissed by the High Court in the impugned

judgment by applying the principles of

constructive res judicata. The appeals are

accordingly dismissed."

(Emphasis added)

14. Thus, it can be seen from the narration of facts

hereinabove that with regard to some of the

officers, who were involved in this very incident, the

evidence which had already been assessed by the

13

Page 14 High Court, had been looked into and it was found

that the doctrine of pleasure had been upheld in the

earlier round of litigation and, therefore, the matter

stood foreclosed and could not be reopened. The

adjudication, therefore, between the Union of India

who is the present appellant and the officers who

were involved in the same set of incidents had

attained finality up to this Court. It was in this

background that the Union of India filed the appeals

in the year 2001 against the judgment dated

21.12.2000 referred to hereinabove. The judgment

dated 21.12.2000 in relation to all the four sets of

litigations that have been referred to by the High

Court in its order dated 2.5.1995 is, therefore,

extracted hereinabove.

15. The appeals filed by the Union of India, pending

before this Court against the judgment dated

21.12.2000, were split into two parts by the order of

this Court dated 14.2.2006, which is extracted

herein:

14

Page 15 "C.A. Nos.2949-2950/2001 :

Arguments heard.

Judgment reserved.

The entire original record including the

administrative receipts be called for either

by FAX or by telephonic message

immediately by the Registrar (Judicial).

C.A.Nos.2951-2957/2001 :

De-linked.

These matters shall be heard separately.

List after four months."

16. Accordingly, the arguments were heard and

judgment was reserved in the matter arising out of

the two writ petitions filed by Ranbir Singh Rathaur

and Ashok Kumar Rana alongwith which delinked

seven LPAs were also disposed of even though it

was observed by this Court that they arose out

of the same incident. This Court vide judgment

dated 22.3.2006 in the case of Union of India & Ors.

vs. Ranbir Singh Rathaur & Ors., (2006) 11 SCC 696 reversed the

judgment of the High Court dated 21.12.2000 vis-a-vis the two writ

petitions and held as follows:

"On a bare reading of the High Court's order and the

averments in the writ petitions, one thing is crystal clear

that there was no definite allegation against any person

who was responsible for the so-called manipulation. It is

also not clear as to who were the parties in the writ

petitions filed. In the grounds indicated in the writ petitions

15

Page 16 it was stated that there is no bar or impediment on the

High Court reviewing the petitioner's case as also

connected cases to enquire into the validity of the acts

done against the writ petitioner. Therefore, it was an

accepted position that the writ petitioners wanted review

of the High Court's order, which is clearly impermissible.

No ground for seeking such review apparently was made

out. In any event we feel that the High Court's approach

is clearly erroneous. The present appellants in the counter-

affidavit filed had raised a preliminary objection as

regards the maintainability of the writ petitions and had

requested the High Court to grant further opportunity if the

necessity so arises to file a detailed counter-affidavit after

the preliminary objections were decided. The High Court

in fact in one of the orders clearly indicated that the

preliminary objections were to be decided first. But

strangely it did not do so. It reserved the judgment and

delivered the final judgment after about three years. There

is also dispute as to whether the relevant documents were

produced. What baffles us is that in the High Court,

records with original documents were shown to it and the

Bench wanted the copies to be filed. In the impugned

judgment the High Court proceeded on the basis as i f

only a few pages of the files were shown. I f that was

really the case, there was no necessity for the High Court

to direct the present appellants to file copies. If after

perusal of the documents the High Court felt that these

were not sufficient the same would have been stated. But

that does not appear to have been done. The High Court

also had not discussed as to how the matters which stood

concluded could he reopened in the manner done. No

sufficient grounds have been even indicated as to why the

High Court felt it necessary to do so. To say that though

finality had been achieved, justice stood at a higher

pedestal is not an answer to the basic question as to

whether the High Court was competent to reopen the

whole issue which had become concluded. The persons

whom the High Court felt were responsible for alleged

manipulation or persons behind false implication were not

impleaded as parties. Newspaper reports are not to be

considered as evidence. The authenticity of the newspaper

reports was not established by the writ petitioners. Even

otherwise, this could not have been done in a writ petition,

as disputed questions of fact were apparently involved. The

matters which the High Court found to have been

established were really not so. The conclusions were based

16

Page 17 on untested materials, and the writ petitioners had not

established them by evidence. Since the High Court has not

dealt with the matter in the proper perspective we feel that

it would be proper for the High Court to rehear the matter.

The High Court shall first decide the preliminary

objections raised by the present appellants about the non-

maintainability of the writ petitions. Normally such a

course is not to be adopted. But in view of the peculiar

facts involved, it would be the appropriate course to be

adopted in the present case. Therefore, we remit the matter

to the High Court for fresh hearing. We make it clear

that whatever we have observed should not be treated to be

the conclusive findings on the subject-matter of

controversy. The appeals are allowed without any order as

to costs. Since the matter is pending since long, we request

the High Court to dispose of the matter as early as

practicable, preferably within four months from the date of

receipt of the judgment. No costs. " (Emphasis added)

17.On remand, the High Court dismissed the writ

petitions vide judgment dated 20.12.2007 and the

same has been placed on record by the appellants.

18.So far these appeals are concerned, the High Court

by the impugned common order dated 21.12.2000, not

only quashed the termination orders but also court

martial proceedings held against some of the officers.

19.The Division Bench of this Court, after hearing the

counsel appearing for the parties and legal contentions

17

Page 18 urged, formulated the following points for

consideration by a larger bench [ Union of India vs. S.P.

Sharma, (2013) 10 SCC 150]:-

“31. With reference to the aforesaid rival

factual and legal contentions urged, the

following points would arise for consideration in

these appeals:

31.1. Whether the orders of termination

passed by the first appellant in absence of

material evidence and improper exercise of

power by the first appellant amount to fraud

being played on the respondent officers and

are vitiated in law on account of legal

malafides and legal malice?

31.2. Whether the order of dismissal of earlier

writ proceedings and confirming the same by

this Court vide order dated 1-9-1980 in relation

to the same respondent officers in C.As. Nos.

2951, 2954, 2955, 2956 and 2957 of 2001

amounts to doctrine of merger and operates as

res judicata against the present appeals?

31.3. Whether the exercise of doctrine of

pleasure under Section 18 of the Army Act read

with Article 310 of the Constitution by the first

appellant in the absence of any material

evidence against the respondent officers and

non-production of the relevant records/files of

these officers render the orders of termination

as illegal and invalid?

31.4. Whether the order of termination is

arbitrary, capricious, unreasonable and

violative of Articles 14, 16, 19 and 21 of the

Constitution of India?

31.5. Whether the impugned judgment and

order of the High Court is vitiated either on

account of erroneous reasoning or error in law

and warrant interference by this Court?”

18

Page 19 20. The learned Additional Solicitor General at the very

outset submitted that issues involving security of the

State were extremely complex and the issue related to

the expediency and desirability of retaining officers in

the Army who had become security suspects. The instant

cases of the respondent officers were examined at

various levels in the Army Headquarters as also in the

Central Government and the final decision to exercise

the power to pass an order of termination was taken by

it under Section 18 of the Army Act. Learned counsel

relied upon the judgment of this Court in B.P. Singhal

vs. Union of India & Ors. (2010) 6 SCC 331 and

contended that the parameters that are required to be

taken into consideration for exercise of power under

Article 310 of the Constitution are varied. Several of

these parameters entail evaluation of issues relevant to

the security of the State. The factors that form the basis

of exercise of power under Article 310 of the Constitution

cannot be said to be objective parameters that are

19

Page 20 amenable to judicially manageable standards. The

reasons that form the basis of exercise of power under

Article 310 can extend to varied levels of subjective

assessments and evaluations in entailing expert

knowledge as to issues of security of the State. In that

view of the matter it is submitted that exercise of power

of judicial review would accord great latitude to the bona

fide evaluation made by the competent authorities in the

course of discharge of the duties. The correctness of the

opinion formed or the sufficiency of material forming the

basis of their decision to pass an order of termination

would not be subjected to judicial scrutiny of either the

High Court or this Court. Further, placing strong reliance

upon B.P. Singhal case, (supra) it is contended by the

learned Additional Solicitor General that exercise of

power of judicial review under Article 310 is extremely

narrow and is limited to only one parameter, namely,

violation of fundamentals of constitutionalism. The

standard of judicial review which applies to the case of

exercise of executive or statutory or quasi-judicial power

20

Page 21 cannot be extended to the case of judicial review of

constitutional power under Article 310. Learned counsel

submitted that the fact that Article 311 does not apply to

the case of officers/employees of armed forces, the

power under Article 309 also cannot be exercised for

limiting the ambit of Article 310. The Army Act is an

enactment under Article 309. The aforesaid legal

principle has been followed consistently in all

subsequent decisions of this Court. In this connection

learned counsel relied upon the judgment of this Court

in Moti Ram Deka vs. North East Frontier Railways

(1964) 5 SCR 683. Further, the Constitution Bench of this

Court in Ram Sarup vs. Union of India, AIR 1965 SC

247 with reference to Article 33 of the Constitution, has

laid down limitations provided on the applicability of

fundamental rights guaranteed to the officers/employees

of the Army under Articles 14, 16 and 21 of the

Constitution and under Section 21 of the Army Act. He

has further contended that each of the provisions of the

Army Act also carries the sanction of Parliament against

21

Page 22 the applicability of all other fundamental rights contained

under Part III of the Constitution to the extent to which

the rights contained in the fundamental rights are

inconsistent with the provisions of the Army Act. The

aforesaid enunciation of law has again been followed

consistently by this Court in subsequent decisions.

