2012 Supreme(Kar) 385

High Court of Karnataka
N. KUMAR & H.S. KEMPANNA, JJ.
R. Manjunath & Others
Versus
The State of Karnataka, Rep. By its Secretary Dept. of Personnel And Administrative Reforms Vidhana Soudha & Others
Writ Petition No.15314-15378 & 15739 – 15750 of 2009 (S-KAT) c/w Writ Petition Nos.15955 – 16115 of 2009 Writ Petition Nos.16820 – 16917 of 2009 Writ Petition Nos.17556 – 17728 of 2009 Writ Petition Nos.17729 – 17940 of 2009 Writ Petition Nos.19264 – 19272 & 20095 - 20232 of 2009 Writ Petition Nos.19700 – 19849 of 2009 Writ Petition Nos.23707, 26018 – 26525 & 27432 - 27433 of 2009 Writ Petition Nos.27973 – 27974 of 2009 & 5892 to 5905 of 2010 Writ Petition Nos.29832 – 29839 of 2009
Decided on : 13-07-2012

Headnote:LABOUR & SERVICES - Absorption in service: [N.Kumar & H.S. Kempanna, JJ] Karnataka Civil Services (Absorption of persons appointed on contract basis against backlog vacancies in the category of Assistant Engineers and Junior Engineers) in the Departments of Public Works Engineering, Water Resources and Rural Development and Panchayat Raj (Special) Rules, 2005 - Appointments made under the rules -Petitioners/Contract engineers are the beneficiaries of the appointments made under the rules - Impugned orders passed by the Tribunal that "Special Rules" (Absorption Rules), 2005 is contrary to the provisions of Articles 14 and 16 of the Constitution of India and declared that the appointments made under the "Special Rules" (Absorption Rules), 2005 are illegal null and void - Held, (a) Admittedly, in the instant case, the appointment of these engineers is not made in accordance with the Backlog rules framed for filling up backlog vacancies; (b) These backlog vacancies have been filled up without first computing the number of backlog vacancies, and in an arbitrary and fanciful manner. It is made contrary to the said rules and therefore the said appointments are per se illegal and cannot be regularised. What can be regularised is only an irregular appointment. The appointments made in these cases are illegal appointments. Therefore, an illegal appointee can never be regularised by he State.

        In so far as application of the law laid down in paragraph 53 of the judgment in Secretary, State of Karnataka & ors., vs Umadevi & ors., [2006 AIR SCW 1991 : AIR 2006 SC 1806 : 2006 (4) SCC 1 : 2006 (4) JT 420 : 2006 (4) Scale 197 : 2006-II-LLJ 722 (SC) : 2006 (3) AIR Kar R 320 : ILR 2006 (3) Kar 2607 : 2006 (4) KLJ 29 : 2006 (3) KCCR SN 153] Umadevi’s case is concerned, though these applicants satisfy the condition that they have requisite qualification; they were appointed against a substantial post; from the date of appointment till the date of their absorption, they had completed hardly two to three years service. Even that service is because of concessions made. More than 10 years is the period prescribed for continuous service of work against a sanctioned post. None of these engineers possess the said qualification of ten years of continuous service for regularization. Moreover all these appointments are illegal appointments. In that view of the matter, whether it is absorption or regularization, on both counts, it is contrary to law and it is contrary to the law declared by the Apex Court in Umadevi’s case.

        The Government Orders and the appointments made were not struck down, not on the ground that the Government Orders were legal and the appointments were legal but on the ground it was a stop gap arrangement and the appointment of contract engineers is only for a period of 12 months and the Government gave an undertaking to the Court that they will recruit them according to Backlog Rules. Contrary to the undertaking given to the Tribunal and in utter disregard to the order made by the Tribunal without resorting to the procedure prescribed under the Back log Rules, the Absorption Rules came to be passed absorbing all the persons who were appointed under the Government Orders. Immediately thereafter the said Absorption Rules are challenged before the Tribunal. Now, said Absorption Rules are struck down by the Tribunal. Therefore, the appointment of all these engineers is sub judice on the day the Constitutional Bench Delivered the judgment in Umadevi’s case.

