Mekha Ram VS State of Rajasthan

Mekha Ram VS State of Rajasthan - Supreme Court Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2229-2234 OF 2022
Mekha Ram and Others Etc. Etc. …Appellants
Versus
State of Rajasthan and Others Etc.Etc. …Respondents
WITH
CIVIL APPEAL NOS. 2235-2249 OF 2022
CIVIL APPEAL NOS. 2250-2251 OF 2022
CIVIL APPEAL NO. 2252 OF 2022
CIVIL APPEAL NOS. 2253-2256 OF 2022
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 06.05.2016 passed by the Division Bench of
the High Court of Judicature for Rajasthan, Jaipur Bench Jaipur in D.B.
Special Appeal (Writ) No. 1883/2014 and other connected appeals, by
which the Division Bench of the High Court has allowed the said appeals
and has quashed and set aside the respective judgments and orders
passed by the learned Single Judge of the High Court and held that the
three years Nursing Course by the in-service candidates could not be
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treated as a period on deputation and be treated only on leave whatever
due to the candidates and consequently has reserved the liberty in
favour of the State to recover the excess amount paid to the original writ
petitioners treating the period of training as a period of leave permissible
to him/her in easy equal installments, the original writ petitioners have
preferred the present appeals.
2. That the original writ petitioners are working either as ANM
(Auxiliary Nursing & Midwifery) or Lab Technician, Multi-Purpose Worker,
Accounts Clerk or other similarly situated posts. They are the members
of the Rajasthan Medical & Health Subordinate Service Rules, 1965.
They applied for the course of General Nursing Training which is of three
years duration and is regulated according to the General Nursing
Training Course Rules, 1990 (hereinafter referred to as the ‘Rules
1990’).
2.1 That all the original writ petitioners submitted their applications, in
the prescribed proforma as in-service candidates, seeking admission to
the course of General Nursing as envisaged under Rule 9 of the Rules
1990. That all the in-service candidates were required to be considered
eligible to seek admission provided they fulfilled the criterion for
admission and eligibility under Rule 11 of the Rules 1990. All the original
writ petitioners submitted their applications for seeking study leave
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knowing it fully well that joining three years Nursing Course cannot be
treated on deputation for the in-service candidates. All the original writ
petitioners completed their course or some of them were either doing
their internship or a few, after completion of their internship, filed writ
petitions before the learned Single Judge of the High Court and prayed
that the study leave sanctioned to them by the competent authority may
be treated as on deputation. That the learned Single Judge allowed the
batch of writ petitions with the following directions:
“Looking to the aforesaid, these writ petitions are being disposed of with
the following directions:
1. Respondents are directed to comply with the observations and
expectations of the Hon’ble Apex Court as given in the case of
Sushil Sharma (supra) [State of Rajasthan vs. Sushil Sharma, Civil
Appeal No. 5283/2001, dated 10.08.2001], thereby, they will not
allow benefit of deputation allowance to anyone in violation of rule
112 read with rule 97 of the RSR. This is irrespective of the
categories of the post in the respondent department;
2. If there is shortage of Junior Specialist, endeavour should be to
amend the Rules so that direct recruitment can be made, as
presently aforesaid post is filled up by promotion only. However, on
the pretext of shortage of Junior Specialist, respondents cannot be
allowed to violate or circumvent the rules. This is more so when it
goes even against the observations and expectations of the Hon’ble
Apex Court in the case of Sushil Sharma (supra). The respondents
will accordingly allow study leave and benefit thereupon as per rule
111 and 112 read with rule 97 of the RSR;
3. Since for many posts, benefit of study leave with full salary has been
allowed, hence, to avoid discrimination, respondents have agreed to
extend similar benefit to the petitioners also, however, arrangement
aforesaid would be limited to those who have already joined the
training course of GNM and now onwards nobody would be allowed
study leave benefit in violation of the provision of RSR;
4. Compliance of the aforesaid order may be made within a period of
one month from the date of receipt of copy of this order.”
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2.2 That thereafter the State preferred intra-court appeals before the
Division Bench. The Division Bench permitted the State to file review
applications. The State filed review applications before the learned
Single Judge, which came to be dismissed. Subsequently, the State
again filed intra-court appeals before the Division Bench against the
judgment(s) and order(s) passed by the learned Single Judge, allowing
the writ petitions and holding that the original writ petitioners are entitled
to treat their period of training as the period on leave permissible to
him/her. By the impugned common judgment and order, the Division
Bench of the High Court has allowed the intra-court appeals and while
approving the earlier decision of the learned Single Judge has held that
the period spent on training course by the in-service candidates shall not
be treated as a period on deputation and be treated only on leave
whatever due to the candidates. That as during the pendency of the
intra-court appeals, under threat of the contempt of the judgment and
order passed by the learned Single Judge, the original writ petitioners
were paid the amount and holding that the period of training is to be
treated as period on leave permissible to him/her, the Division Bench
also directed that the State shall be at liberty to recover the excess
amount paid to the original writ petitioners during their period of training
as a period of leave permissible to him/her in easy equal installments.