21. The learned Additional Solicitor General further

contended that in a matter of civilian employees, Article

311 represents a limitation over the absoluteness of

pleasure doctrine contained in Article 310. In Moti Ram

Deka (supra) and in the subsequent cases, this Court

laid down that Article 311 introduces a twofold

procedural safeguard in favour of an employee/officer in

relation to the exercise of pleasure doctrine. However,

Article 311 applies only in cases of punishment and not

otherwise. The availability of the safeguards provided for

under Article 311 is contingent upon and limited to cases

where the power of termination of services of an

employee/officer is exercised by the disciplinary

22

Page 23 authority by way of punishment. The applicability of

Article 311 of the Constitution being dependent on the

factum of the order of termination being in the nature of

a punishment, judicial review undertaken in case of

civilian employees entails the necessity for and the

power of determining as to whether the order impugned

is in the nature of a punishment or not. The doctrine of

“foundation”, “camouflage” and the principles of judicial

review, encompassing the necessity and the power of

determining, whether the order impugned is by way of a

punishment is thus a direct emanation and a logical

corollary of the nature of enquiry warranted when Article

311 applies to a case.

22. Since the provisions of Article 311 of the Constitution

admittedly do not apply to these cases, it relates to the

domain of civilian employees/officers service

jurisprudence, which is controlled by Article 311, cannot

be invoked in the case of employees/officers of armed

forces. Since the protection of Article 311 cannot be

23

Page 24 claimed in the case of employees of armed forces, no

enquiry as to whether the order is by way of a

punishment, which is the sine qua non for applicability of

Article 311, is warranted. The legal issue requires to be

considered by this Court in the context of the fact as to

whether by virtue of anything contained in the language

of Article 310 or the other provisions of the Constitution,

the constitutional power under Article 310 can be

construed to be limited to cases of termination

simpliciter. It is contended on behalf of the appellants

that neither the language of Article 310 nor any other

provision of the Constitution warrants adoption of such a

narrow construction. Further, the learned Additional

Solicitor General has contended that this Court has

consistently held that the ambit of the doctrine of

pleasure, contained under Article 310, is an absolute

power, save to the extent provided otherwise by an

express provision of the Constitution. The only express

limitation on the power of Article 310 exists under the

Constitution in relation to the tenure of certain

24

Page 25 constitutional functionaries such as the Hon’ble Judges of

the High Court and the Supreme Court. He further

contends, placing reliance upon Moti Ram Deka

(supra) that this Court has laid down the legal principle;

that the ambit of Article 310 is circumscribed only by the

provisions of Article 311 and that even Article 309 does

not circumscribe the said power. The conferment of

power upon the President of India under Article 310 is in

absolute terms. Therefore, there is no basis for

suggesting that the power under Article 310 ought to be

construed as excluding the power to dismiss an

employee or officer for misconduct. The very fact that

Article 310 makes the tenure subject to the absolute

pleasure of the President means that the President can

exercise the said power for any reason and without

assigning any cause or reason and this is precisely what

has been laid down by this Court in B.P. Singhal

(supra). He further contends that the power under

Article 310 also encompasses the power to dismiss an

employee or officer for misconduct and Article 311 is

25

Page 26 inapplicable in respect of an employee or officer of the

armed forces. It is further submitted that in case of

armed forces scrutiny of an order passed under Article

310 would neither warrant an enquiry as to the

foundation of the order nor an enquiry as to whether the

order is in the nature of punishment. Therefore, he

submits that the necessary corollary thereof would be

that the competent authority is also free to abandon any

statutory procedure at any stage and take resort to the

constitutional power under Article 310 by the President

to terminate the services of an employee/officer of the

armed forces. The ambit of such power cannot be

circumscribed with reference to the concepts that govern

the exercise of the power in relation to civilian

employees/officers.

23. Learned Additional Solicitor General put reliance on

Chief of Army Staff vs. Major Dharam Pal Kukrety ,

(1985) 2 SCC 412 where this Court has also upheld the

competent authority’s power to switch over to its power

26

Page 27 under Section 18 of the Army Act upon abandonment of

the GCM proceedings against its employees/officers. The

authorities are competent to take recourse to their

statutory power under Section 19 in a case where the

court martial exercise initiated by them becomes futile.

It cannot be contended by the officer that where

alternative powers under the statute can be resorted to

in such situations the authority cannot resort to its

constitutional power under Article 310 but pass an order

of termination against the officer of the Army. Such

provision of the statutory power including Section 19 of

the Army Act can be said to be subject to the limitations

of the scheme of the Army Act. Power under Article 310,

which is constitutional power, is wider and certainly

cannot be subjected to the constraints flowing from the

scheme of the Army Act. It is further contended that this

Court has examined the legality and validity of similar

orders of termination in exercise of power under Article

310 of the Constitution by the President upholding the

27

Page 28 orders of termination passed in exercise of the aforesaid

constitutional statutory provisions.

24. Shri P.P. Rao, learned senior counsel appearing for

respondent Major S.P. Sharma, firstly brought to our

notice the sequence of the events happened so far as

this respondent is concerned. According to the learned

counsel in spite of unblemished career and academic

experience Major Sharma was arrested in 1979 and was

lodged in a cell and was denied the basic facilities. The

said respondent represented to the Chief of Army Staff

and Deputy Chief of Army Staff-GOC about the inhuman

treatment. However, in 1979 a charge report was

handed over to the respondent on 14.04.1979 for which

he was arrested. It was alleged by the respondent that

the army authorities released false, defamatory and

fabricated press release stating that the respondent

was the ring leader of the group with 15 others and was

spying for Pakistan, having received huge sum in Indian

currency for passing of information to Pakistan about

28

Page 29 the Indian Army. A second charge report was handed

over to the respondent. Later on a summary of

evidence was commenced on the basis of false

allegation.

Mr. Rao, then contended that about 27

prosecution witnesses were examined and all of them

spoke about his honesty and integrity and uprightness.

Learned senior counsel submitted that when the

charges against the present respondent were not

substantiated he was released from arrest and

suspended from duties. He was granted leave and after

that he was recalled for duty and an order of dismissal

dated 11.01.1980 was served and handed over to the

respondent. Subsequently, by a corrigendum the order

of dismissal of the respondent was substituted by an

order of termination.

25. Mr. Rao, has not disputed the fact that the said

respondent Major S.P. Sharma filed a writ petition being

W.P. No.418 of 1980 challenging the order of dismissal

29

Page 30 dated 11.01.1980. The said writ petition was dismissed

by a Division Bench of the Delhi High Court and against

the said order the respondent preferred a Special Leave

Petition before this Court being 7225 of 1980 which was

also dismissed. When the order of dismissal attained

finality, the respondent was served with a show cause

notice as to why a cut-off 5% in the retirement gratuity

and Death-Cum-Retirement Gratuity be not imposed as

his service was not satisfactory. The respondent

Sharma again challenged the said notice by filing a writ

petition in the High Court being W.P. No.1643 of 1982.

In the said Writ Petition the respondent also challenged

the order dated 03.03.1980 by which the dismissal was

substituted by an order of termination. The said writ

petition was dismissed by the High Court on 22.03.1985

holding that the said order of termination is a

termination simpliciter without being any stigma

attached. The said order was challenged by the

respondent by filing LPA No.77 of 1993. The matter

then travelled to a Full Bench and finally concluded by

30

Page 31 the impugned order passed by the Division Bench of

the Delhi High Court.

26. Mr. P.P. Rao, learned senior counsel advanced his

argument on the points formulated by this Court and

submitted that the second writ petition cannot, at any

stretch of imagination, be held to be barred by the

principles of res judicata. Learned counsel further

submitted that by issuing an order of termination in

place of dismissal, the entire finding recorded by the

Court while considering the order of dismissal got

washed off, hence there can be no res judicata.