        It is a case where these appointments, regularisation and absorption were under attack from the first day of their appointment which was pending on the day Umadevi’s case was decided. Therefore, the law laid down in Umadevi’s case is applicable in deciding the legality of the appointment of these engineers who are absorbed under the Absorption Rules. Hence, the contention that Umadevi’s case has no application to the facts of the case is not correct.

        The State cannot be permitted to indulge in such illegal acts under the cover of a Legislative device which is nothing but a colourable exercise of such rule making power conferred. It runs counter to Articles 14 and 16 of the Constitution. It is unconstitutional, arbitrary. The human problem which is put forth is only a shield to protect the said unconstitutional law from being attacked. The Court can pierce through the curtains and if the said argument is upheld, it only encourages the State to bypass all Constitutional requirement and the statues governing recruitment to the Government service. Such conduct on the part of the Government cannot be countenanced by the Courts.

        The Government has abused its Constitutional power conferred under Article 162 to deprive meritorious engineers who belong to Scheduled Caste/Scheduled Tribe Classes. They have abused the rule making power to deny equal opportunity to the persons to whom these special rules are framed. When their action was challenged in the Court, to get over the challenge they agreed to the suggestions made by the Tribunal. But, they had no intention of respecting the solemn undertaking given to the Tribunal and the High Court which is evident from their subsequent conduct. Thus, they have demonstrated not only they have no respect for the Constitution and the laws but also to the Tribunal and Courts. They have gone back on the solemn promise made by them to the Tribunal.

        The material on record shows though they had the advice from the Law Department, they preferred to ignore the said sound advice and exercised the power in contravention of the Constitutional provisions in an arbitrary, unreasonable and whimsical manner. This is not what is expected of a responsible Government in a democratic set-up which is expected to treat all its subjects alike. The conduct of the Government and the Orders and the Rules which are impugned in these Writ Petitions are unconstitutional, arbitrary, unreasonable and therefore they are rightly quashed by the Tribunal.

       CONSTITUTION OF INDIA - Article 162: [N. Kumar & H.S. Kempanna, JJ] Executive power of the State - Effect of conflict between an executive instruction and a rule made under Article 309 - Held, Article 162 of the Constitution provides for extension of the executive power of the State to the matters with respect to which the Legislature of the State has power to make laws. The Article, in short, says that the executive power of a State shall be co-extensive with its Legislative power. Under Article 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the Legislature of a State has power to make laws. If there is no Legislation covering the filed of selection of candidates, the State Government would, undoubtedly, be competent to pass executive orders in this regard, Even though the executive power may, in the absence of a Constitutional bar, be exercised in the absence of any Legislation to support such action, it cannot be so exercised as to contravene any law relating to the matter or Rules having the force of law. The Executive has the power to make any regulation which would have the effect of a law so long as it does not contravene any Legislation already covering the field. Article 162 of the Constitution cannot prevail over a statute or statutory Rules framed under the proviso to Article 309. In case of any conflict between an executive instruction and a Rule made under Article 309, the latter shall prevail. Therefore, when an executive order is called in question, while exercising the power of judicial review, the Court is required to see whether the Government has departed from such rule and if so, the action of the Government is liable to be struck down. Therefore, when the field was governed by the Rules providing for recruitment, the question of the State exercising its power under Article 162 of the Constitution would not arise. The executive power of the State under Article 162 is co-extensive with that of Legislative power of the States. Therefore, it is competent for the State Government to regulate recruitment and conditions of service relating to the service under them in exercise of executive power, in the absence of Legislation or statutory Rules framed under proviso to Article 309 of the Constitution. But, once the field is occupied either by legislation or by statutory Rules it is not open to the executive to act contrary to or ignoring the statutory provisions. In the instant case, there is Legislation as well as the statutory Rules to regulate recruitment and conditions of service relating to the service under them and also to fill up Backlog vacancies. Therefore, the Government Order issued under the purported exercise of the executive power under Article 162 of the Constitution is void ab initio. Consequently, the appointment order on contract basis under such void order is also void ab initio. It is not a case of irregular appointment. It is a case of illegal appointment, an appointment with out the authority of law and therefore an appointment which is void ab initio.