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2.3 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the Division Bench of the High Court
reserving liberty in favour of the State to recover the excess amount
paid, the original writ petitioners have preferred the present appeals.
3. At the outset, it is required to be noted that this Court issued notice
in the present special leave petitions/appeals limited to the aspect of the
recovery of the amounts from the original writ petitioners, as directed in
the impugned judgment and in the meanwhile directed stay of recovery.
In that view of the matter, the only issue which is now required to be
considered is, whether there shall be recovery of the amounts from the
original writ petitioners, as directed in the impugned judgment and order
passed by the Division Bench of the High Court.
4. Shri R.K. Singh, learned Advocate appearing on behalf of the
original writ petitioners has heavily relied upon the decision of this Court
in the case of State of Punjab v. Rafiq Masih, reported in (2015) 4 SCC
334. Relying upon the aforesaid decision, it is vehemently submitted that
as observed and held by this Court, recovery from the employees
belonging to Class III and Class IV service (Group C and Group D
service) is impermissible.
4.1 Learned counsel appearing on behalf of the original writ petitioners
has prayed and submitted that as the respective original writ petitioners
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are serving on Class III and Class IV posts, the amount already paid in
excess may not be recovered by the State. In the alternative, it is prayed
that the original writ petitioners may be given reasonable monthly
installments to repay the amount which is paid in excess to them.
5. Dr. Manish Singhvi, learned Senior Advocate appearing on behalf
of the State has submitted that the decision of this Court in the case of
Rafiq Masih (supra), which has been relied upon by the learned counsel
appearing on behalf of the original writ petitioners, is not applicable to the
facts of the case on hand. It is submitted that in the aforesaid case the
amount was paid to the employees mistakenly by the State/State
authorities which was sought to be recovered and under those
circumstances this Court observed and held that the recovery of the
excess amount paid is impermissible in case of employees belonging to
Class III and Class IV service (Group C and Group D service). It is
submitted that in the present case, it is not the case where the amount in
excess was paid mistakenly by the State or the State authorities. Rather
the excess amount was paid pursuant to the order passed by the learned
Single Judge, under the threat of the contempt proceedings, which order
has now been set aside by the Division Bench. It is submitted that once
the order passed by the learned Single Judge, pursuant to which the
original writ petitioners were paid the amount, came to be set aside by
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the Division Bench, the necessary consequences shall follow and on the
principle of restitution, the State shall be entitled to recover the amount
paid in excess.
5.1 Reliance is placed on the decision of this Court in the case of
Indore Development Authority v. Manohar Lal, reported in (2020) 8 SCC
129 (paragraphs 334 to 336) and the decision of this Court in the case of
South Eastern Coalfields Ltd. v. State of M.P., reported in (2003) 8 SCC
648 (paragraphs 25 to 30), on the principle of restitution.
5.2 Making the above submissions and relying upon the aforesaid
decisions, more particularly the decisions of this Court on the principle of
restitution, learned Senior Advocate appearing on behalf of the State has
submitted that in the facts and circumstances of the case, the Division
Bench of the High Court has not committed any error in permitting the
State to recover the excess amount paid. However, the learned Senior
Advocate has fairly stated that the original writ petitioners may be given
reasonable installments, which even the Division Bench has observed in
the impugned judgment.
6. We have heard the learned counsel for the respective parties at
length.
At the outset, it is required to be noted that in the present case the
amount paid in excess to the appellants was not due to any mistake on
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the part of the State/State authorities. The excess amount has been paid
pursuant to the order passed by the learned Single Judge, which has
been subsequently set aside by the Division Bench. Therefore, on
quashing and setting aside the judgment and order passed by the
learned Single Judge under which the original writ petitioners were paid
the excess amount, the necessary consequences must follow.
Therefore, considering the fact that the amount already paid in excess
was not paid by the State mistakenly but was paid pursuant to the order
passed by the learned Single Judge which has been set aside
subsequently, the decision of this Court in the case of Rafiq Masih
(Supra) shall not be applicable. The said decision of this Court may be
applicable only in a case where the amount has been paid by the
State/State Authorities mistakenly and it is found that there was no fault
and/or any misrepresentation on the part of the employee and that the
concerned employee is not found responsible for such excess amount
paid mistakenly. The amount paid in excess pursuant to the order
passed by the learned Single Judge which has been set aside by the
Division Bench has to be refunded and/or returned by the original writ
petitioners which the State is entitled to recover from them on the
principle of restitution.