27. Mr. Rao then drew our attention to the counter affidavit

filed by the appellant Union of India before the High

Court and submitted that if the offence was so grave

then the respondent should have been punished

instead of dismissal from service.

31

Page 32 28. Mr. Rao vehemently argued by giving reference to the

finding recorded by the High Court that non-production

of records and the materials which are the basis for

passing the order of termination is wholly illegal,

arbitrary and unjustified. He reiterated that for the

non-production of materials and records in spite of

being directed by the Court, adverse inference has to

be drawn. According to the learned senior counsel,

withholding of documents by the constitutional

authority and the Government is a serious matter and,

therefore, the High Court has rightly held the order of

termination bad in law. In this regard learned counsel

referred and relied upon the decisions of this Court in

Gopal Krishnaji Ketkar vs. Mahomed Haji Latif &

Ors. 1968 (3) SCR 862 and Ghaio Mall & Sons vs.

State of Delhi & Ors., 1959 SCR 1424.

29. On the question of doctrine of pleasure, Mr. Rao firstly

contended that the constitutional provisions contained

in Article 309, 310 and 311 are subject to Article 14 of

the Constitution. According to the learned counsel,

32

Page 33 Article 14, 15 and 21 constitute the core values and

such right cannot be taken away on the plea of doctrine

of pleasure. In this connection he relied on I.R.

Coelho vs. State of Tamil Nadu, (2007) 2 SCC 1.

30. Mr. Rao then contended that Article 33 of the

Constitution is in the nature of exception but it does not

abrogate the fundamental rights. In other words,

Article 33 does not speak about the basic structure of

the Constitution. Learned counsel relied upon the

decision of this Court in B.P. Singhal vs. U.O.I.,

(2010) 6 SCC 331.

31. Mr. Rao then contended that Article 33 in any event

shall be given restricted interpretation for the reason

that any law which restricts the fundamental rights

shall be strictly interpreted. In this connection learned

counsel referred to (1974) 1 SCC 645: Bhut Nath

Mete vs. State of West Bengal. Mr. Rao addressed

on legal malice and malice in law and referred a

33

Page 34 decision of this Court in Ravi Yashwant Bhoir vs.

District Collector, Raigad & Ors., (2012) 4 SCC 407.

32. Mr. Rao submitted that only notings were produced

before the High Court but the material on the basis of

which opinion was formed was not produced. The

detailed summary of evidence, different memos and

other documents produced in the court martial

proceeding were also not produced before the High

Court. Learned counsel submitted that those notings

produced before the High Court are not material, rather

advisory material. Learned counsel referred to some of

the paragraphs of the judgment rendered in S.R.

Bommai and Ors. vs. Union of India and Ors. ,

(1994) 3 SCC 1.

Learned counsel lastly submitted that although

5% cut in gratuity has been withdrawn by the appellant,

the termination has to be held as bad.

34

Page 35 33.Mr. Deepak Bhattacharya, learned counsel appearing on

behalf of Major Ajwani in C.A. No.2953 of 2001, firstly

submitted that the order of termination under Section 18

of the Army Act is a colourable exercise of power which

is arbitrary, capricious and unreasonable. Learned

counsel submitted that the pleasure doctrine is the

residual executive power under Section 53 of the

Constitution and hence amenable to judicial review to

ensure that the same follows the satisfaction of the

President after due application of mind and without any

arbitrary, capricious and un-reasonable exercise of

power. According to the learned counsel the respondent

Major Ajwani was arrested and kept in solitary

confinement without being informed of any reason for

the same and, thereafter, criminal proceedings were

initiated against him. It was contended that the criminal

proceedings against him was abandoned without

informing him any reason for the same and finally he

was illegally terminated under Section 18 of the Army

Act.

35

Page 36 34.On the question of res judicata, learned counsel

submitted that there is no pleading of res judicata ever

raised by the appellant. However, learned counsel

adopted the argument advanced by Mr. P.P. Rao on the

question of res judicata.

35.Mrs. Kiran Suri, learned counsel appearing for Capt.

Arun Sharma and Capt. J.S. Yadav in C.A.No.2954 of

2001 and C.A.No. 2957 of 2001, firstly submitted that

there is no decision on merit in the earlier writ petition

and, therefore, the question of application of res

judicata does not arise. The writ petition was

dismissed since the pleasure doctrine was invoked and it

is open to judicial review. Learned counsel relied upon

the decision of this Court in Mathura Prasad Bajoo

Jaiswal vs. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613;

Supreme Court Employees’ Welfare Association vs. Union

of India and Anr. (1989) 4 SCC 187; Isabella Johnson

(Smt.) vs. M.A. Susai(dead) by LRs. (1991) 1 SCC 494

and Kishan Lal vs. State of J&K (1994) 4 SCC 422.

Learned counsel then contended that the issue involved

in the later proceedings was not an issue in the earlier

36

Page 37 proceedings inasmuch as the later writ petition was

filed challenging the subsequent order converting the

order of dismissal to order of termination and also a

notification as to cut of gratuity.

36.Mrs. Suri then submitted that the order in the first

proceeding is an order which has been the result of

suppression of documents/facts by the appellant when

these facts/documents were only within the knowledge

of the appellant. Hence suppression of facts and

documents would not entitle the appellant to raise the

technical plea of res judicata and to take advantage of

the same. It was contended that the appellant is under

the public duty to disclose the true facts to the court

which has not been done and it will amount to obtaining

the order by fraud.

37.On the issue of doctrine of pleasure Mrs. Suri submitted

that exercise of doctrine of pleasure in the absence of

any material evidence against the respondent and non-

production of relevant records of these officers render

37

Page 38 the order of termination as illegal and invalid. Learned

counsel submitted that the justiciability of an action by

the executive government is open to challenge on the

ground of malafide and also that the formation of opinion

is on irrelevant material. Learned counsel in this regard

referred to a decision of this Court in the case of B.P.

Singhal (supra) and Jay Laxmi Salt Works (P) Ltd. vs.

State of Gujarat (1994) 4 SCC 1. Lastly, it was

contended that the President has been misled without

producing the relevant material and on the basis of

false and misleading noting, order was obtained which

amount to fraud and legal malafide.

38.Mr. A.K. Panda, learned senior counsel appearing on

behalf of respondent Capt. V.K. Diwan in C.A. No.2956

of 2001, made his submission with regard to the

interpretation of Articles 309, 310 and 311 of the

Constitution. According to the learned counsel Article

310 is not controlled by any legislation, on the contrary

it is contended that Article 310 is subject to Article 309

or 311 of the Constitution. It was contended that the

38

Page 39 respondent would have been exonerated had the court-

martial proceedings been continued. But just to avoid

court martial the appellant took recourse to terminate

the services by applying the ‘pleasure’ doctrine. On the

point of res judicata learned counsel relied upon the

decision in the case of V. Rajeshwari (Smt) vs. T.C.

Saravanabava, (2004) 1 SCC 551 and Maneka

Gandhi vs. Union of India & another, (1978) 1 SCC

248.

39.Mr. Panda, learned senior counsel further contended that

in spite of the several opportunities given by the Delhi

High Court, the appellants failed to produce any material

against the present respondents to satisfy the Court

that the termination was justified. Learned counsel

submitted that the High Court has carefully analysed all

the facts of the case and recorded a finding that the

termination was wholly malafide and devoid of any

substance.

39

Page 40 40. Mr. Kameshwar Gumber, learned counsel appearing on

behalf of Ex.Major R.K. Midha (now deceased) in C.A.

No. 2952 of 2009, at the very outset submitted that

although the respondent is dead now, the instant

appeal is contested only with an object to restore the

honour and to remove the stigma cast on him and the

family. Learned counsel, however, admitted that the

family of the deceased respondent has been getting all

pensionary benefits.

41. Ms. Amrita Sanghi, learned counsel appearing for the

respondent in C.A. No.2955 of 2001 on the issue of res

judicata, firstly contended that the earlier writ petition

filed by the respondent challenging the order of

dismissal was dismissed up to this Court without going

into the merit of the case and the issue of malafide was

not discussed. It was contended that the second writ

petition challenging the order of termination and the

show cause notice for deducting 5% of the gratuity was

on the basis of a fresh cause of action inasmuch as the

dismissal of writ petition up to this Court put an end to

40

Page 41 the proceedings of dismissal until the Government

came out with the order of termination with ulterior

motives. Learned counsel then contended that this

Court in the order dated 17.11.1994 in Special Leave

Petition agreed with the Full Bench and the matter was

sent back to the High Court for decision on merit. It

was for the first time the appellant-Union of India made

out a case that petitioners had been caught doing

espionage activity and thus considered a security

suspect. Adopting the argument of Mr. P.P. Rao, learned

senior counsel submitted that Article 33 of the

Constitution does not contemplate restricting or

abrogating the basic structure of the Constitution or the

core values of the Constitution.