       LABOUR & SERVICES - Absorption in service: [N.Kumar & H.S. Kempanna, JJ Whether persons appointed for a temporary period on daily wages or on contract basis can be absorbed? Held, Held, Absorption pre-supposes that the person absorbed is recruited to service in a legal manner. When he is absorbed it is not a fresh appointment. Absorption ensures continuity without intermission. The person absorbed must be holding a permanent post in service in his own right by virtue of either recruitment or promotion to the post. The consequence emanating from such absorption is continuity in service without any break. Service rendered under the old post unites with the service under the new post, which excludes the concept of termination of previous service and the commencement of service under the new post. The thread which connects the old employment from new employment is the Legality of employment. If this link is missing there cannot be absorption. Normally the absorption is resorted to after a transfer or deputation. The absorbed should be treated as having been transferred or deputed from one post to another, so that there may be no break in their service- Therefore, the person who is absorbed should beholding an equivalent valid post in service. By absorption his appointment to the post cannot be validated for the first time. A person illegally appointed cannot be absorbed into service. Absorption cannot be resorted to regularize an illegal appointment. Absorption is not a mode of recruitment to issue fresh appointment to persons who are appointed for a temporary period on daily wages or an contract basis.

       LABOUR & SERVICES - Appointments: [N. Kumar & H.S. Kempanna, JJ] Appointment by contract - Karnataka Civil Services (General Recruitment ) Rules, 1977, Rule 15 - Power to make appointment is conferred on Government - Said power was not delegated to Chief Engineer who made contract appointments - Held, Appointment of contract Engineers by person who is not authorized to appoint, renders his appointment illegal from inception which is non est in the eye of law and it cannot be sanctified at a later stage in any manner. It cannot be construed as direct recruitment, which is a condition precedent for conferring permanency on such appointment.

       LABOUR & SERVICES - Precedent : [N. Kumar & H.S. Kempanna, JJ] Applicability of Law declared by the Supreme Court in Secretary, State of Karnataka & ors., vs Umadevi & ors., [2006 AIR SCW 1991 : AIR 2006 SC 1806 : 2006 (4) SCC 1 : 2006 (4) JT 420 : 2006 (4) Scale 197 : 2006-II-LLJ 722 (SC) : 2006 (3) AIR Kar R 320 : ILR 2006 (3) Kar 2607 : 2006 (4) KLJ 29 : 2006 (3) KCCR SN 153] - Conditions to be fulfilled - Held, The explanation carved out by the Apex Court in Umadevi’s case is applicable only to cases where a person should have been appointed temporarily to work against a sanctioned post;-Such a person should possess the required qualification prescribed under law to hold the said post; Such a person should have continued to hold the said post uninterruptedly for a period of 10 years or more; Such a continuous service should have been rendered without the aid of or under the cover of order of the Courts or the Tribunals. Conditions stipulated in (i) to (iv) should have been fulfilled anterior to the pronouncement of the judgment in Umadevi’s case i.e., 10th April, 2006. It has no prospective application. The appointment should be only irregular and not illegal. Only in cases where the aforesaid conditions are fulfilled, as "one time" measure the Government or the instrumentalities of the State could regularise such irregular appointments. It is manifestly made clear that the regularisation can be only of irregular appointments and not illegal appointments. If the appointment is illegal at the inception, even if a person is in continuous service for more than 10 years, possesses the prescribed qualification and is working against a sanctioned post, regularisation is not permissible. The said benefit is extended only to irregular appointments.

       LABOUR & SERVICES - Public Employment: [N.Kumar & H.S. Kempanna, JJ] Necessity as to adherence to the rule of equality in public employment - Held, Any public employment has to be in terms of the Constitutional scheme. Adherence to the rule of equality in public employment is a basic feature of our Constitution. Regular appointment must be the rule. A regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up. The appointment should be in terms of relevant rules and after a proper competition among the qualified persons. Otherwise, such appointment would not confer any right on the appointee. If a contractual appointment is made, the appointment comes to an end at the end of the contract. The Government or the instrumentality of the State cannot confer any permanency of such employment either by way of regularisation or by way of absorption. If it were an engagement or appointment on daily wages or causal basis, the same would come to an end when it is discontinued-A temporary employee could not claim to be made permanent on the expiry of his term of appointment. Merely because a temporary employee or a casual wage worker is continued for a time being beyond the term of his appointments, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength on such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. Regularisation is not a mode of appointment. Regularisation can be only of irregular appointment. Regularisation of an illegal appointment is not permissible in law. It is not permissible in law, to confer permanence on the employee, whose appointment is illegal. The Government or the instrumentality of the State cannot regularise the appointment made contrary to the course of selection as envisaged by the relevant rules. The High Court acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularisation or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme. There should be no further by-passing of the Constitutional requirement and regularisation or making permanent those not duly appointed as per the Constitutional scheme.

