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SUPREME COURT OF INDIA
(From the High Court of Madhya Pradesh at Gwalior Bench)
K.M. Joseph, S. Ravindra Bhat, JJ.
GWALIOR DEVELOPMENT AUTHORITY GWALIOR – APPELLANT(S)
VERSUS
SUBHASH SAXENA & OTHERS – RESPONDENT(S)
CIVIL APPEAL NO. 1977 OF 2022 (Arising out of S.L.P.(C) No.19956 of 2014) WITH CIVIL APPEAL NO. 1978 OF 2022 (Arising out of SLP(C) No.31203 of 2014) CIVIL APPEAL NO. 1979 OF 2022 (Arising out of SLP(C) No.31205 of 2014) CIVIL APPEAL NO. 1980 OF 2022 (Arising out of SLP(C) No.22137 of 2015) CIVIL APPEAL NO. 1981 OF 2022 (Arising out of SLP(C) No.25303 of 2016)
Decided On : 14-03-2022
Government Contract – Tender – [Section 17 of Registration Act, 1908 and Article 226 of Constitution of India] – Undue favour – Whenever there is such a business/commercial transaction, it is always to be examined on commercial principles where equity has no role to play – In ordinary course of business, as respondent has failed to deposit in terms of tender document, auction was supposed to be cancelled earnest money deserved to be forfeited – No reasonable justification as to what would be reason for undue indulgence being shown to respondent while extending him benefit to deposit instalment by an extended date – Such exercise of power by Authority is a clear abuse of discretion which is not only violative of Article 14 of Constitution, but also smacks of undue favour which is always to be avoided – Since lease deed was to be compulsorily registered under Section 17 of Registration Act, 1908, it was nowhere open to be altered or amended even by High Court in exercise of its jurisdiction under Article 226 of Constitution – Judgment passed by High Court in issuing a Mandamus to execute lease deed in favour of respondent is completely beyond jurisdiction – Impugned Judgment set aside – Appeal allowed.
JUDGMENT
K.M. Joseph, J.
1. Delay condoned in SLP (C) No.25303 of 2016. Leave granted.
2. The five Appeals in question, raise some common issues and they are being disposed of by this common Judgment.
3. Respondent no.1 was appointed as Sub-Engineer in Special Area Development Authority “(SADA)”, Malajkhand by Order dated 24.06.1982. He was promoted as assistant Engineer by order dated 03.11.1987 by SADA w.e.f. 07.09.1987. The State Government, by Order dated 20.12.1988, modified the earlier order dated 12.01.1988 and posted respondent no.1 in Gwalior Development Authority (hereinafter referred to as, ‘the GDA’), Gwalior as Assistant Engineer. He joined in GDA on the basis of letter dated 29.12.1988.
4. It is the case of the State that during the probation period of the first respondent, the first respondent was transferred initially to SADA, Chirmiri, and later on, Order of Transfer was modified to make it a transfer to GDA, Gwalior. On 27.05.1995, State issued instructions to all Development Authorities and SADA that employees, who had been transferred and not yet been absorbed in the Institution, shall be treated as employees of the parent Institution. On 22.06.1995, the State Government notified the abolition of 19 SADAs including Malajkhand and all the assets and liabilities of the abolished SADAs were deemed to have vested with the Municipal Council. The first respondent had made an application on 26.09.1995, before the CEO, GDA for merging his services in the GDA. Advice was sought from the State. By letter dated 09.11.1995, the State clarified that:
BHOPAL DATED 9.11.1995
S.C.No.7022/6706/32/95
The Chief Executive Officer,
Gwalior Development Authority,
Gwalior.
Subject: Regarding merger of the services of Shri S.K.Saxena, Assistant Engineer.
Reference: Your Letter No. GDA/45/4597 dated 5.10.1995
Kindly peruse the aforementioned letter.
Till such time when Shri S.K.Saxena does not give option for going back to the Local Self Government Department, no question arises of sending him back from this department, because of the fact that when notification of abolition of Special Development Authority was issued on 22.06.1995 at that time Shri Saxena was posted in •Gwalior Development Authority. Hence his name shall be included in the joint gradation • list of the Development Authorities and the remaining. SAD As and in such manner Shri Saxena shall be employee of the Housing and Environment Department.
Sd/- Illegible
P.V.SHAMAL DEPUTY SECRETARY GOVERNMENT OF M.P.
HOUSING AND ENVIRONMENT DEPARTMENT”
5. It is the case of the appellants that in exercise of powers under Section 76B of the Madhya Pradesh Nagar Tatagram Nivesh Adhiniyam, 1973 (hereinafter referred to as ‘the Act’), on 01.07.1975, was notified as the date for constitution of the M.P. Development Authority Services. According to the State, the post of Assistant Engineer fell in the State Cadre. By letter dated 31.07.1996, it was the further case of the State that letters were written to SADAs and Development Authorities indicating the principles for determination of seniority in regard to the State Cadre and Local Cadre posts. Inter alia, it was indicated as follows, as regards determination of seniority:
1. In the new service the seniority of the employee in the case of the different posts in the case of direct recruitment or in the cases of regular appointment through promotion shall be determined on the basis of continuous service on the lower post whether it is permanent or temporary but if such appointment has been made for fixed term or for specific term then such period shall not be included while reckoning, seniority. In this regard final decision shall be taken by the screening committee constituted under Rule 66 of the Service Recruitment Rules, 1988.
2. In the year of appointment generally inter-se seniority shall .be determined from the date of appointment and inter-se s
Important PointGovernment Contract – Tender – Whenever there is such a business/commercial transaction, it is always to be examined on commercial principles where equity has no role to play.
Prior service rendered before an inter-state transfer is valid for promotion eligibility, even if seniority is lost, as established by previous court rulings.
Seniority and promotions are cadre-specific; grant of a higher pay scale based on qualification does not amount to substantive promotion or change of cadre status unless specifically provided by recr....
Employees transferred at their own request must forfeit previous seniority and accept the lowest rank in the new department, as stipulated by service regulations.
The State Government had the power to transfer and absorb officials and to determine their seniority under Rule 6 of the Mysore Government Servants (Seniority) Rules, 1957.
The main legal point established is that an initial irregularity in employment can be cured by subsequent promotions, and it would be unjust to deny promotion after an extended period of service. The....
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