42. First of all, we shall deal with the following

important points formulated by this Court referred

hereinabove i.e.

a)Whether the exercise of doctrine of

pleasure under Section 18 of the Army

Act read with Article 310 of the

Constitution in absence of any material

41

Page 42 evidence against the respondent- officer

and the non production of relevant

records/files of these officers rendered

the order of termination as illegal and

invalid?

b)Whether the order of termination is

arbitrary, capricious, unreasonable and

violative of Articles 14,16,19 and 21 of

the Constitution of India.

c)xxxxxxxx

d)Whether the order of termination

passed by the first appellant in

absence of material evidence and

improper exercise of power by the first

appellant amount to fraud being played

on the respondent officers and are

vitiated in the law on account of legal

malafides and legal malice?

43. All these three points are interconnected and,

therefore, will be discussed together. Admittedly,

the Division Bench while hearing the matter called

for the relevant records from the appellant and

same were produced in the Court. The Division

Bench took notice of those files and observed:-

42

Page 43 “55. The respondents had submitted for

our perusal four thin files without

proper pagination and indexing.

56. From a reading of the files

one could see that the proposal

had come from the Army Headquarters

Directorate of Military Intelligence for

termination of services of certain

officers under Section 18 of the Army

act, 1950 and that was accepted by the

concerned Ministry. The circumstances

under which the Directorate Military

Intelligence formed the opinion has not

been disclosed. A single sheet file has

been submitted to show that on

17.12.1980 there was a review of the

decision taken earlier and it appears

from a note typed out without any

signature of any authority, that the

very Director of the Military

Intelligence who proposed action have

been a party to the review meeting. From

the records produced no authority can

come to any conclusion on the decision

to be taken by the authorities concerned

for terminating service of the officers.

We wanted to satisfy ourselves about the

basis on which the action was proposed

by the Directorate Military

Intelligence. Apparently, the

Directorate of Military Intelligence

though that they are not obliged in law

to produce any record before the Court

and the decision of the Directorate

Military Intelligence cannot be

scrutinised by this Court.

xxxxx

xxxxx

129. It has now become absolutely

necessary to Notice the records

produced by the respondents. When one

the learned addl. Solicitor General

submitted that though the respondents

had claimed privilege they had no

43

Page 44 objection to place all the records for

the perusal of this Court to satisfy

whether the respondents had acted in

accordance with law. It is a little

disturbing to note that respondents

instead of producing the relevant

records pertaining to the officers

involved in the cases had just produced

three flaps. No numbers are given. On

flap contains three sheets. The first

sheet is mentioned as Index sheet. Index

sheet itself mentions that there is only

one page in the file. The other sheet

contains a note which states that all

the cases have been thoroughly reviewed

at Army Headquarters. The other sheet

shows that the matter was discussed in a

meeting held in the Home Secretary's

Room on 1.10.1980.

130. The next flap is empty. The same

note, as found in the earlier flap, is

found pinned on to the flap itself. In

the third flap there are 15 sheets. The

first sheet is typed as Index Sheet. It

states that "this file contains a total

of 12 pages". When there are 14 sheets

besides the Index Sheet and in some

sheets both sides are typed. Therefore,

the flap contains 12 pages is not

accurate. These sheets also do not give

us any relevant material to form an

opinion about the action taken by

the respondents. Therefore, - the

irresistible conclusion is that the

respondents have suppressed the material

records from this Court and are not

willing to part with or produce the same

for perusal of the Court. It cannot be

pretended by the respondents that there

are no other files available with them

except the three flaps produced before

this Court, as in the written notes

submitted by the learned Addl. Solicitor

General reference is made to file No. 9,

10, 18, 1, 2 and pages of the files are

44

Page 45 also given in the written notes, some

files containing more than 600

pages.”

44. On the basis of the aforesaid findings, the Division

Bench held that the respondent-appellant has not

placed any material justifying their action. The

Court has, therefore, concluded its findings in para

168 of the judgment which is reproduced

hereunder:-

“168. The whole of the bundle of facts

in the instant batch of cases would

appear to be a pot boiler to project the

image of the Military Intelligence

Directorate, leaving us at the

end with the cliff hanger

without any iota of materials to form an

opinion about the involvement of the

appellants and the petitioners. They

have chosen not to produce the entire

records without realising their

constitutional obligation. Just to make

an apology they have produced some flaps

as if they constitute all the records in

the case. In a system where rule of law

reigns supreme the deportment of the

respondents cannot at all be tolerated.

Justice Holmes of the Supreme Court of

the United States of America Speaking

for the Supreme Court in Wisconsin vs.

Illinois, 281 US 179.

"The State "must... yield to an authority

that is paramount to the State".

45

Page 46 45. Mr. Paras Kuhad, learned Additional Solicitor

General assailed the aforesaid finding as being

incorrect and submitted that all the relevant

materials were produced before the Court and

after hearing was concluded, all those original

papers were returned back to the appellant. The

appellant had submitted the photocopy of all the

relevant material.

46. During the course of hearing, Learned Additional

Solicitor General produced before us all those files

and documents which were produced before the

High Court. The Additional Solicitor General also

produced the link file as directed by us.

47. Mrs. Kiran Suri, learned senior counsel appearing

in one of the Civil Appeal No.2954 of 2001,

submitted a note wherein she has mentioned that

on 3.1.2001 the Advocate received back the

following original file from the High Court as per

46

Page 47 the receipt produced by the appellant in L.P.A.

No.43 of 1987 and other connected matters.

i) GCM proceedings in respect of Capt. A.K. Rana IC

23440H (Page 1-615)

ii) GCM Proceedings in respect of Capt

R.S. Rathaur IC 23720 N (Page 1-

577)

iii) File containing analysis of

Espionage

cases in the respect of all the Appellants.

(Page 1-13)

iv) Brief of Samba spy Cases

(Page 1-6)

v) File showing approval of

Chief of Army

Staff in respect of all cases. (Page 1-9)

vi) File showing approval of

Govt, of India in

respect of all the cases. (Page 1-12)

vii) File showing note from

PMO's Office

regarding review note of review at office of

Home Secretary (Page 1-2)

48.We have minutely perused all the records including

notings along with link file produced by the Additional

Solicitor General. On perusal and scrutiny of all those

materials we are of the view that the High Court has

committed grave error of record and there is total non-

application of mind in recording the aforesaid findings.

47

Page 48 From the record, it is evidently clear that the inquiry

against these respondents were initiated by the Army

Headquarters, Director of Military Intelligence. The file

traveled from Chief of the Army Staff to Ministry of

Defence with the strong recommendation to terminate

the services of the respondents in the interest of

security of the State as there was some material to

show that these officers were involved in espionage

cases. The recommendation for termination of their

services up to the Defence Ministry was finally

approved by the Prime Minister who also happened to

be the Defence Minister of India at that time. The file

was then placed before the President of India who in

exercise of the constitutional power terminated the

services of these officers.

49.The link file further reveals that confessional

statements of Captain Rana and other officers were

also recorded and strong prima facie case was found

relating to the involvement of these officers in

48

Page 49 espionage activities and sharing information with the

Pakistani intruders.

50.On assessing the materials contained in link file and

the notings showing the suggestions and

recommendations up to the level of defence ministry

and the Prime Minister, it cannot be held that the

impugned order of termination of services have been

passed without any material available on record.

There is no dispute that order of termination passed

against the Army personnel in exercise of ‘pleasure

doctrine’, is subject to judicial review, but while

exercising judicial review, this court cannot substitute

its own conclusion on the basis of materials on record.

The Court exercising the power of judicial review has

certain limitations, particularly in the cases of this

nature. The safety and security of the nation is above

all/everything. When the President in exercise of its

constitutional power terminates the services of the

Army officers, whose tenure of services are at the

pleasure of the President and such termination is

49

Page 50 based on materials on record, then this court in

exercise of powers of judicial review should be slow in

interfering with such pleasure of President exercising

constitutional power. In a constitutional set up, when

office is held during the pleasure of the President, it

means that the officer can be removed by the

Authority on whose pleasure he holds office without

assigning any reason. The Authority is not obliged to

assign any reason or disclose any cause for the

removal.

51.Thus, it is not a case where the decisions to terminate

the services of these officers were taken under the

‘pleasure doctrine’ without any material against the

officers. On the contrary, as noticed above, charges

were leveled that these officers were involved in certain

espionage activities.