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6.1 At this stage, the decision of this Court in the case of Indore
Development Authority (supra) on principle of restitution is required to be
referred to. In the said decision, a Constitution Bench of this Court after
considering the earlier decision in the case of South Eastern Coalfields
(supra) and other decisions on the principle of restitution, has observed
and held in paragraphs 335 to 336 as under:
In re : Principle of restitution
“335. The principle of restitution is founded on the ideal of doing complete
justice at the end of litigation, and parties have to be placed in the same
position but for the litigation and interim order, if any, passed in the matter.
In South Eastern Coalfields Ltd. v. State of M.P. [South Eastern Coalfields
Ltd. v. State of M.P., (2003) 8 SCC 648], it was held that no party could
take advantage of litigation. It has to disgorge the advantage gained due
to delay in case lis is lost. The interim order passed by the court merges
into a final decision. The validity of an interim order, passed in favour of a
party, stands reversed in the event of a final order going against the party
successful at the interim stage. Section 144 of the Code of Civil Procedure
is not the fountain source of restitution. It is rather a statutory recognition
of the rule of justice, equity and fair play. The court has inherent
jurisdiction to order restitution so as to do complete justice. This is also on
the principle that a wrong order should not be perpetuated by keeping it
alive and respecting it. In exercise of such power, the courts have applied
the principle of restitution to myriad situations not falling within the terms of
Section 144 CPC. What attracts applicability of restitution is not the act of
the court being wrongful or mistake or an error committed by the court; the
test is whether, on account of an act of the party persuading the court to
pass an order held at the end as not sustainable, resulting in one party
gaining an advantage which it would not have otherwise earned, or the
other party having suffered an impoverishment, restitution has to be made.
Litigation cannot be permitted to be a productive industry. Litigation cannot
be reduced to gaming where there is an element of chance in every case.
If the concept of restitution is excluded from application to interim orders,
then the litigant would stand to gain by swallowing the benefits yielding out
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of the interim order. This Court observed in South Eastern
Coalfields [South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC
648] thus: (SCC pp. 662-64, paras 26-28)
“26. In our opinion, the principle of restitution takes care of this
submission. The word “restitution” in its etymological sense means
restoring to a party on the modification, variation or reversal of a
decree or order, what has been lost to him in execution of decree or
order of the court or in direct consequence of a decree or order
(see Zafar Khan v. Board of Revenue, U.P. [Zafar Khan v. Board of
Revenue, U.P., 1984 Supp SCC 505] ). In law, the term “restitution” is
used in three senses : (i) return or restoration of some specific thing
to its rightful owner or status; (ii) compensation for benefits derived
from a wrong done to another; and (iii) compensation or reparation
for the loss caused to another. (See Black's Law Dictionary, 7th Edn.,
p. 1315). The Law of Contracts by John D. Calamari & Joseph M.
Perillo has been quoted by Black to say that “restitution” is an
ambiguous term, sometimes referring to the disgorging of something
which has been taken and at times referring to compensation for the
injury done:
‘Often, the result under either meaning of the term would be the
same. … Unjust impoverishment, as well as unjust enrichment, is a
ground for restitution. If the defendant is guilty of a non-tortious
misrepresentation, the measure of recovery is not rigid but, as in
other cases of restitution, such factors as relative fault, the agreedupon risks, and the fairness of alternative risk allocations not agreed
upon and not attributable to the fault of either party need to be
weighed.’
The principle of restitution has been statutorily recognised in Section 144
of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of
a decree being varied, reversed, set aside or modified but also includes an
order on a par with a decree. The scope of the provision is wide enough so
as to include therein almost all the kinds of variation, reversal, setting
aside or modification of a decree or order. The interim order passed by the
court merges into a final decision. The validity of an interim order, passed
in favour of a party, stands reversed in the event of a final decision going
against the party successful at the interim stage. …
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27. … This is also on the principle that a wrong order should not be
perpetuated by keeping it alive and respecting it (A. Arunagiri
Nadar v. S.P. Rathinasami [A. Arunagiri Nadar v. S.P. Rathinasami,
1970 SCC OnLine Mad 63] ). In the exercise of such inherent power,
the courts have applied the principles of restitution to myriad
situations not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is not a rule
confined to an erroneous act of the court; the “act of the court”
embraces within its sweep all such acts as to which the court may
form an opinion in any legal proceedings that the court would not
have so acted had it been correctly apprised of the facts and the law.