       LABOUR & SERVICES - Recruitment: [N. Kumar & H.S. Kempanna, JJ] Karnataka Civil Services Act, 1978, Sections 3(2) (a), 3(1) & 8 & Karnataka Civil Services (Unfilled Vacancies Reserved for Persons Belonging to SC/ST) (Special Recruitment) Rules, 2001, Rule 6 - Prescribed age was 18-40 years - Two groups formed viz, 18-29 years and 29-40 years - Persons who fell under category of 29-40 are to be appointed in first instance - Only when sufficient number of persons are not available in that group, appointment has to be made between age group of 18-29 - Two groups formed viz, 18-29 years and 29-40 years-Government Order introducing one more age group contrary to aforesaid Rule, bifurcating candidates belonging to age group of 29 years to 40 years into two categories, i.e. 29-33 years and 34 years to 40-years - Held, This is discrimination between persons who are similarly placed who possess requisite qualification and who possess merit are discriminated on the ground of age, which is against the constitutional scheme.

       LABOUR & SERVICES - Recruitment: [N. Kumar & H.S. Kempanna, JJ] Karnataka Civil Services Act (1978), Sections 3(2) (a), 3(1) and 8 - Karnataka Civil Services (Unfilled Vacancies Reserved for Persons Belonging to SC/ST) (Special Recruitment) Rules, 2001, Rule 6 - Held, Rule 6 of the Backlog Rules i.e. Rules of 2001 speaks of preparation of list of candidates for each category of post in order of merit on basis of percentage of total marks secured in the qualifying examination-The age prescribed is 18-40 years. Among them two groups are formed viz., 18-20 years and 29-40 years, Government Order was issued introducing one more age group contrary to aforesaid Rule bifurcating candidates belonging to age group of 29 years to 40 years. The right accrued to a person under the Backlog Rules, where he was between age group of 29-40 and possessed requisite merit, he would have preferential right over a person who did not possess merit even though he is more aged. By virtue of these three slabs system, merit is compromised and there is discrimination apparent on the face of the record. It was claimed that Government has not made any provision at all for persons of the age group between 28 & 29, 34 & 35, though all persons aged between 18-40 are eligible to apply. It is only the persons who are between age group of 35 and 40 get preference and then persons who are in the age group of 29-34 get preference and then the persons who are in the age group of 18 & 28 get preferences. In the bargain, persons who are in age group of 28& 29 and 24 and 35 are not even considered. Therefore, the said classification is unreasonable. This classification is arbitrary. There is no nexus sought to be achieved and merit is sacrificed. Age became sole criteria for a public employment. Therefore, this classification which is resorted to successfully excluding persons who possess requisite qualification, who belong to the same age group and who did not opt for contract employment, are kept away from employment, which is violative of Articles 14 & 16 of the Constitution.