52.In the instant case, on perusal of the link file it is further

revealed that detailed investigation was conducted and

50

Page 51 all evidence recorded were examined by the

Intelligence Department and finally the Authority came

to the finding that retention of these officers were not

expedient in the interest and security of the State. In

our view, sufficiency of ground cannot be questioned,

particularly in a case where termination order is issued

by the President under the pleasure doctrine.

53.A Constitution Bench of this Court in the case of the

State of Rajasthan & Ors. vs. Union of India &

Ors. 1977 (3) SCC 592, while considering a

constitutional power of the President under Article 356

of the Constitution observed:-

“81. A challenge to the exercise of

power to issue a proclamation under

Article 352 of the Constitution would be

even more difficult to entertain than to

one under Article 356(1) as all these

considerations would then arise which

Courts take into account when the

Executive, which alone can have all the

necessary information and means to

judge such an issue, tells Courts that the

nation is faced with a grave national

emergency during which its very

51

Page 52 existence or stability may be at stake.

That was the principle which governed

the decision of the House of Lords in

Liversidge v. Anderson. The principle is

summed up in the salutary maxim:

Salus Populi Supreme Lex. And it was

that principle which this Court, deprived

of the power to examine or question any

materials on which such declarations

may be based, acted in Additional

District Magistrate, Jabalpur v.

Shivakant Shukla We need not go so far

as that when we have before us only a

proclamation under Article 356(1).

xxxxxxxx

xxxxxxxx

87. Courts have consistently held issues

raising questions of mere sufficiency of

grounds of executive action, such as the

one under Article 356(1) no doubt is to

be non-justiciable. The amended Article

356(5) of the Constitution indicates that

the Constitution-makers did not want

such an issue raising a mere question of

sufficiency of grounds to be justiciable.

To the same effect are the provisions

contained in Articles 352(5), 360(5).

Similarly, Articles 123(4), 213(4), 239

B(4) bar the jurisdiction of courts to

examine matters which lie within the

executive discretion. Such discretion is

governed by a large element of policy

which is not amenable to the jurisdiction

of courts except in cases of patent or

indubitable malafides or excess of

power. Its exercise rests on materials

which are not examinable by courts.

52

Page 53 Indeed, it is difficult to imagine how

the grounds of

action under Article 356(1) could be

examined when Article 74(2) lays down

that “the question whether any, and if

so, what advice was tendered by the

Ministers to the President, shall not be

inquired into in any court”.

54. In order to appreciate the application of constitutional

provisions in respect of defence services, it would be

appropriate to quote Articles 309, 310 and 311 of the

Constitution. These articles read as under:-

“Article 309:- Recruitment and conditions of

service of persons serving the Union or a State

Subject to the provisions of this Constitution,

Acts of the appropriate Legislature may

regulate the recruitment, and conditions of

service of persons appointed, to public services

and posts in connection with the affairs of the

Union or of any State: Provided that it shall be

competent for the President or such person as

he may direct in the case of services and posts

in connection with the affairs of the Union, and

for the Governor of a State or such person as

he may direct in the case of services and posts

in connection with the affairs of the State, to

make rules regulating the recruitment, and the

conditions of service of persons appointed, to

such services and posts until provision in that

behalf is made by or under an Act of the

appropriate Legislature under this article, and

any rules so made shall have effect subject to

the provisions of any such Act.”

Article 310:- Tenure of office of persons serving

the Union or a State

53

Page 54 (1) Except as expressly provided by this

Constitution, every person who is a member of

a defence service or of a civil service of the

Union or of an all India service or holds any

post connected with defence or any civil post

under the Union, holds office during the

pleasure of the President, and every person

who is a member of a civil service of a State or

holds any civil post under a State holds office

during the pleasure of the Governor of the

State.

(2) Notwithstanding that a person holding a

civil post under the Union or a State holds

office during the pleasure of the President or,

as the case may be, of the Governor of the

State, any contract under which a person, not

being a member of a defence service or of an

all India service or of a civil service of the

Union or a State, is appointed under this

Constitution to hold such a post may, if the

President or the Governor as the case may be,

deems it necessary in order to secure the

services of a person having special

qualifications, provide for the payment to him

of compensation, if before the expiration of an

agreed period, that post is abolished or he is,

for reasons not connected with any misconduct

on his part, required to vacate that post.”

Article 311:- Dismissal, removal or reduction in

rank of persons employed in civil capacities

under the Union or a State

(1) No person who is a member of a civil

service of the Union or an all India service or a

civil service of a State or holds a civil post

under the Union or a State shall be dismissed

or removed by a authority subordinate to that

by which he was appointed

(2) No such person as aforesaid shall be

dismissed or removed or reduced in rank

except after an inquiry in which he has been

informed of the charges against him and given

a reasonable opportunity of being heard in

respect of those charges Provided that where it

54

Page 55 is proposed after such inquiry, to impose upon

him any such penalty, such penalty may be

imposed on the basis of the evidence adduced

during such inquiry and it shall not be

necessary to give such person any opportunity

of making representation on the penalty

proposed: Provided further that this clause

shall not apply

(a) where a person is dismissed or removed or

reduced in rank on the ground of conduct

which has led to his conviction on a criminal

charge; or

(b) where the authority empowered to dismiss

or remove a person or to reduce him in rank

ins satisfied that for some reason, to be

recorded by that authority in writing, it is not

reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the

case may be, is satisfied that in the interest of

the security of the State, it is not expedient to

hold such inquiry;

(3) If, in respect of any such person as

aforesaid, a question arises whether it is

reasonably practicable to hold such inquiry as

is referred to in clause (2), the decision thereon

of the authority empowered to dismiss or

remove such person or to reduce him in rank

shall be final.”

55. Article 309 empowers the appropriate legislature to

regulate the recruitment and conditions of services of

persons appointed in public services and posts in

connection with the affairs of the Union or the State.

But Article 309 is subject to the provisions of the

Constitution. Hence, the Rules and Regulations made

55

Page 56 relating to the conditions of service are subject to

Articles 310 and 311 of the Constitution. The Proviso

to Article 309 confers powers upon the President in

case of services and posts in connection with the

affairs of the Union and upon the Governor of a State

in connection with the services and posts connected

with the affairs of the State to make rules regulating

the recruitment and the conditions of services of the

persons appointed. The service condition shall be

regulated according to such rules.

56. Article 310 provides that every person, who is a member

of the defence service or of a civil service of the Union

or All India Service, or any civil or defence force shall

hold such posts during the pleasure of the President.

Similarly, every person who is a Member of the Civil

Services of a State or holds any civil post under a State,

holds office during the pleasure of the Governor of the

State. It is worth to mention here that the opening

word of Article 310 “Except as expressly provided by

56

Page 57 this Constitution” makes it clear that a Government

servant holds the office during the pleasure of the

President or the Governor except as expressly provided

by the Constitution.

57. From bare perusal of the provisions contained in Article

311 of the Constitution, it is manifestly clear that

clauses (i) and (ii) of Article 311 impose restrictions

upon the exercise of power by the President or the

Governor of the State of his pleasure under Article 310

(1) of the Constitution. Article 311 makes it clear that

any person who is a member of civil services of the

Union or the State or holds civil posts under the Union

or a State shall not be removed or dismissed from

service by an authority subordinate to that by which he

was appointed. Further, clause (ii) of Article 311

mandates that such removal or dismissal or reduction

in rank of the members of the civil services of the Union

or the State shall be only after giving reasonable

opportunity of hearing in respect of the charges leveled

57

Page 58 against him. However, proviso to Article 311 (2) makes

it clear that this clause shall not apply inter-alia where

the President or the Governor, as the case may be, is

satisfied that in the interest of the security of the State

it is not expedient to hold such enquiry.

58. The expression “except as otherwise provided in the

Constitution” as contained in Article 310 (1) means this

Article is subject only to the express provision made in

the Constitution. No provision in the statute can curtail

the provisions of Article 310 of the Constitution. At this

juncture, I would like to refer Sections 18 and 19 of the

Army Act as under:-

“18. Tenure of service under the Act – Every

person subject to this Act shall hold office

during the pleasure of the President.

19. Termination of service by Central

Government. Subject to the provisions of this

Act and the rules and regulations made there

under the Central Government may dismiss, or

remove from the service, any person subject to

this Act.

59.The aforesaid two Sections i.e. 18 and 19 are distinct

and apply in two different stages. Section 18 speaks

58

Page 59 about the absolute discretion of the President

exercising pleasure doctrine. No provisions in the Army

Act curtail, control or limit the power contained in

Article 310(1) of the Constitution. Article 309 enables

the legislature or executive to make any law, rule or

regulation with regard to condition of services without

impinging upon the overriding power recognized under

Article 310 of the Constitution. A Constitution Bench of

this Court in State of Uttar Pradesh and others vs.