… the concept of restitution is excluded from application to interim
orders, then the litigant would stand to gain by swallowing the
benefits yielding out of the interim order even though the battle has
been lost at the end. This cannot be countenanced. We are,
therefore, of the opinion that the successful party finally held entitled
to a relief assessable in terms of money at the end of the litigation, is
entitled to be compensated by award of interest at a suitable
reasonable rate for the period for which the interim order of the court
withholding the release of money had remained in operation.”
(emphasis supplied)
336. In State of Gujarat v. Essar Oil Ltd. [State of Gujarat v. Essar Oil Ltd.,
(2012) 3 SCC 522 : (2012) 2 SCC (Civ) 182] , it was observed that the
principle of restitution is a remedy against unjust enrichment or unjust
benefit. The Court observed : (SCC p. 542, paras 61-62)
“61. The concept of restitution is virtually a common law principle,
and it is a remedy against unjust enrichment or unjust benefit. The
core of the concept lies in the conscience of the court, which
prevents a party from retaining money or some benefit derived from
another, which it has received by way of an erroneous decree of the
court. Such remedy in English Law is generally different from a
remedy in contract or in tort and falls within the third category of
common law remedy, which is called quasi-contract or restitution.
62. If we analyse the concept of restitution, one thing emerges clearly
that the obligation to restitute lies on the person or the authority that
has received unjust enrichment or unjust benefit (see Halsbury's
Laws of England, 4th Edn., Vol. 9, p. 434).”
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In the said decision, it is further observed and held that the
restitution principle recognizes and gives shape to the idea that
advantages secured by a litigant, on account of orders of court, at his
behest, should not be perpetuated.
6.2 In the case of Ouseph Mathai v. M. Abdul Khadir, reported in
(2002) 1 SCC 319, it is observed and held that after the dismissal of the
lis, the party concerned is relegated to the position which existed prior to
the filing of the petition in the court which had granted the stay.
6.3 Even otherwise, no one can be permitted to take the benefit of the
wrong order passed by the court which has been subsequently set aside
by the higher forum/court. As per the settled position of law, no party
should be prejudiced because of the order of the court.
7. Even, Section 144 of the Code of Civil Procedure provides for
restitution. Section 144 of the CPC reads as under:
“144. Application for restitution – (1) Where and insofar as a decree or an
order is varied or reversed in any appeal, revision or other proceeding or is
set aside or modified in any suit instituted for the purpose, the Court which
passed the decree or order shall, on the application of any party entitled in
any benefit by way of restitution or otherwise, cause such restitution to be
made as will, so far as may be, place the parties in the position which they
would have occupied but for such decree or order or such part thereof as
has been varied, reversed, set aside or modified; and, for this purpose, the
Court may make any orders, including orders for the refund of costs and
for the payment of interest, damages, compensation and mesne profits,
which are property consequential on such variation, reversal, setting aside
or modification of the decree or order.
Explanation – For the purposes of sub-section (1) the expression “Court
which passed the decree or order shall be deemed to include,
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(a) Where the decree or order has been varied or reversed in exercise of
appellate or revisional jurisdiction, the Court of first instance;
(b) Where the decree or order has been set aside by a separate suit, the
Court of first instance which passed such decree or order;
(c) Where the Court of first instance has ceased to exist or has ceased to
have jurisdiction to execute it, the Court which, if the suit wherein the
decree or order was passed were instituted at the time of making the
decree or order was passed were instituted at the time of making the
application for restitution under this section, would have jurisdiction to
try such suit.
2. No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application under subsection (1).”
8. In the present case, the order passed by the learned Single Judge
has been set aside by the Division Bench of the High Court and therefore
by applying Section 144 CPC also, the amount paid pursuant to the
order passed by the learned Single Judge which has been set aside by
the Division Bench is required to be refunded/returned by the original writ
petitioners.
Therefore, in the facts and circumstances of the case, narrated
hereinabove, the Division Bench of the High Court is absolutely justified
in reserving liberty in favour of the State to recover the amount paid in
excess to the original writ petitioners. It is required to be noted that even
while reserving liberty to recover the amount paid in excess, the Division
Bench has observed that the same be recovered in easy equal
installments.
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9. In view of the above and for the reasons stated above, the Division
Bench of the High Court has not committed any error in reserving liberty
in favour of the State to recover the amount paid in excess to the original
writ petitioners. However, at the same time, considering the prayer made
on behalf of the original writ petitioners to recover the amount in easy
equal installments, we direct that whatever amount is paid in excess to
the original writ petitioners, pursuant to the order passed by the learned
Single Judge, be recovered from the original writ petitioners in thirty-six
equal monthly installments, to be deducted from their salary commencing
from April, 2022.
10. The instant appeals are accordingly disposed of in the aforesaid
terms. No costs.
………………………………J.
[M.R. SHAH]
NEW DELHI; ………………………………J.
MARCH 29, 2022. [B.V. NAGARATHNA]
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