       LABOUR & SERVICES - Recruitment: [N. Kumar & H.S. Kempanna, JJ] Recruitment of engineers - Karnataka Civil Services Act (1978), Sections 3(2) (a), 3(1) and 8 - Karnataka Civil Services (Unfilled Vacancies Reserved for Persons Belonging to SC/ST) (Special Recruitment) Rules, 2001, Rule 6 - Held, Assistant and Junior Engineers have to be recruited on contract basis, Rule 15 of the Karnataka Civil Services (General Recruitment) Rules, 1977 provided for recruitment on contract basis. Therefore, the entire field for recruitment of engineers to fill up the backlog vacancies either as permanent employees or on contract basis was governed by these Rules. Therefore, when the field was governed by the Rules providing for recruitment, the question of the State exercising its power under Article 162 of the Constitution would not arise. The executive power of the State under Article 162 is co-extensive with that of legislative power of the States. Therefore, it is competent for the State Government to regulate recruitment and conditions of service relating to the service under them in exercise of executive power, in the absence of legislation or statutory Rules framed under proviso to Article 309 of the Constitution. But, once the field is occupied either by legislation or by statutory Rules it is not open to the executive to act contrary to or ignoring the statutory provisions. In the instant case there is legislation as well as the statutory Rules to regulate recruitment and conditions of service relation to the service under them and also to fill up backlog vacancies. The Governor of Karnataka, by virtue of the proviso to Article 309 of the Constitution of India, had made the Karnataka Civil Services (Classification, Control, and Appeal) Rules, 1957, which defined who is the appointing authority and how appointments should be made to State Civil Service. Again by virtue of the aforesaid provision the Governor has made the Karnataka Civil Services (General Recruitment) Rules, 1977 providing for method of recruitment and procedure of appointment as well as for appointment by contract. The Karnataka Legislature by virtue of the power conferred under Clause (2) of Article 187, Clause (2) of Article 229 and Article 309 and under entries 3 & 41 of List II of the Seventh Schedule to the Constitution of India has passed the Karnataka State Civil Services Act, 1978 for regulating the recruitment and the conditions of service of persons appointed to public service and posts in connection with the affairs of the State of Karnataka. Bu virtue of the power conferred by sub-section (1) of Section 3 read with Section 8 of the aforesaid Act, the Government of Karnataka has made the Karnataka Public Works (Irrigation Services) (Recruitment of Assistant Engineers and Junior Engineers) (Special) Rules, 1998 to recruit Assistant and Junior Engineers in the Department, providing for the manner and method of selection and for their appointment. Lastly, again by invoking the very same provision the Government of Karnataka made the Karnataka Civil Services (Unfilled Vacancies Reserved for Persons Belonging to Scheduled Caste/Scheduled Tribes) (Special Recruitment) Rules, 2001, i.e., Backlog Rules providing for age relaxation, made and manner of selection to the backlog vacancies. Inspite of availability of such legislation and the Rules, and when the field is completely occupied, the executive acted contrary to the statutory provisions in the matter of recruitment. Therefore, the Government order issued under the purported exercise of the executive power under Article 162 of the Constitution is void ab initio.

       LABOUR & SERVICES -Recruitment: [N. Kumar & H.S. Kempanna, JJ] Recruitment of engineers - Karnataka Civil Services (Absorption of Persons Appointed on Contract Basis against Backlog Vacancies in the Category of Assistant Engineers and Junior Engineers) in the Departments of the Public Works Engineering, Water Resources and Rural Development and Panchayath Raj (Special Rules) (2005), Rule 3 & 4 - Rules providing for absorption/regularization of contract engineers-Denying opportunity to other engineers and candidates belonging to SC/ST having requisite qualification -Validity being questioned - Held, Absorption Rules of 2005 are violative of Article 14 & 16 of Constitution on ground that they provide for absorption of contract engineers denying opportunity to SC/ST candidate and also other engineers having requisite qualification. There is no intelligible differentia to treat these contract engineers as a class by themselves so as to exclude the other engineers who possess requisite qualification and who belong to the same age group from being appointed as engineers in the State service. Further, the Government Order provided that their appointment was temporary for period of 12 months. Therefore, when no right is conferred on them, when it is expressly stated in the Government Order that they are not entitled for absorption in service and also not entitled for permanent appointment and the said appointment may be cancelled or terminated at any time without hearing, notice, they could not have been absorbed in service contrary to the terms of their appointment. the absorption is illegal and does not confer any right on the persons absorbed. The State at the first instance cannot create an artificial class, bypassing the law and then contend that they form a class by themselves and thereafter contend that equality clause contained in Article 14 of the Constitution is not applicable to them and they have to be treated separately. If this modus operendi is permitted, then Article 14 of the Constitution would be rendered illusory. Moreover, a right in law exists only when it has a lawful origin. There is no nexus between classification and the object sought to be achieved. The ultimate object was to provide employment in the State to all eligible engineers belonging to Scheduled castes and Scheduled Tribes who possess requisite qualification, and who are meritorious. But those who had secured employment elsewhere on the basis of merit are discriminated and persons who could not secure employment are preferred to the State service. Therefore, these impugned rules are violative of Articles 14 & 16 of the Constitution.