Babu Ram Upadhayay , (1961) 2 SCR 679, held that

the Constitution practically incorporated the provisions

of Sections 240 and 241 of the Government of India

Act, 1935 in Articles 309 and 310 of the Constitution.

But the Constitution has not made “the tenure of

pleasure” subject to any law made by the legislature.

On the other hand, Article 309 is expressly made

subject to the provisions of Article 310 which provides

for pleasure doctrine. Hence, it can safely be

concluded that the Army Act cannot in any way

override or stand higher than Constitutional provisions

59

Page 60 contained in Article 309 and consequently no provision

of the Army Act could cut down the pleasure tenure in

Article 310 of the Constitution. In another Constitution

Bench Judgment of this Court in Moti Ram Deka case

(1964) 5 SCR, 683, their Lordships observed that Article

309 cannot impair or affect the pleasure of the

President conferred by Article 310. There is no doubt,

Article 309 has to be read subject to Articles 310 and

311 and Article 310 has to be read subject to Article

311.

60. In the case of B.P. Singhal (supra), a Constitution

Bench of this Court has elaborately discussed the

application and object of the doctrine of pleasure and

considered most of the earlier decisions rendered by

this Court. Some of the paragraphs are worth to be

quoted herein below:-

“22. There is a distinction between the doctrine of

pleasure as it existed in a feudal set-up and the

doctrine of pleasure in a democracy governed by

the rule of law. In a nineteenth century feudal set-

up unfettered power and discretion of the Crown

was not an alien concept. However, in a democracy

60

Page 61 governed by rule of law, where arbitrariness in any

form is eschewed, no Government or authority has

the right to do what it pleases. The doctrine of

pleasure does not mean a licence to act arbitrarily,

capriciously or whimsically. It is presumed that

discretionary powers conferred in absolute and

unfettered terms on any public authority will

necessarily and obviously be exercised reasonably

and for the public good.

33. The doctrine of pleasure as originally envisaged

in England was a prerogative power which was

unfettered. It meant that the holder of an office

under pleasure could be removed at any time,

without notice, without assigning cause, and

without there being a need for any cause. But

where the rule of law prevails, there is nothing like

unfettered discretion or unaccountable action. The

degree of need for reason may vary. The degree of

scrutiny during judicial review may vary. But the

need for reason exists. As a result when the

Constitution of India provides that some offices will

be held during the pleasure of the President,

without any express limitations or restrictions, it

should however necessarily be read as being

subject to the “fundamentals of constitutionalism”.

Therefore in a constitutional set-up, when an office

is held during the pleasure of any authority, and if

no limitations or restrictions are placed on the “at

pleasure” doctrine, it means that the holder of the

office can be removed by the authority at whose

pleasure he holds office, at any time, without notice

and without assigning any cause.

34. The doctrine of pleasure, however, is not a

licence to act with unfettered discretion to act

arbitrarily, whimsically, or capriciously. It does not

dispense with the need for a cause for withdrawal

of the pleasure. In other words, “at pleasure”

doctrine enables the removal of a person holding

office at the pleasure of an authority, summarily,

without any obligation to give any notice or hearing

to the person removed, and without any obligation

to assign any reasons or disclose any cause for the

removal, or withdrawal of pleasure. The withdrawal

of pleasure cannot be at the sweet will, whim and

61

Page 62 fancy of the authority, but can only be for valid

reasons.”

61. In fact the ‘pleasure doctrine’ is a Constitutional

necessity, for the reasons that the difficulty in

dismissing those servants whose continuance in office

is detrimental to the State would, in case necessity

arises to prove some offence to the satisfaction of the

court, be such as to seriously impede the working of

public service.

62. There is no dispute with regard to the legal

proposition that illegality, irrationality and

procedural non-compliance are grounds on which

judicial review is permissible. But the question is

as to the ambit of judicial review. This court in

Civil Appeal filed by the respondents challenging

the order of termination passed under Section 18

of the Army Act observed that the order of

termination can be challenged only on the ground

of malafide. It was further observed that it is for

the person alleging malafide to make out a prima

62

Page 63 facie case. For better appreciation, the order

passed by this Court is quoted herein below.

“1. Special leave granted.

2. Heard both sides. According to us, all

that the impugned judgment holds is that an

order passed under Section 18 of the Army

Act can be challenged on the ground of

malafides. This statement of law is

unexceptional. However, it is for the

person who challenges it on the ground of

malafides, to make out a prima facie case

in that behalf. It is only if he discharges

the said burden, that the Government is

called upon to show that it is not passed

in the malafide exercise of its powers.

While doing so, the Government is not

precluded from claiming the privilege in

respect of the material which may be in its

possession and on the basis of which the

order is passed. The Government may also

choose to show the material only to the

court. With regard to the pleadings in

respect of the challenge to the order on

the ground of malafides, no particular

formula can be laid down. The pleadings

will depend upon the facts of each case.

3.The appellants are permitted to withdraw from

the appeal-memo, pp. 221 to 232 which according

to the learned Solicitor General have been annexed

to the memo inadvertently.

4.The appeals are disposed of accordingly with no

order as to costs.”

63. The Full Bench of the Delhi High Court while

answering the reference has observed in

paragraphs 37 and 38 which is quoted hereunder:-

63

Page 64 “37. Undoubtedly, the power under Section 18 cannot

be ordinarily invoked for dealing with cases of

misconduct and the other provisions in the Army Act

dealing with the various kinds of misconduct have to be

invoked for dealing with such cases. This power under

Section 18 must be used sparingly only when it is

expedient to deal with such cases under the other

provisions of the Army Act. In view of the sensitive

nature of cases involving security of State that may

come up in the case of armed forces it cannot be said

that in no case of misconduct section 18 can be

invoked. There may be cases where security of State is

involved and it may not be expedient to continue with

the inquiry provided under the Army Act for dealing

with misconduct. It appears that it is specifically for

this reason that section 18 has been incorporated in

the Army Act despite the fact that Article 310 of the

Constitution already provided that tenure of an Army

personnel would be at the pleasure of the President.

This is a power given to the Supreme Commander of

the Armed Forces, i.e. the President of India to be

invoked in such cases where inquiry in other form is not

advisable and is inexpedient. This power is similar to

second proviso (a), (b) & (c) of Article 311 (2) which

provides for dispensing with the inquiry in certain cases

even in the case of civil service. The safeguard

provided for a government servant by clause (2) of

Article 311 is taken away when second proviso to

Article 311(2) becomes applicable. The Supreme Court

in Tulsi Ram Patel's case (supra) observed that "the

second proviso has been mentioned in the Constitution

as a matter of public policy and in public interest for

public good." The Supreme Court further observed that

much as it may seem harsh and oppressive to a

government servant, the court must repel the

temptation to be carried away by feelings of

commiseration and sympathy in such cases. Therefore,

even if an order under Section 18 for removing a

defense personnel for misconduct is passed if it is

found that there were sufficient reasons for resorting to

Section 18, the same would not be open to challenge

on merits. The Supreme Court in Chief of Army Staff &

Anr. v. Major Dharam Pal Kukrety, 1985 CriLJ 913, has

held that even after Court Martial proceedings had

been concluded, the finding of the general court martial

having not been confirmed by the Chief of Army Staff,

further retention of the Army personnel being

undesirable, the Chief of Army Staff could resort to Rule

64

Page 65 14, indicating thereby that even after resorting to court

martial proceedings if it is found inexpedient to

continue with the Court Martial proceedings it was open

to resort to proceedings under Section 19 of the Army

Act. The Supreme Court observed:

"The crucial question, therefore, is whether

the Central Government or the Chief of the

Army Staff can have resort to Rule 14 of the

Army Rules. Though it is open to the Central

Government or the Chief of the Army Staff to

have recourse to that rule in the first

instance without directing trial by a court-

martial of the concerned officer, there is no

provision in the Army Act or in Rule 14 or

any of the other rules of the Army Rules

which prohibits the Central Government or

the Chief of the Army Staff from resorting in

such a case to Rule 14. Can it, however, be

said that in such a case a trial by a court-

martial is inexpedient or impracticable? The

Shorter Oxford English Dictionary, Third

Edition, defines the word 'inexpedient' as

meaning "not expedient; disadvantageous in

the circumstances, inadvisable, impolite".

The same dictionary defines 'expedient'

inter alias as meaning "advantageous; fit,

proper, or suitable to the circumstances of

the case". Webster's Third New International

Dictionary also defines the term 'expedient'

inter alias as meaning 'characterized by

suitability, practicality, and efficiency in

achieving a particular end; fit, proper or

advantageous under the circumstances."

38. That being the position even after resorting to court

martial proceedings if it is found inexpedient to

continue with the same it is always open to the

respondent to resort to either section 18 or 19 of the

Army Act.”

65

Page 66 64. Indisputably, defence personnel fall under the

category where President has absolute pleasure to

discontinue the services. Further in our considered

opinion as far as security is concerned, the

safeguard available to civil servants under Article

311 is not available to defence personnel as

judicial review is very limited. In cases where

continuance of Army officers in service is not

practicable for security purposes and there is loss

of confidence and potential risk to the security

issue then such officers can be removed under the

pleasure doctrine. As a matter of fact, Section 18

of the Army Act is in consonance with the

constitutional powers conferred on the President

empowering the President to terminate the

services on the basis of material brought to his

notice. In such cases, the Army officers are not

entitled to claim an opportunity of hearing. In our

considered opinion the pleasure doctrine can be

invoked by the President at any stage of enquiry

on being satisfied that continuance of any officer is

66

Page 67 not in the interest of and security of the State. It is

therefore not a camouflage as urged by the

respondents.

65. The next question that arises for consideration is

as to whether the order of dismissal of the earlier

writ petitions and confirmation of the same by this

court amounts to “Doctrine of Merger” and

operates as res judicata against the present appeals. As discussed

above, the services of the present respondents along with other

permanent commissioned officers of the Indian Army were terminated,

since they were found suspected to be involved in espionage activities.

Aggrieved by the termination order, the present respondents, except

Major R.K. Midha and Major N.R. Ajwani, filed writ petitions being

C.W.P. Nos. 418, 419, 421, 424 and 425 of 1980 before the Delhi High

Court. These respondents challenged the said termination order as being

illegal and malafide. The High Court vide order dated 21.4.1980

dismissed the writ petitions. The Order dated 21.4.1980 reads as under:-

“Dismissal from service is under Section 18 of

the Army act which is complimentary to Article

310 of the Constitution. This means that the

67

Page 68 Officer held the tenure during the pleasure of

the President. It has been contended that it

was not in accordance with the provisions of

the Act and that due procedure for dismissal

for misconduct has not been followed. The

impugned order does not say whether the

dismissal is for misconduct or otherwise. It only

sets out the pleasure doctrine. In this view of

the matter, no case made out for interference.

Dismissed.”

66. Respondents then preferred special leave petitions

against the aforesaid order dated 21.4.1980 being

SLP Nos. 7225 and 7233 of 1980. A three-Judge

Bench of this Court dismissed the special leave

petition by order dated 1.9.1980. In the year

1982, the show cause notices dated 10.5.1982

were issued to the officers whose services were

terminated informing them that their services were

not considered satisfactory by the Pensionary

Authority and, therefore, why not 5% of the

gratuity or pension be deducted. On receipt of the

said show cause notices, eight of the officers,

whose services were terminated initiated the

second round of litigation by filing writ petitions

being C.W.P Nos. 1643-1646 of 1982, 1777 of

68

Page 69 1982, 804 of 1982, 1666 of 1982 praying not only

to quash the show cause notices, but also to quash

the order of termination of their services. All those

writ petitions were finally heard and came to be

dismissed by the Delhi High Court vide judgment

dated 22.3.1985. Aggrieved by the said order, the

respondents filed Letters Patent Appeal before the

Delhi High Court. The Division Bench of the High

Court after hearing the appeal formulated

questions of law and referred the same to the Full

Bench by order dated 15.5.1991. The question of

law framed by the Division Bench was “whether

the order of termination passed by and in the

name of President under Section 18 of the Army

Act read with Article 310 of the Constitution

invoking doctrine of pleasure of the President be

challenged on the ground that it is camouflage and

as such is violative of principles of natural justice

and the fundamental rights guaranteed under

Article 14 of the Constitution?”.

69

Page 70 67.From the above, it is clear that the Union of India

has been consistently contesting these petitions

and this Court has found substance in the

argument of the appellants that the High Court

while delivering the judgment dated 21.12.2000

overlooked this important legal aspect of finality

coupled with the doctrine o f res judicata. In our considered

opinion, this aspect cannot be ignored and the issue of fact cannot be re-

opened in the instant case as well as has been done under the impugned

judgment by relying on certain material which the High Court described

to have been fraudulently withheld from the courts. In our opinion, fraud

is not a term or ornament nor can it be presumed to exist on the basis of

a mere inference on some alleged material that is stated to have been

discovered later on. The discovery of a reinvestigated fact could have

been a ground of review in the same proceedings, but the same cannot be

in our opinion made the basis for re-opening the issue through a fresh

round of litigation. A fresh writ petition or Letters Patent Appeal

which is in continuation of a writ petition cannot be filed collaterally

to set aside the judgment of the same High Court rendered in earlier

round of litigation upholding the termination order. In our view, the

70

Page 71 High Court has committed a manifest error by not lawfully defining the

scope of the fresh round of litigation on the principles o f res judicata and

doctrine of finality. To establish fraud, it is the material available which

may lead to the conclusion that the failure to produce the material was

deliberate or suppressed or even otherwise occasioned a failure of

justice. This also, can be attempted if legally permissible only in the said

proceedings and not in a collateral challenge raised after the matter has

been finally decided in the first round of litigation. It is to be noticed

that the judgment which had become final in 1980 also included writ

petition no.418 of 1980 filed by the respondent S.P. Sharma. Once, this

Court had put a seal to the said litigation vide judgment dated 1.9.1980

then a second round of litigation by the same respondents including S.P.

Sharma in writ petition no. 1643 of 1982 was misplaced.

68. The very genesis of an identical challenge relating

to the same proceedings of termination on the

pretext of a 5% cut in terminal benefits was

impermissible apart from the attraction of the

principle of merger. This aspect of finality,

therefore, cannot be disturbed through a collateral

challenge.

71

Page 72 69. In Naresh Shridhar Mirajkar vs. State of Maharashtra & Anr.

AIR 1967 SC 1, this Court by a majority decision laid down the law that

when a Judge deals with the matter brought before him for his

adjudication, he first decides the questions of fact on which the parties

are at issue, and then applies the relevant law to the said facts. Whether

the findings of fact recorded by the Judge are right or wrong, and

whether the conclusion of law drawn by him suffers from any infirmity,

can be considered and decided if the party aggrieved by the decision of

the Judge takes up the matter before the appellate court.

70. A decision rendered by a competent court cannot

be challenged in collateral proceedings for the

reason that if it is permitted to do so there would

be "confusion and chaos and the finality of

proceedings would cease to have any meaning".

71.In the case of Mohd. Aslam vs. Union of India , AIR

1996 SC 1611, a writ petition under Article 32 of the

Constitution was filed seeking reconsideration of the

72

Page 73 judgment rendered by this Court on the ground that the

said judgment is incorrect. Rejecting the prayer, this

Court held that Article 32 of the Constitution is not

available to assail the correctness of the decision on

merit or to claim its reconsideration.

72.In the case of Babu Singh Bains etc. versus Union

of India and others etc., AIR 1997 SC 116, this Court

reiterated the settled principal of law that once an

order passed on merit by this Court exercising the

power under Article 136 of the Constitution has become

final no writ petition under Article 32 of the Constitution

on the self-same issue is maintainable. The principle of

constructive res judicata stands fast in his way in his

way to raise the same contention once over.

73.In Khoday Distilleries Limited & Anr. vs. The

Registrar General, Supreme Court of India, (1996)

3 SCC 114, this Court re-iterated the view as under:

"In a case like the present, where in

substance the challenge is to the

73

Page 74 correctness of a decision on merits after

it has become final, there can be no

question of invoking Article 32 of the

Constitution to claim reconsideration of

the decision on the basis of its effect in

accordance with law. Frequent resort to

the decision in Antulay (AIR 1988 SC

1531) in such situations is wholly

misconceived and impels us to

emphasis this fact."

74. In M. Nagabhushana vs. State of Karnataka & Ors., AIR 2011 SC

1113, this Court held that doctrine of res-judicata was not a technical

doctrine but a fundamental principle which sustains the rule of law in

ensuring finality in litigation. The main object of the doctrine is to

promote a fair administration of justice and to prevent abuse of process

of the court on the issues which have become final between the parties.

The doctrine was based on two age old principles, namely, 'interest

reipublicae ut sit finis litium' which means that it is in the interest of the

State that there should be an end to litigation and the other principle is

'nemo debet bis vexari si constat curiae quod sit pro una et eadem causa'

meaning thereby that no one ought to be vexed twice in a litigation if it

appears to the Court that it is for one and the same cause.

75. Thus, the principle of finality of litigation is based

on a sound firm principle of public policy. In the

74

Page 75 absence of such a principle great oppression might

result under the colour and pretence of law

inasmuch as there will be no end to litigation. The

doctrine of res-judicata has been evolved to prevent such an anarchy.