       LABOUR & SERVICES - Recruitment: [N. Kumar & H.S. Kempanna, JJ] Recruitment of engineers - Karnataka Civil Services (Absorption of Persons Appointed on Contract Basis against Backlog Vacancies in the Category of Assistant Engineers and Junior Engineers) in the Departments of the Public Works Engineering, Water Resources and Rural Development and Panchayath Raj (Special Rules) (2005), Rule 3, 4 & 5 - Karnataka Civil Services (Unfilled Vacancies Reserved for persons belonging to SC/ST) (Special Recruitment) Rules, 2001, Rule 6 - Validity of Absorption Rules of 2005 - Held, When the Government enacted the Backlog Rules i.e. Rules of 2001 with the sole object of providing employment to all eligible duly qualified engineers belonging to the Scheduled Caste and Scheduled Tribes any further sub-ordinate legislation made by the State cannot run counter to such intention. Article 14 & 16 of the Constitution confers the right on all persons belonging to Schedule Caste and Scheduled Tribes to seek employment in Government under the Back log Rules. By the subordinate legislation an artificial classification is made by employing a non-obstante clause and the General Rules which cater to needs and requirement of all persons who are similarly placed are excluded. Non-obstante clause in absorption Rules would not save the same from vice of unconstitutionality. Therefore, these impugned Rules run counter to the Backlog Rules which is the general rule which equally applies to all persons belonging to Schedules Caste and Scheduled Tribes and therefore are liable to be quashed.

       LABOUR & SERVICES -Recruitment: [N. Kumar & H.S. Kempanna, JJ] Recruitment of engineers - Karnataka Civil Services Act, 1978, Sections 3 & 8 - Karnataka Civil Services (Absorption of Persons Appointed on Contract Basis Against Backlog Vacancies in the Category of Assistant Engineers and Junior Engineers) in the Departments of the Public Works Engineering, Water Resources and Rural Development and Panchayath Raj (Special Rules), 2005, Rule 3, 4 & 5 - Karnataka Civil Services (Unfilled Vacancies Reserved for persons Belonging to SC/ST) (Special Recruitment) Rules, 2001, Rule 6 -Validity of Absorption Rules of 2005 - Challenge to Backlog Rules of 2001 before Tribunal - Government giving undertaking to act inconformity with suggestion of Tribunal and even issuing Government Order accordingly, cannot resile from such undertaking and pass Absorption Rules of 2005 which were unconstitutional.

       LABOUR & SERVICES - Regularisation of service: [N.Kumar & H.S. Kempanna, JJ Appointments made in violation of the mandatory provisions of the statute would be illegal such illegality cannot be cured by taking recourse to regularisation - Held, Regularisation is not a mode of appointment. Absorption by way of regularisation is a misnomer. Regularisation is not a mode of recruitment/appointment. Regularisation cannot give permanence to an employee who is appointed on contract basis or temporarily or as daily wages. By regularisation an illegal appointment cannot be regularised. If in the process of recruitment, there is some non-compliance of the procedure, which does not go to the root of the appointment, such an irregularity could be condoned by way of regularisation. By way of absorption such an irregularity cannot be condoned. The condition precedent for absorption, is, the person to be absorbed should have been recruited into service validly. A valid appointment is a sine qua non for absorption. Such an appointment does not require regularisation. Therefore absorption by way of regularisation is a misnomer. If an illegal or irregular appointment is sought to be regularised by way of absorption, the absorption becomes bad, and the absorption confers no right to the person in the post to which he is absorbed. The Law regarding regularisation is now settled by the decision of the Constitution Bench of the Apex Court in Secretary, State of Karnataka & ors., vs Umadevi & ors., [2006 AIR SCW 1991 : AIR 2006 SC 1806 : 2006 (4) SCC 1 : 2006 (4) JT 420 : 2006 (4) Scale 197 : 2006-II-LLJ 722 (SC) : 2006 (3) AIR Kar R 320 : ILR 2006 (3) Kar 2607 : 2006 (4) KLJ 29 : 2006 (3) KCCR SN 153]. When an attempt was made to dilute the said law, the larger Bench found fault with such an attempt and declared the said judgment as only a obiter and not a binding decision on the High Court. A series of judgments of the Apex Court have reiterated the said legal position. Therefore, the said judgment holds the field.