76. In a country governed by the rule of law, finality

of judgment is absolutely imperative and great

sanctity is attached to the finality of the judgment

and it is not permissible for the parties to reopen

the concluded judgments of the court as it would

not only tantamount to merely an abuse of the

process of the court but would have far reaching

adverse affect on the administration of justice. It

would also nullify the doctrine of stare decisis a well

established valuable principle of precedent which cannot be departed

from unless there are compelling circumstances to do so. The judgments

of the court and particularly the Apex Court of a country cannot and

should not be unsettled lightly.

77. Precedent keeps the law predictable and the law

declared by this Court, being the law of the land, is

75

Page 76 binding on all courts/tribunals and authorities in

India in view of Article 141 of the Constitution. The

judicial system "only works if someone is allowed

to have the last word" and the last word so spoken

is accepted and religiously followed. The doctrine

of stare decisis promotes a certainty and consistency in judicial decisions

and this helps in the development of the law. Besides providing

guidelines for individuals as to what would be the consequences if he

chooses the legal action, the doctrine promotes confidence of the people

in the system of the judicial administration. Even otherwise it is an

imperative necessity to avoid uncertainty, confusion. Judicial propriety

and decorum demand that the law laid down by the highest Court of the

land must be given effect to.

78. In Rupa Ashok Hurra v. Ashok Hurra & Anr ., AIR 2002 SC 1771,

this Court dealt with the issue and held that reconsideration of a

judgment of this Court which has attained finality is not normally

permissible. A decision upon a question of law rendered by this Court

was conclusive and would bind the court in subsequent cases. The court

cannot sit in appeal against its own judgment.

76

Page 77 79. In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of

Greater Bombay, AIR 1974 SC 2009, this Court held as under:

"At the same time, it has to be borne in mind that

certainty and continuity are essential ingredients of the

rule of law. Certainty in law would be considerably

eroded and suffer a serious setback if the highest court of

the land readily overrules the view expressed by it in

earlier cases, even though that view has held the field for

a number of years. In quite a number of cases which

come up before this Court, two views are possible, and

simply because the Court considers that the view not

taken by the Court in the earlier case was a better view of

the matter would not justify' the overruling of the view.

The law laid down by this Court is binding upon all

courts in the country under Article 141 of the

Constitution, and numerous cases all over the country are

decided in accordance with the view taken by this Court.

Many people arrange their affairs and large number of

transactions also take place on the faith of the

correctness of the view taken by this Court. It would

create uncertainty, instability and confusion if the law

propounded by this Court on the basis of which

numerous cases have been decided and many

transactions have taken place is held to be not the

correct law. "

Thus, in view of above, it can be held that doctrine

of finality has to be applied in a strict legal sense.

80. While dealing with the issue this court in Ambika

Prasad Mishra v. State of U.P. & Anr., AIR 1980 SC 1762, held as

under:

77

Page 78 "6. It is wise to remember that fatal flaws silenced by earlier

rulings cannot survive after death because a decision

does not lose its authority 'merely because it was badly

argued, inadequately considered and fallaciously

reasoned'".

81. The view has been expressed by a three-Judge Bench of this Court in

these very proceedings while dismissing the special leave petitions of

Subhash Juneja and Harish Lal Singh vide order dated 23.4.2003. This

court applied the doctrine of finality of judgment and res-judicata and

refused to reopen these very proceedings.

82.Mrs. Kiran Suri, learned counsel appearing for the

respondent, put heavy reliance on a decision of this

Court in the case of Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai

N.B. Jeejeebhoy, (1970)1 SCC 613, for the proposition that question relating to

the jurisdiction of a court cannot be deemed to have been finally determined by an

erroneous decision of the court. Further by an erroneous decision if the court

resumes jurisdiction which it does not possess under the Statute, the question

cannot operate as res judicata between the same parties whether the cause of

action in the subsequent litigation is same or otherwise. In our opinion, the

aforesaid decision is of no help to the respondent for the simple reason that the

78

Page 79 facts and the law involved in the instant case and the earlier round of litigation are

the same. In para 5 of the aforesaid judgment, this Court has laid down the

principle, which reads as under:-

“5. But the doctrine of res judicata belongs to the

domain of procedure: it cannot be exalted to the

status of a legislative direction between the

parties so as to determine the question relating to

the interpretation of enactment affecting the

jurisdiction of a Court finally between them, even

though no question of fact or mixed question of

law and fact and relating to the right in dispute

between the parties has been determined

thereby. A decision of a competent Court on a

matter in issue may be res judicata in another

proceeding between the same parties: the

“matter in issue” may be an issue of fact, an issue

of law, or one of mixed law and fact. An issue of

fact or an issue of mixed law and fact decided by

a competent Court is finally determined between

the parties and cannot be re-opened between

them in another proceeding. The previous

decision on a matter in issue alone is res judicata:

the reasons for the decision are not res judicata. A

matter in issue between the parties is the right

claimed by one party and denied by the other,

and the claim of right from its very nature

depends upon proof of facts and application of the

relevant law thereto. A pure question of law

unrelated to facts which give rise to a right,

cannot be deemed to be a matter in issue. When

it is said that a previous decision is res judicata, it

is meant that the right claimed has been

adjudicated upon and cannot again be placed in

contest between the same parties. A previous

decision of a competent Court on facts which are

the foundation of the right and the relevant law

applicable to the determination of the transaction

which is the source of the right is res judicata. A

previous decision on a matter in issue is a

composite decision: the decision on law cannot be

dissociated from the decision on facts on which

79

Page 80 the right is founded. A decision on an issue of law

will be as res judicata in a subsequent proceeding

between the same parties, if the cause of action

of the subsequent proceeding be the same as in

the previous proceeding, but not when the cause

of action is different, nor when the law has since

the earlier decision been altered by a competent

authority, nor when the decision relates to the

jurisdiction of the Court to try the earlier

proceeding, nor when the earlier decision declares

valid a transaction which is prohibited by law.

83. In the case arising out of these very proceedings reported in

Union of India & Ors. v. Ranbir Singh Rathaur & Ors., (2006)

11 SCC 696, this Court held:

(a)That review of the earlier orders passed by this court

was "impermissible": approach of the High Court of

reopening the case was "erroneous"; the issue of

maintainability of the petitions was of paramount

importance:

(b)The finding recorded by the High Court that

the entire record was not produced by the

Union of India was not factually correct;

(c)To say that "justice stood at the higher

pedestal" then the finality of litigation was not

an answer enabling the court to reopen a finally

decided case;

(d) Persons behind the false implication were

not impleaded as parties; and

(e) Newspaper reports/statement made by any

officer could not be considered as evidence.

80

Page 81 84. Violation of Fundamental Rights guaranteed under

the Constitution have to be protected, but at the

same time, it is the duty of the court to ensure

that the decisions rendered by the court are not

overturned frequently, that too, when challenged

collaterally as that was directly affecting the basic

structure of the Constitution incorporating the

power of judicial review of this Court. There is no

doubt that this Court has an extensive power to

correct an error or to review its decision but that

cannot be done at the cost of doctrine of finality.

An issue of law can be overruled later on, but a

question of fact or, as in the present case, the

dispute with regard to the termination of services

cannot be reopened once it has been finally sealed

in proceedings inter-se between the parties up to this Court way

back in 1980.

85.The term ‘dismissal’ in the original order was

substituted by the term ‘termination’ issuing the

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Page 82 corrigendum to ratify a mistake committed while

issuing the order. In fact, the competent authority

had taken a decision only to terminate, and

therefore it was found necessary to issue the

corrigendum. However, in view of such substitution

of word ‘dismissal’ by the term ‘termination’, does

not tilt the balance in favour of the respondents.

More so, as pointed out by Mr. Paras Kuhad,

learned ASG that the proposed 5% deduction had

been withdrawn, and therefore the issue did not

survive.

86.Analysing entire facts of the case and the material

produced in Court and upon an exhaustive

consideration of the matter, we are of the definite

opinion that the power of pleasure exercised by

the President in terminating the services of the

respondents does not suffer from any illegality,

bias or malafide or based on any other extraneous

ground, and the same cannot be challenged on the

ground that it is a camouflage. As discussed

above, the onus lay on the respondent-officers who

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Page 83 alleged malafides. No credible evidence or

material produced before the Court impels us to

come to the conclusion that the order of

termination is baseless or malafide.

87. For the reasons aforesaid, these appeals are

allowed and the judgment and order passed by the

Delhi High Court is set aside. Ordered accordingly.

No costs.

…………………………… .J.

(Dr. B.S.

Chauhan)

…………………………… .J.

(J.

Chelameswar )

…………………………… .J.

(M.Y. Eqbal)

New Delhi,

March 6, 2014.

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